NOMURA ASSET ACCEPTANCE CORPORATION, Depositor NOMURA CREDIT & CAPITAL, INC., Sponsor WELLS FARGO BANK, NATIONAL ASSOCIATION, Master Servicer and Securities Administrator and HSBC BANK USA, NATIONAL ASSOCIATION Trustee POOLING AND SERVICING AGREEMENT...
NOMURA
ASSET ACCEPTANCE CORPORATION,
Depositor
NOMURA
CREDIT & CAPITAL, INC.,
Sponsor
XXXXX
FARGO BANK, NATIONAL ASSOCIATION,
Master
Servicer and Securities Administrator
and
HSBC
BANK
USA, NATIONAL ASSOCIATION
Trustee
Dated
as
of August 1, 2006
NOMURA
ASSET ACCEPTANCE CORPORATION
MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 2006-WF1
TABLE
OF CONTENTS
ARTICLE
I
DEFINITIONS
|
Section
1.01
|
Defined
Terms.
|
|
Section
1.02
|
Allocation
of Certain Interest Shortfalls.
|
ARTICLE
II
CONVEYANCE
OF TRUST FUND REPRESENTATIONS AND WARRANTIES
|
Section
2.01
|
Conveyance
of Trust Fund.
|
|
Section
2.02
|
Acceptance
of the Mortgage Loans.
|
|
Section
2.03
|
Representations,
Warranties and Covenants of the Sponsor and the Master
Servicer.
|
|
Section
2.04
|
Representations
and Warranties of the Depositor.
|
|
Section
2.05
|
Delivery
of Opinion of Counsel in Connection with Substitutions and
Repurchases.
|
|
Section
2.06
|
Issuance
of the REMIC I Regular Interests.
|
|
Section
2.07
|
Conveyance
of the REMIC I Regular Interests; Issuance and Conveyance of the
Class X
Interest, the Class P Interest, and the Class IO Interest.
|
|
Section
2.08
|
Issuance
of the Class R Certificates and the Class R-X
Certificates.
|
|
Section
2.09
|
Establishment
of Trust.
|
|
Section
2.10
|
Purpose
and Powers of the Trust.
|
ARTICLE
III
ADMINISTRATION
OF THE MORTGAGE LOANS; ACCOUNTS
|
Section
3.01
|
Reserved.
|
|
Section
3.02
|
Reserved.
|
|
Section
3.03
|
Reserved.
|
|
Section
3.04
|
Reserved.
|
|
Section
3.05
|
Reserved.
|
|
Section
3.06
|
Reserved.
|
|
Section
3.07
|
Reserved.
|
|
Section
3.08
|
Reserved.
|
|
Section
3.09
|
Reserved.
|
|
Section
3.10
|
Reserved.
|
|
Section
3.11
|
Reserved.
|
|
Section
3.12
|
Reserved.
|
|
Section
3.13
|
Annual
Statement as to Compliance.
|
|
Section
3.14
|
Assessments
of Compliance and Attestation Reports.
|
|
Section
3.15
|
Reserved.
|
|
Section
3.16
|
The
Trustee.
|
|
Section
3.17
|
REMIC-Related
Covenants.
|
|
Section
3.18
|
Annual
Xxxxxxxx-Xxxxx Certification; Additional Information.
|
|
Section
3.19
|
Release
of Mortgage Files.
|
|
Section
3.20
|
Reserved.
|
|
Section
3.21
|
Reserved.
|
|
Section
3.22
|
Reserved.
|
|
Section
3.23
|
Reserved.
|
|
Section
3.24
|
Optional
Purchase of Defaulted Mortgage Loans.
|
|
Section
3.25
|
Obligations
of the Servicer Under Credit Risk Management Agreement.
|
|
Section
3.26
|
Reserved.
|
|
Section
3.27
|
Reserved.
|
|
Section
3.28
|
Reserved.
|
|
Section
3.29
|
Reserved.
|
|
Section
3.30
|
Reserved.
|
|
Section
3.31
|
Distribution
Account.
|
|
Section
3.32
|
Permitted
Withdrawals and Transfers from the Distribution Account.
|
|
Section
3.33
|
Duties
of the Credit Risk Manager; Termination.
|
|
Section
3.34
|
Limitation
Upon Liability of the Credit Risk Manager.
|
ARTICLE
IV
ADMINISTRATION
AND MASTER SERVICING OF THE MORTGAGE LOANS
|
Section
4.01
|
The
Master Servicer.
|
|
Section
4.02
|
Monitoring
of Servicer.
|
|
Section
4.03
|
Fidelity
Bond.
|
|
Section
4.04
|
Power
to Act; Procedures.
|
|
Section
4.05
|
Due-on-Sale
Clauses; Assumption Agreements.
|
|
Section
4.06
|
Documents,
Records and Funds in Possession of Master Servicer To Be Held for
Trustee.
|
|
Section
4.07
|
Standard
Hazard Insurance and Flood Insurance Policies.
|
|
Section
4.08
|
Presentment
of Claims and Collection of Proceeds.
|
|
Section
4.09
|
Maintenance
of the Primary Mortgage Insurance Policies.
|
|
Section
4.10
|
Trustee
to Retain Possession of Certain Insurance Policies and
Documents.
|
|
Section
4.11
|
Realization
Upon Defaulted Loans.
|
|
Section
4.12
|
Compensation
for the Master Servicer.
|
|
Section
4.13
|
REO
Property.
|
|
Section
4.14
|
Obligation
of the Master Servicer in Respect of Prepayment Interest
Shortfalls.
|
ARTICLE
V
ADVANCES
AND DISTRIBUTIONS
|
Section
5.01
|
Advances.
|
|
Section
5.02
|
Compensating
Interest Payments.
|
|
Section
5.03
|
REMIC
Distributions.
|
|
Section
5.04
|
Distributions.
|
|
Section
5.05
|
Allocation
of Realized Losses.
|
|
Section
5.06
|
Reserved.
|
|
Section
5.07
|
Monthly
Statements to Certificateholders.
|
|
Section
5.08
|
REMIC
Designations and REMIC Allocations.
|
|
Section
5.09
|
Prepayment
Charges.
|
|
Section
5.10
|
Class
P Certificate Account.
|
|
Section
5.11
|
Net
WAC Reserve Fund.
|
|
Section
5.12
|
Reports
Filed with Securities and Exchange Commission.
|
ARTICLE
VI
THE
CERTIFICATES
|
Section
6.01
|
The
Certificates.
|
|
Section
6.02
|
Certificate
Register; Registration of Transfer and Exchange of
Certificates.
|
|
Section
6.03
|
Mutilated,
Destroyed, Lost or Stolen Certificates.
|
|
Section
6.04
|
Persons
Deemed Owners.
|
|
Section
6.05
|
Access
to List of Certificateholders’ Names and Addresses.
|
|
Section
6.06
|
Book-Entry
Certificates.
|
|
Section
6.07
|
Notices
to Depository.
|
|
Section
6.08
|
Definitive
Certificates.
|
|
Section
6.09
|
Maintenance
of Office or Agency.
|
ARTICLE
VII
THE
DEPOSITOR AND THE MASTER SERVICER
|
Section
7.01
|
Liabilities
of the Depositor and the Master Servicer.
|
|
Section
7.02
|
Merger
or Consolidation of the Depositor or the Master Servicer.
|
|
Section
7.03
|
Indemnification
of the Depositor and Servicing Function Participants.
|
|
Section
7.04
|
Limitations
on Liability of the Depositor, Securities Administrator, Master Servicer,
Servicer and Others.
|
|
Section
7.05
|
Reserved.
|
|
Section
7.06
|
Appointment
of Special Servicer.
|
|
Section
7.07
|
Limitation
on Resignation of the Master Servicer.
|
|
Section
7.08
|
Assignment
of Master Servicing.
|
|
Section
7.09
|
Rights
of the Depositor in Respect of the Master Servicer.
|
ARTICLE
VIII
DEFAULT;
TERMINATION OF SERVICER AND MASTER SERVICER
|
Section
8.01
|
Events
of Default.
|
|
Section
8.02
|
Master
Servicer to Act; Appointment of Successor.
|
|
Section
8.03
|
Notification
to Certificateholders.
|
|
Section
8.04
|
Waiver
of Servicer Defaults and Master Servicer Defaults.
|
ARTICLE
IX
CONCERNING
THE TRUSTEE AND SECURITIES ADMINISTRATOR
|
Section
9.01
|
Duties
of Trustee and Securities Administrator.
|
|
Section
9.02
|
Certain
Matters Affecting the Trustee and Securities
Administrator.
|
|
Section
9.03
|
Trustee
and Securities Administrator not Liable for Certificates or Mortgage
Loans.
|
|
Section
9.04
|
Trustee
and Securities Administrator May Own Certificates.
|
|
Section
9.05
|
Fees
and Expenses of Trustee and Securities Administrator.
|
|
Section
9.06
|
Eligibility
Requirements for Trustee and Securities Administrator.
|
|
Section
9.07
|
Resignation
and Removal of Trustee and Securities Administrator.
|
|
Section
9.08
|
Successor
Trustee or Securities Administrator.
|
|
Section
9.09
|
Merger
or Consolidation of Trustee or Securities Administrator.
|
|
Section
9.10
|
Appointment
of Co-Trustee or Separate Trustee.
|
|
Section
9.11
|
Appointment
of Office or Agency.
|
|
Section
9.12
|
Representations
and Warranties.
|
|
Section
9.13
|
Tax
Matters.
|
ARTICLE
X
TERMINATION
|
Section
10.01
|
Termination
Upon Liquidation or Repurchase of all Mortgage Loans.
|
|
Section
10.02
|
Final
Distribution on the Certificates.
|
|
Section
10.03
|
Additional
Termination Requirements.
|
ARTICLE
XI
MISCELLANEOUS
PROVISIONS
|
Section
11.01
|
Amendment.
|
|
Section
11.02
|
Recordation
of Agreement; Counterparts.
|
|
Section
11.03
|
Governing
Law.
|
|
Section
11.04
|
Intention
of Parties.
|
|
Section
11.05
|
Notices.
|
|
Section
11.06
|
Severability
of Provisions.
|
|
Section
11.07
|
Assignment.
|
|
Section
11.08
|
Limitation
on Rights of Certificateholders.
|
|
Section
11.09
|
Certificates
Nonassessable and Fully Paid.
|
|
Section
11.10
|
Intention
of the Parties and Interpretation.
|
|
Section
11.11
|
Early
Termination of the Cap Contract.
|
EXHIITS
|
Exhibit
A-1
|
Form
of Class A-[1][2][3][4][5][6] Certificates
|
|
|
Exhibit
A-2
|
Form
of Class M-[1][2][3][4] Certificates
|
|
|
Exhibit
A-3
|
Form
of Class P Certificates
|
|
|
Exhibit
A-4
|
Form
of Class R Certificates
|
|
|
Exhibit
A-5
|
Form
of Class X Certificates
|
|
|
Exhibit
A-6
|
Form
of Class R-X Certificates
|
|
|
Exhibit
B
|
Mortgage
Loan Schedule
|
|
|
Exhibit
C
|
Form
of Mortgage Loan Purchase Agreement
|
|
|
Exhibit
D
|
Form
of Transfer Affidavit
|
|
|
Exhibit
E
|
Form
of Transferor Certificate
|
|
|
Exhibit
F
|
Form
of Investment Letter (Non-Rule 144A)
|
|
|
Exhibit
G
|
Form
of Rule 144A Investment Letter
|
|
|
Exhibit
H
|
Form
of Additional Disclosure Notification
|
|
|
Exhibit
I
|
DTC
Letter of Representations
|
|
|
Exhibit
J
|
Schedule
of Mortgage Loans with Lost Notes
|
|
|
Exhibit
K
|
Appendix
E of the Standard & Poor's Glossary For File Format For LEVELS®
Version 5.6 Revised
|
|
|
Exhibit
L
|
Relevant
Servicing Criteria
|
|
|
Exhibit
M
|
Form
of Back-Up Certification
|
|
|
Exhibit
N
|
Reporting
Responsibility
|
|
|
Exhibit
O
|
Assignment,
Assumption and Recognition Agreement
|
|
|
Exhibit
P
|
Cap
Contract
|
|
|
Exhibit
X-1
|
Form
of Schedule of Default Loan Data
|
|
|
Exhibit
X-2
|
Standard
File Layout - Delinquency Reporting
|
|
|
Exhibit
X-3
|
Form
of Schedule of Realized Losses/Gains
|
|
|
Schedule
I
|
PMI
Coverage Percentage
|
POOLING
AND SERVICING AGREEMENT, dated as of August 1, 2006, among NOMURA ASSET
ACCEPTANCE CORPORATION, a Delaware corporation, as depositor (the “Depositor”),
NOMURA CREDIT & CAPITAL, INC., a Delaware corporation, as seller (in such
capacity, the “Sponsor”), XXXXX FARGO BANK, NATIONAL ASSOCIATION, a national
banking association, as master servicer (the “Master Servicer”) and securities
administrator (the “Securities Administrator”) and HSBC BANK, USA, NATIONAL
ASSOCIATION, a national banking association, not in its individual capacity,
but
solely as trustee (the “Trustee”).
PRELIMINARY
STATEMENT
The
Depositor is the owner of the Trust Fund that is hereby conveyed to the Trustee
in return for the Certificates.
REMIC I
As
provided herein, the Securities Administrator will make an election to treat
the
segregated pool of assets consisting of the Mortgage Loans and certain other
related assets as set forth in the definition of REMIC I (and exclusive of
the
Cap Contact and the Net WAC Reserve Fund) subject to this Agreement as a real
estate mortgage investment conduit (a “REMIC”) for federal income tax purposes,
and such segregated pool of assets will be designated as “REMIC I”. The
Class R-1 Interest will represent the sole class of “residual interests” in
REMIC I for purposes of the REMIC Provisions (as defined herein) under
federal income tax law. The following table irrevocably sets forth the
designation, the Uncertificated REMIC I Pass-Through Rate, the Initial
Uncertificated Principal Balance, and for purposes of satisfying Treasury
regulation Section 1.860G-1(a)(4)(iii), the “latest possible maturity date”
for each of the REMIC IA Regular Interests. None of the REMIC I
Regular Interests will be certificated.
|
Designation
|
Initial
Uncertificated
Principal
Balance
|
Uncertificated
REMIC I
Pass-Through
Rate
|
Assumed
Final
Maturity
Date(1)
|
|
LT-AA
|
$ 334,159,462.12
|
Xxxxxxxx(0)
|
Xxxx
00, 0000
|
|
XX-X0
|
$
1,339,550.00
|
Xxxxxxxx(0)
|
Xxxx
00, 0000
|
|
XX-X0
|
$
284,800.00
|
Xxxxxxxx(0)
|
Xxxx
00, 0000
|
|
XX-X0
|
$
378,860.00
|
Xxxxxxxx(0)
|
Xxxx
00, 0000
|
|
XX-X0
|
$
504,230.00
|
Xxxxxxxx(0)
|
Xxxx
00, 0000
|
|
XX-X0
|
$
261,490.00
|
Xxxxxxxx(0)
|
Xxxx
00, 0000
|
|
XX-X0
|
$ 306,700.00
|
Xxxxxxxx(0)
|
Xxxx
00, 0000
|
|
XX-X0
|
$
117,640.00
|
Xxxxxxxx(0)
|
Xxxx
00, 0000
|
|
XX-X0
|
$
104,000.00
|
Xxxxxxxx(0)
|
Xxxx
00, 0000
|
|
XX-X0
|
$
59,670.00
|
Xxxxxxxx(0)
|
Xxxx
00, 0000
|
|
XX-X0
|
$
34,100.00
|
Variable(2)
|
June
25, 2036
|
|
LT-ZZ
|
$
3,428,540.86
|
Xxxxxxxx(0)
|
Xxxx
00, 0000
|
|
XX-X
|
$ 100.00
|
N/A
|
June
25, 2036
|
___________________
|
(1)
|
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the Distribution Date in the month following the maturity date for
the
Mortgage Loan with the latest maturity date has been designated as
the
“latest possible maturity date” for each REMIC I Regular
Interest.
|
|
(2)
|
Calculated
in accordance with the definition of “Uncertificated REMIC I
Pass-Through Rate” herein.
|
REMIC II
As
provided herein, the Securities Administrator will make an election to treat
the
segregated pool of assets consisting of the REMIC I Regular Interests as a
REMIC for federal income tax purposes, and such segregated pool of assets will
be designated as “REMIC II”. The Class R-2 Interest will represent the sole
class of “residual interests” in REMIC II for purposes of the REMIC
Provisions. The following table irrevocably sets forth the Class designation,
Pass-Through Rate and Initial Certificate Principal Balance for each Class
of
Certificates that represents one or more of the “regular interests” in
REMIC II created hereunder:
|
Class
Designation
|
Initial
Certificate
Principal
Balance
|
Pass-Through
Rate
|
Assumed
Final
Maturity
Date(1)
|
|
Class
A-1
|
$
133,955,000
|
Class
A-1 Pass-Through Rate
|
June
25, 2036
|
|
Class
A-2
|
$
28,480,000
|
Class
A-2 Pass-Through Rate
|
June
25, 2036
|
|
Class
A-3
|
$
37,886,000
|
Class
A-3 Pass-Through Rate
|
June
25, 2036
|
|
Class
A-4
|
$
50,423,000
|
Class
A-4 Pass-Through Rate
|
June
25, 2036
|
|
Class
A-5
|
$
26,149,000
|
Class
A-5 Pass-Through Rate
|
June
25, 2036
|
|
Class
A-6
|
$
30,670,000
|
Class
A-6 Pass-Through Rate
|
June
25, 2036
|
|
Class
M-1
|
$
11,764,000
|
Class
M-1 Pass-Through Rate
|
June
25, 2036
|
|
Class
M-2
|
$
10,400,000
|
Class
M-2 Pass-Through Rate
|
June
25, 2036
|
|
Class
M-3
|
$
5,967,000
|
Class
M-3 Pass-Through Rate
|
June
25, 2036
|
|
Class
M-4
|
$
3,410,000
|
Class
M-4 Pass-Through Rate
|
June
25, 2036
|
|
Class
X Interest
|
$1,875,042.98 (2)
|
Class
X Pass-Through Rate
|
June
25, 2036
|
|
Class
P Interest
|
$
100.00
|
N/A(3)
|
June
25, 2036
|
___________________
|
(1)
|
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the Distribution Date in the month following the maturity date for
the
Mortgage Loan with the latest maturity date has been designated as
the
“latest possible maturity date” for each Class of
Certificates.
|
|
(2)
|
The
Class X Interest will not accrue interest on its Certificate Principal
Balance, but will accrue interest at the Class X Pass-Through Rate
on the
Certificate Notional Balance of the Class X Interest outstanding
from time
to time which shall equal the aggregate of the Uncertificated Principal
Balances of the REMIC I Regular Interests (other than REMIC I
Regular Interest LT-P).
|
|
(3)
|
The
Class P Interest will not be entitled to distributions in respect
of
interest.
|
REMIC
III
As
provided herein, the Securities Administrator will make an election to treat
the
segregated pool of assets consisting of the Class X Interest Interests as a
REMIC for federal income tax purposes, and such segregated pool of assets will
be designated as “REMIC III”. The R-3 Interest will represent the sole class of
“residual interests” in REMIC III for purposes of the REMIC Provisions. The
following table irrevocably sets forth the Class designation, Pass-Through
Rate
and Initial Certificate Principal Balance for each Class of Certificates that
represents one or more of the “regular interests” in REMIC III created
hereunder:
|
Class
Designation
|
Initial
Certificate
Principal
Balance
|
Pass-Through
Rate
|
Assumed
Final
Distribution
Date(1)
|
|
Class
X
|
$
[
]
|
(2)
|
June
25, 2036
|
___________________
|
(1)
|
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the Distribution Date in the second month following the maturity
date for
the Mortgage Loan with the latest maturity date has been designated
as the
“latest possible maturity date” for the Class X
Certificates.
|
|
(2)
|
The
Class X Certificates will be entitled to 100% of amounts distributed
on
the Class X Interest.
|
REMIC
IV
As
provided herein, the Securities Administrator will make an election to treat
the
segregated pool of assets consisting of the Class P Interest Interests as a
REMIC for federal income tax purposes, and such segregated pool of assets will
be designated as “REMIC IV”. The R-4 Interest will represent the sole class of
“residual interests” in REMIC IV for purposes of the REMIC Provisions. The
following table irrevocably sets forth the Class designation, Pass-Through
Rate
and Initial Certificate Principal Balance for each Class of Certificates that
represents one or more of the “regular interests” in REMIC IV created
hereunder:
|
Class
Designation
|
Initial
Certificate
Principal
Balance
|
Pass-Through
Rate
|
Assumed
Final
Distribution
Date(1)
|
|
Class
P
|
$ 100
|
(2)
|
June
25, 2036
|
___________________
|
(1)
|
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the Distribution Date in the second month following the maturity
date for
the Mortgage Loan with the latest maturity date has been designated
as the
“latest possible maturity date” for the Class P
Certificates.
|
|
(2)
|
The
Class P Certificates will be entitled to 100% of amounts distributed
on
the Class P Interest.
|
REMIC
V
As
provided herein, the Securities Administrator will make an election to treat
the
segregated pool of assets consisting of the Class IO Interest as a REMIC for
federal income tax purposes, and such segregated pool of assets will be
designated as “REMIC V”. The R-5 interest will represent the sole class of
“residual interests” in REMIC V for purposes of the REMIC Provisions. The
following table irrevocably sets forth the Class designation, Pass-Through
Rate
and Initial Certificate Principal Balance for each Class of Certificates that
represents one or more of the “regular interests” in REMIC V created
hereunder:
|
Class
Designation
|
Initial
Certificate
Notional
Balance
|
Pass-Through
Rate
|
Assumed
Final
Distribution
Date(1)
|
|
Swap-IO
|
(2)
|
(3)
|
June
25, 2036
|
___________________
|
(1)
|
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the Distribution Date in the second month following the maturity
date for
the Mortgage Loan with the latest maturity date has been designated
as the
“latest possible maturity date” for REMIC VI Regular Interest
Swap-IO.
|
|
(2)
|
REMIC
VI Regular Interest Swap-IO will have not a Certificate Notional
Balance
but will be entitled to 100% of amounts distributed on the Class
IO
Interest.
|
|
(3)
|
REMIC
VI Regular Interest Swap-IO will be entitled to 100% of amounts
distributed on the Class IO Interest.
|
In
consideration of the mutual agreements herein contained, the Depositor, the
Master Servicer, the Securities Administrator, the Sponsor and the Trustee
agree
as follows:
ARTICLE
I
DEFINITIONS
Section
1.01 Defined
Terms.
In
addition to those terms defined in Section 1.02, whenever used in this
Agreement, the following words and phrases, unless the context otherwise
requires, shall have the following meanings:
Accepted
Master Servicing Practices:
With
respect to any Mortgage Loan, those customary mortgage master servicing
practices of prudent mortgage servicing institutions that master service
mortgage loans of the same type and quality as such Mortgage Loan in the
jurisdiction where the related Mortgaged Property is located, to the extent
applicable to the Master Servicer.
Account:
Either
the Distribution Account or the Custodial Account.
Accrual
Period:
With
respect to the Certificates (other than the Class A-1 Certificates), the
calendar month immediately preceding such Distribution Date. With respect to
the
Class A-1 Certificates and any Distribution Date, the period commencing on
the
immediately preceding Distribution Date (or with respect to the first Accrual
Period, the Closing Date) and ending on the day immediately preceding the
related Distribution Date. All calculations of interest on the Certificates
(other than the Class A-1 Certificates) will be based on a 360-day year
consisting of twelve 30-day months. All calculations of interest on the Class
A-1 Certificates will be made based on a 360-day year and the actual number
of
days elapsed in the related Accrual Period.
Additional
Disclosure Notification:
Has the
meaning set forth in Section 5.12 of this Agreement.
Additional
Form 10-D Disclosure:
Has the
meaning set forth in Section 5.12(a) of this Agreement.
Additional
Form 10-K Disclosure:
Has the
meaning set forth in Section 5.12(d) of this Agreement.
Advance:
An
advance of delinquent payments of principal or interest in respect of a Mortgage
Loan required to be made by the Servicer pursuant to the Servicing Agreement
or
by the Trustee pursuant to Section 5.01.
Aggregate
Loan Balance:
With
respect to any Distribution Date, the aggregate of the Stated Principal Balances
of the Mortgage Loans as of the last day of the related Due Period.
Agreement:
This
Pooling and Servicing Agreement and any and all amendments or supplements hereto
made in accordance with the terms herein.
Appraised
Value:
With
respect to any Mortgage Loan originated in connection with a refinancing, the
appraised value of the Mortgaged Property based upon the appraisal made at
the
time of such refinancing or, with respect to any other Mortgage Loan, the lesser
of (x) the appraised value of the Mortgaged Property based upon the appraisal
made by a fee appraiser at the time of the origination of the Mortgage Loan,
and
(y) the sales price of the Mortgaged Property at the time of such
origination.
Assignment
Agreement:
Shall
mean the Assignment, Assumption and Recognition Agreement, dated as of August
31, 2006, among the Sponsor, the Depositor and the Servicer, pursuant to which
the Servicing Agreement was assigned to the Depositor, a copy of which is
attached hereto as Exhibit O.
Assumed
Final Distribution Date:
The
Distribution Date in July 2036.
Authorized
Servicer Representative:
Any
officer of the Servicer involved in, or responsible for, the administration
and
servicing of the Mortgage Loans whose name and facsimile signature appear on
a
list of servicing officers furnished to the Trustee and the Master Servicer
by
the Servicer on the Closing Date, as such list may from time to time be
amended.
Available
Distribution Amount:
The sum
of the Interest Remittance Amount and Principal Funds, exclusive of amounts
pursuant to Section 5.09.
Bankruptcy
Code:
Title
11 of the United States Code.
Book-Entry
Certificates:
Any of
the Certificates that shall be registered in the name of the Depository or
its
nominee, the ownership of which is reflected on the books of the Depository
or
on the books of a person maintaining an account with the Depository (directly,
as a “Depository Participant”, or indirectly, as an indirect participant in
accordance with the rules of the Depository and as described in
Section 6.06). As of the Closing Date, each Class of Publicly Offered
Certificates constitutes a Class of Book-Entry Certificates.
Business
Day:
Any day
other than (i) a Saturday or a Sunday, or (ii) a day on which banking
institutions in the State of New York, the State of Delaware, the State of
Maryland, the State of Minnesota, the city in which any Corporate Trust Office
of the Securities Administrator or the Trustee is located or the States in
which
the Servicer’s servicing operations are located are authorized or obligated by
law or executive order to be closed.
Cap
Contract:
Shall
mean the cap contract between the Trustee and the Cap Provider, for the benefit
of the Holders of the Class A-1 Certificates attached hereto as Exhibit
P.
Cap
Provider:
Nomura
Global Financial Products Inc., or any successor thereto.
Certificate:
Any one
of the certificates of any Class executed and authenticated by the Securities
Administrator in substantially the forms attached hereto as Exhibits A-1 through
A-5.
Certificate
Notional Balance:
With
respect to the Class X Certificates and any Distribution Date, the
Uncertificated Principal Balance of the REMIC I Regular Interests (other
than REMIC I Regular Interest LT-P) for such Distribution Date. As of the
Closing Date, the Certificate Notional Balance of the Class X Certificates
is
equal to $1,875,043.00.
Certificate
Owner:
With
respect to a Book-Entry Certificate, the Person that is the beneficial owner
of
such Book-Entry Certificate.
Certificate
Principal Balance:
As to
any class of Publicly Offered Certificate and as of any Distribution Date,
the
Initial Certificate Principal Balance of such Certificate plus any Subsequent
Recoveries added to the Certificate Principal Balance of such Certificate
pursuant to Section 5.05(f) less the sum of (i) all amounts distributed
with respect to such Certificate in reduction of the Certificate Principal
Balance thereof on previous Distribution Dates pursuant to Section 5.04,
and (ii) with respect to the Mezzanine Certificates, any reductions in the
Certificate Principal Balance of such Certificate deemed to have occurred in
connection with the allocations of Realized Losses, if any. The initial
Certificate Principal Balance of the Class P Certificates is equal to $100.
References
herein to the Certificate Principal Balance of a Class of Certificates shall
mean the Certificate Principal Balances of all Certificates in such Class.
Certificate
Register:
The
register maintained pursuant to Section 6.02.
Certificateholder
or Holder:
The
person in whose name a Certificate is registered in the Certificate Register
(initially, Cede & Co., as nominee for the Depository, in the case of any
Book-Entry Certificates).
Certification
Parties:
Has the
meaning set forth in Section 3.18 of this Agreement.
Certifying
Person:
Has the
meaning set forth in Section 3.18 of this Agreement.
Class:
All
Certificates bearing the same Class designation as set forth in
Section 6.01.
Class
A-1 Certificate:
Any
Certificate designated as a “Class A-1 Certificate” on the face thereof, in the
form of Exhibit
A-1
hereto,
representing the right to the Percentage Interest of distributions provided
for
the Class A-1 Certificates as set forth herein and evidencing a Regular Interest
in REMIC II.
Class
A-1 Pass-Through Rate:
With
respect to any Distribution Date, One-Month LIBOR plus 0.10% per annum, subject
to a cap equal to the Net WAC Rate Cap for such Distribution Date.
Class
A-2 Certificate:
Any
Certificate designated as a “Class A-2 Certificate” on the face thereof, in the
form of Exhibit
A-1
hereto,
representing the right to its Percentage Interest of distributions provided
for
the Class A-2 Certificates as set forth herein and evidencing a Regular Interest
in REMIC II.
Class
A-2 Pass-Through Rate:
With
respect to any Distribution Date, 5.755% per annum, subject to a cap equal
to
the Net WAC Rate Cap for such Distribution Date.
Class
A-3 Certificate:
Any
Certificate designated as a “Class A-3 Certificate” on the face thereof, in the
form of Exhibit
A-1
hereto,
representing the right to its Percentage Interest of distributions provided
for
the Class A-3 Certificates as set forth herein and evidencing a Regular Interest
in REMIC II.
Class
A-3 Pass-Through Rate:
With
respect to any Distribution Date, 5.769% per annum, subject to a cap equal
to
the Net WAC Rate Cap for such Distribution Date.
Class
A-4 Certificate:
Any
Certificate designated as a “Class A-4 Certificate” on the face thereof, in the
form of Exhibit
A-1
hereto,
representing the right to its Percentage Interest of distributions provided
for
the Class A-4 Certificates as set forth herein and evidencing a Regular Interest
in REMIC II.
Class
A-4 Pass-Through Rate:
With
respect to any Distribution Date, 6.026% per annum, subject to a cap equal
to
the Net WAC Rate Cap for such Distribution Date.
Class
A-5 Certificate:
Any
Certificate designated as a “Class A-5 Certificate” on the face thereof, in the
form of Exhibit
A-1
hereto,
representing the right to its Percentage Interest of distributions provided
for
the Class A-5 Certificates as set forth herein and evidencing a Regular Interest
in REMIC II.
Class
A-5 Pass-Through Rate:
Shall
mean (i) with respect to any Distribution Date which occurs on or prior to
the
Optional Termination Date, 6.257% per annum and (ii) with respect to each
Distribution Date which occurs thereafter, 6.757% per annum, in each case,
subject to a cap equal to the Net WAC Rate Cap for such Distribution
Date.
Class
A-6 Certificate:
Any
Certificate designated as a “Class A-6 Certificate” on the face thereof, in the
form of Exhibit
A-1
hereto,
representing the right to its Percentage Interest of distributions provided
for
the Class A-6 Certificates as set forth herein and evidencing a Regular Interest
in REMIC II.
Class
A-6 Pass-Through Rate:
Shall
mean (i) with respect to any Distribution Date which occurs on or prior to
the
Optional Termination Date, 5.840% per annum and (ii) with respect to each
Distribution Date which occurs thereafter, 6.340% per annum, in each case,
subject to a cap equal to the Net WAC Rate Cap for such Distribution
Date.
Class
A-6 Lockout Principal Distribution Amount:
With
respect to any Distribution Date will be an amount equal to the least of (i)
the
Certificate Principal Balance of the Class A-6 Certificates, (ii) the Senior
Principal Distribution Amount for such Distribution Date and (iii) the Class
A-6
Lockout Distribution Percentage for that Distribution Date multiplied by the
product of (x) a fraction, the numerator of which is the Certificate Principal
Balance of the Class A-6 Certificates and the denominator of which is the
aggregate Certificate Principal Balance of all of the Senior Certificates,
in
each case immediately prior to such Distribution Date and (y) the Senior
Principal Distribution Amount for such Distribution Date.
Class
A-6 Lockout Distribution Percentage:
With
respect to each Distribution Date, the applicable percentage set forth
below:
|
Distribution
Dates
|
Class
A-6 Lockout
Distribution
Percentage
|
|
September
2006 through and including August 2009
|
0%
|
|
September
2009 through and including August 2011
|
45%
|
|
September
2011 through and including August 2012
|
80%
|
|
September
2012 through and including August 2013
|
100%
|
|
September
2013 and thereafter
|
300%
|
Class
M-1 Certificate:
Any
Certificate designated as a “Class M-1 Certificate” on the face thereof, in the
form of Exhibit
A-2
hereto,
representing the right to its Percentage Interest of distributions provided
for
the Class M-1 Certificates as set forth herein and evidencing a Regular Interest
in REMIC II.
Class
M-1 Pass-Through Rate:
Shall
mean (i) with respect to each Distribution Date which occurs on or prior to
the
Optional Termination Date, 6.132% per annum and (ii) with respect to each
Distribution Date which occurs thereafter, 6.632% per annum, in each case
subject to a cap equal to the Net WAC Rate Cap for such Distribution
Date.
Class
M-1 Principal Distribution Amount:
With
respect to any Distribution Date which occurs (i) prior to the Stepdown Date
or
on or after the Stepdown Date if a Trigger Event is in effect for that
Distribution Date, the Principal Distribution Amount for that Distribution
Date
remaining after distribution of the Senior Principal Distribution Amount or
(ii)
on or after the Stepdown Date if a Trigger Event is not in effect for that
Distribution Date, the lesser of:
| · |
the
Principal Distribution Amount for that Distribution Date remaining
after
distribution of the Senior Principal Distribution Amount;
and
|
| · |
the
excess, if any, of (A) the aggregate Certificate Principal Balance
of the
Class M-1 Certificates immediately prior to that Distribution Date
over
(B) the positive difference between (i) the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due
Period
(after reduction for Realized Losses incurred during the related
Prepayment Period) and (ii) the sum of (x) the aggregate Certificate
Principal Balance of the Senior Certificates after taking into account
the
payment of the Senior Principal Distribution Amount for such Distribution
Date and (y) the product of (a) the aggregate Stated Principal Balance
of
the Mortgage Loans as of the last day of the related Due Period (after
reduction for Realized Losses incurred during the related Prepayment
Period) and (b) the sum of 11.60% and the Required Overcollateralization
Percentage.
|
Class
M-2 Certificate:
Any
Certificate designated as a “Class M-2 Certificate” on the face thereof, in the
form of Exhibit
A-2
hereto,
representing the right to its Percentage Interest of distributions provided
for
the Class M-2 Certificates as set forth herein and evidencing a Regular Interest
in REMIC II.
Class
M-2 Pass-Through Rate:
Shall
mean (i) with respect to each Distribution Date which occurs on or prior to
the
Optional Termination Date, 6.429% per annum and (ii) with respect to each
Distribution Date which occurs thereafter, 6.929% per annum, in each case
subject to a cap equal to the Net WAC Rate Cap for such Distribution
Date.
Class
M-2 Principal Distribution Amount:
With
respect to any Distribution Date which occurs (i) prior to the Stepdown Date
or
on or after the Stepdown Date if a Trigger Event is in effect for that
Distribution Date, the Principal Distribution Amount for that Distribution
Date
remaining after distribution of the Senior Principal Distribution Amount and
the
Class M-1 Principal Distribution Amount or (ii) on or after the Stepdown Date
if
a Trigger Event is not in effect for that Distribution Date, the lesser
of:
| · |
the
Principal Distribution Amount for that Distribution Date remaining
after
distribution of the Senior Principal Distribution Amount and the
Class M-1
Principal Distribution Amount; and
|
| · |
the
excess, if any, of (A) the aggregate Certificate Principal Balance
of the
Class M-2 Certificates immediately prior to that Distribution Date
over
(B) the positive difference between (i) the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due
Period
(after reduction for Realized Losses incurred during the related
Prepayment Period) and (ii) the sum of (x) the aggregate Certificate
Principal Balance of the Senior Certificates and the Class M-1
Certificates after taking into account the payment of the Senior
Principal
Distribution Amount and the Class M-1 Principal Distribution Amount
for
such Distribution Date and (y) the product of (a) the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the
related
Due Period (after reduction for Realized Losses incurred during the
related Prepayment Period) and (b) the sum of 5.50% and the Required
Overcollateralization Percentage.
|
Class
M-3 Certificate:
Any
Certificate designated as a “Class M-3 Certificate” on the face thereof, in the
form of Exhibit
A-2
hereto,
representing the right to its Percentage Interest of distributions provided
for
the Class M-3 Certificates as set forth herein and evidencing a Regular Interest
in REMIC II.
Class
M-3 Pass-Through Rate:
Shall
mean (i) with respect to each Distribution Date which occurs on or prior to
the
Optional Termination Date, 6.700% per annum and (ii) with respect to each
Distribution Date which occurs thereafter, 7.200% per annum, in each case
subject to a cap equal to the Net WAC Rate Cap for such Distribution
Date.
Class
M-3 Principal Distribution Amount:
With
respect to any Distribution Date which occurs (i) prior to the Stepdown Date
or
on or after the Stepdown Date if a Trigger Event is in effect for that
Distribution Date, the Principal Distribution Amount for that Distribution
Date
remaining after distribution of the Senior Principal Distribution Amount, the
Class M-1 Principal Distribution Amount and the Class M-2 Principal Distribution
Amount or (ii) on or after the Stepdown Date if a Trigger Event is not in effect
for that Distribution Date, the lesser of:
| · |
the
Principal Distribution Amount for that Distribution Date remaining
after
distribution of the Senior Principal Distribution Amount, the Class
M-1
Principal Distribution Amount and the Class M-2 Principal Distribution
Amount; and
|
| · |
the
excess, if any, of (A) the aggregate Certificate Principal Balance
of the
Class M-3 Certificates immediately prior to that Distribution Date
over
(B) the positive difference between (i) the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due
Period
(after reduction for Realized Losses incurred during the related
Prepayment Period) and (ii) the sum of (x) the aggregate Certificate
Principal Balance of the Senior Certificates, the Class M-1 Certificates
and the Class M-2 Certificates (after taking into account the payment
of
the Senior Principal Distribution Amount, the Class M-1 Principal
Distribution Amount and the Class M-2 Principal Distribution Amount
for
such Distribution Date) and (y) the product of (a) the aggregate
Stated
Principal Balance of the Mortgage Loans as of the last day of the
related
Due Period (after reduction for Realized Losses incurred during the
related Prepayment Period) and (b) the sum of 2.00% and the Required
Overcollateralization Percentage.
|
Class
M-4 Certificate:
Any
Certificate designated as a “Class M-4 Certificate” on the face thereof, in the
form of Exhibit
A-2
hereto,
representing the right to its Percentage Interest of distributions provided
for
the Class M-4 Certificates as set forth herein and evidencing a Regular Interest
in REMIC II.
Class
M-4 Pass-Through Rate:
Shall
mean (i) with respect to each Distribution Date which occurs on or prior to
the
Optional Termination Date, 6.700% per annum and (ii) with respect to each
Distribution Date which occurs thereafter, 7.300% per annum, in each case
subject to a cap equal to the Net WAC Rate Cap for such Distribution
Date.
Class
M-4 Principal Distribution Amount:
With
respect to any Distribution Date which occurs (i) prior to the Stepdown Date
or
on or after the Stepdown Date if a Trigger Event is in effect for that
Distribution Date, the Principal Distribution Amount for that Distribution
Date
remaining after distribution of the Senior Principal Distribution Amount, the
Class M-1 Principal Distribution Amount, the Class M-2 Principal Distribution
Amount and the Class M-3 Principal Distribution Amount or (ii) on or after
the
Stepdown Date if a Trigger Event is not in effect for that Distribution Date,
the lesser of:
| · |
the
Principal Distribution Amount for that Distribution Date remaining
after
distribution of the Senior Principal Distribution Amount, the Class
M-1
Principal Distribution Amount, the Class M-2 Principal Distribution
Amount
and the Class M-3 Principal Distribution Amount;
and
|
| · |
the
excess, if any, of (A) the aggregate Certificate Principal Balance
of the
Class M-4 Certificates immediately prior to that Distribution Date
over
(B) the positive difference between (i) the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due
Period
(after reduction for Realized Losses incurred during the related
Prepayment Period) and (ii) the sum of (x) the aggregate Certificate
Principal Balance of the Senior Certificates, the Class M-1 Certificates,
the Class M-2 Certificates and the Class M-3 Certificates (after
taking
into account the payment of the Senior Principal Distribution Amount,
the
Class M-1 Principal Distribution Amount, the Class M-2 Principal
Distribution Amount and the Class M-3 Principal Distribution Amount
for
such Distribution Date) and (y) the product of (a) the aggregate
Stated
Principal Balance of the Mortgage Loans as of the last day of the
related
Due Period (after reduction for Realized Losses incurred during the
related Prepayment Period) and (b) the Required Overcollateralization
Percentage.
|
Class
P Certificate:
Any
Certificate designated as a “Class P Certificate” on the face thereof, in the
form of Exhibit
A-3
hereto,
representing the right to its Percentage Interest of distributions provided
for
the Class P Certificates as set forth herein and evidencing a Regular Interest
in REMIC IV.
Class
P Interest:
An
uncertificated interest in the Trust Fund held by the Trustee on behalf of
the
Holders of the Class P Certificates, evidencing a Regular Interest in REMIC
II
for purposes of the REMIC Provisions.
Class
P Certificate Account:
The
Eligible Account established and maintained by the Securities Administrator
pursuant to Section 5.09.
Class
R Certificate:
Any
Certificate designated a “Class R Certificate” on the face thereof, in
substantially the form set forth in Exhibit
A-4
hereto,
evidencing the Class R-1 Interest and Class R-2 Interest.
Class
R-X Certificate:
The
Class R-X Certificate executed by the Trustee, and authenticated and delivered
by the Certificate Registrat, substantially in the form annexed hereto as
Exhibit A-6 and evidencing the ownership of the Class R-3 Interest, the Class
R-4 Interest and the Class R-5 Interest.
Class
R-1 Interest:
The
uncertificated residual interest in REMIC I.
Class
R-2 Interest:
The
uncertificated residual interest in REMIC II.
Class
R-3 Interest:
The
uncertificated residual interest in REMIC III.
Class
R-4 Interest:
The
uncertificated residual interest in REMIC IV.
Class
R-5 Interest:
The
uncertificated residual interest in REMIC V.
Class
X Certificate:
Any
Certificate designated as a “Class X Certificate” on the face thereof, in the
form of Exhibit
A-5
hereto,
representing the right to its Percentage Interest of distributions provided
for
the Class X Certificates herein and evidencing a Regular Interest in
REMIC III.
Class
X Distribution Amount:
With
respect to any Distribution Date, the sum of (i) the Excess Cap Payment, (ii)
the Interest Distribution Amount for the Class X Certificates for such
Distribution Date and (iii) any Overcollateralization Reduction Amount for
such
Distribution Date remaining after payments pursuant to items 1 though 6 of
clause Third
of
Section 5.04(a); provided, however that on and after the Distribution Date
on which the aggregate Certificate Principal Balance of the Certificates has
been reduced to zero, the Class X Distribution Amount shall include the
Overcollateralization Amount.
Class
X Pass-Through Rate:
On any
Distribution Date, a per annum rate equal to the percentage equivalent of a
fraction, the numerator of which is the sum of the amounts calculated pursuant
to clauses (A) through (L) below, and the denominator of which is the aggregate
of the Uncertificated Principal Balances of the REMIC I Regular Interests
(other than REMIC I Regular Interest LT-P). For purposes of calculating the
Pass-Through Rate for the Class X Certificates, the numerator is equal to the
sum of the following components:
(A)
the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular Interest LT-AA
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC I Regular Interest LT-AA;
(B)
the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular Interest LT-A1
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC I Regular Interest LT-A1;
(C)
the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular Interest LT-A2
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC I Regular Interest LT-A2;
(D)
the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular Interest LT-A3
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC I Regular Interest LT-A3;
(E)
the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular Interest LT-A4
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC I Regular Interest LT-A4;
(F)
the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular Interest LT-A5
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC I Regular Interest LT-A5;
(G)
the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular Interest LT-A6
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC I Regular Interest LT-A6;
(H)
the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular Interest LT-M1
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC I Regular Interest LT-M1;
(I)
the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular Interest LT-M2
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC I Regular Interest LT-M2;
(J)
the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular Interest LT-M3
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC I Regular Interest LT-M3;
(K) the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular Interest LT-M4
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC I Regular Interest LT-M4; and
(L) the
Uncertificated REMIC I Pass-Through Rate for REMIC I Regular Interest LT-ZZ
minus the Marker Rate, applied to an amount equal to the Uncertificated
Principal Balance of REMIC I Regular Interest LT-ZZ.
Class
X Interest:
An
uncertificated interest in the Trust Fund held by the Trustee on behalf of
the
Holders of the Class X Certificates, evidencing a Regular Interest in REMIC
II
for purposes of the REMIC Provisions.
Cleanup
Call:
As
defined in Section 10.01.
Closing
Date:
August
30, 2006.
Code:
The
Internal Revenue Code of 1986, including any successor or amendatory
provisions.
Commission:
Shall
mean the United States Securities and Exchange Commission.
Compensating
Interest:
With
respect to any Distribution Date, an amount to be deposited in the Distribution
Account by the Servicer pursuant to the Servicing Agreement or the Master
Servicer pursuant to this Agreement to offset a Prepayment Interest Shortfall
on
a Mortgage Loan; provided, however that the amount of Compensating Interest
required to be paid in respect of the Mortgage Loans shall not exceed the
Servicing Fee payable to the Servicer or, in the case of the Master Servicer,
shall not exceed the Master Servicing Compensation payable to the Master
Servicer with respect to the related Prepayment Period.
Controlling
Person:
Means,
with respect to any Person, any other Person who “controls” such Person within
the meaning of the Securities Act.
Corporate
Trust Office:
The
principal corporate trust office of the Trustee or the Securities Administrator,
as the case maybe, at which, at any particular time its corporate business
in
connection with this agreement shall be administered, which office at the date
of the execution of this instrument is located at (ii) in the case of the
Trustee, HSBC Bank USA, National Association, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Nomura Asset Acceptance Corp., 2006-WF1 or at such other
address as the Trustee may designate from time to time by notice to the
Certificateholders, the Depositor, the Master Servicer, the Securities
Administrator and the Servicer, and (ii) with respect to the office of the
Securities Administrator, which for purposes of Certificate transfers and
surrender is located at Xxxxx Fargo Bank, N.A., Xxxxx Xxxxxx xxx Xxxxxxxxx
Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Corporate Trust Services-Client
Manager (NAAC 2006-WF1), and for all other purposes is located at Xxxxx Xxxxx
Xxxx, X.X., X.X. Xxx 00, Xxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust
Services-Client Manager (NAAC 2006-WF1) (or for overnight deliveries, at 0000
Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust
Services-Client Manager (NAAC 2006-WF1)), or at such other address as the
Securities Administrator may designate from time to time by notice to the
Certificateholders, the Depositor, the Master Servicer, the Servicer and the
Trustee.
Corresponding
Certificate:
With
respect to:
|
(i)
|
REMIC
I Regular Xxxxxxxx XX-X0, the Class A-1 Certificates,
|
|
|
(ii)
|
REMIC
I Regular Xxxxxxxx XX-X0, the Class A-2 Certificates;
|
|
|
(iii)
|
REMIC
I Regular Xxxxxxxx XX-X0, the Class A-3 Certificates;
|
|
|
(iv)
|
REMIC
I Regular Xxxxxxxx XX-X0, the Class A-4 Certificates;
|
|
|
(v)
|
REMIC
I Regular Xxxxxxxx XX-X0, the Class A-5 Certificates;
|
|
|
(vi)
|
REMIC
I Regular Xxxxxxxx XX-X0, the Class A-6 Certificates;
|
|
|
(vii)
|
REMIC
I Regular Interest LT-M1, the Class M-1 Certificates;
|
|
|
(viii)
|
REMIC
I Regular Interest LT-M2, the Class M-2 Certificates;
|
|
|
(ix)
|
REMIC
I Regular Interest LT-M3, the Class M-3 Certificates;
|
|
|
(x)
|
REMIC
I Regular Interest LT-M4, the Class M-4 Certificates;
and
|
|
|
(xi)
|
REMIC
I Regular Interest LT-P, the Class P
Certificates.
|
Coverage
Percentage:
With
respect to each Covered Mortgage Loan, the percentage of coverage provided
by
the PMI Policy (as set forth in Schedule I, which will remain static throughout
the life of the transaction).
Covered
Mortgage Loan:
Each
Mortgage Loan covered by the PMI Policy, as identified on the schedule attached
hereto as Schedule 2.
Credit
Enhancement Percentage:
With
respect to any Distribution Date and any Class of Publicly Offered Certificates,
the percentage obtained by dividing (x) the sum of (i) the aggregate Certificate
Principal Balance of the Class or Classes of Publicly Offered Certificates
subordinate thereto and (ii) the Overcollateralization Amount by (y) the
aggregate Stated Principal Balance of the Mortgage Loans, calculated after
taking into account distributions of principal on the Mortgage Loans and
distribution of the Principal Distribution Amount to the holders of the Publicly
Offered Certificates then entitled to distributions of principal on such
Distribution Date.
Credit
Risk Management Agreement:
The
agreement between the Credit Risk Manager and the Servicer and/or Master
Servicer, dated as of August 30, 2006.
Credit
Risk Management Fee:
As to
each Mortgage Loan and any Distribution Date, an amount equal to 1/12th of
the
Credit Risk Management Fee Rate multiplied by the Stated Principal Balance
of
such Mortgage Loan as of the last day of the related Due Period. The Credit
Risk
Management Fee shall be payable to the Credit Risk Manager and/or the Sponsor
pursuant to Section 3.32(a)(vii) and 3.33(b).
Credit
Risk Management Fee Rate:
0.005%
per annum.
Credit
Risk Manager:
Portfolio Surveillance Analytics, LLC, and its successors and
assigns.
Custodial
Account:
The
account established and maintained by the Servicer with respect to receipts
on
the Mortgage Loans and related REO Properties in accordance with the terms
and
conditions of the Servicing Agreement.
Custodial
Agreement:
The
Custodial Agreement dated as of August 1, 2006 among the Custodian, the Servicer
and the Trustee.
Custodian:
Xxxxx
Fargo Bank, N.A., a national banking association, or any successor thereto
appointed pursuant to the Custodial Agreement.
Cut-off
Date:
August
1, 2006.
Cut-off
Date Principal Balance:
As to
any Mortgage Loan, the unpaid principal balance thereof as of the close of
business on the Cut-off Date after application of all Principal Prepayments
received prior to the Cut-off Date and scheduled payments of principal due
on or
before the Cut-off Date, whether or not received, but without giving effect
to
any installments of principal received in respect of Due Dates after the Cut-off
Date.
Debt
Service Reduction:
With
respect to any Mortgage Loan, a reduction by a court of competent jurisdiction
in a proceeding under the Bankruptcy Code in the Scheduled Payment for such
Mortgage Loan that became final and non-appealable, except such a reduction
resulting from a Deficient Valuation or any other reduction that results in
a
permanent forgiveness of principal.
Deficient
Valuation:
With
respect to any Mortgage Loan, a valuation by a court of competent jurisdiction
of the Mortgaged Property in an amount less than the then outstanding
indebtedness under such Mortgage Loan, or any reduction in the amount of
principal to be paid in connection with any Scheduled Payment that results
in a
permanent forgiveness of principal, which valuation or reduction results from
an
order of such court that is final and non-appealable in a proceeding under
the
Bankruptcy Code.
Definitive
Certificates:
As
defined in Section 6.06.
Deleted
Mortgage Loan:
A
Mortgage Loan replaced or to be replaced by a Replacement Mortgage
Loan.
Delinquent:
A
Mortgage Loan is “delinquent” if any payment due thereon is not made pursuant to
the terms of such Mortgage Loan by the close of business on the day such payment
is scheduled to be due. A Mortgage Loan is “30 days delinquent” if such payment
has not been received by the close of business on the corresponding day of
the
month immediately succeeding the month in which such payment was due, or, if
there is no such corresponding day (e.g., as when a 30-day month follows a
31-day month in which a payment was due on the 31st day of such month), then
on
the last day of such immediately succeeding month. Similarly for “60 days
delinquent,” “90 days delinquent” and so on.
Denomination:
With
respect to each Certificate, the amount set forth on the face thereof as the
“Initial Certificate Principal Balance of this Certificate”.
Depositor:
Nomura
Asset Acceptance Corporation, a Delaware corporation, or its successor in
interest.
Depository:
The
initial Depository shall be The Depository Trust Company (“DTC”), the nominee of
which is Cede & Co., or any other organization registered as a “clearing
agency” pursuant to Section 17A of the Exchange Act. The Depository shall
initially be the registered Holder of the Book-Entry Certificates. The
Depository shall at all times be a “clearing corporation” as defined in
Section 8-102(a)(5) of the Uniform Commercial Code of the State of New
York.
Depository
Agreement:
With
respect to the Class of Book-Entry Certificates, the agreement among the
Depositor, the Trustee and the initial Depository, dated as of the Closing
Date,
substantially in the form of Exhibit I.
Depository
Participant:
A
broker, dealer, bank or other financial institution or other Person for whom
from time to time a Depository effects book-entry transfers and pledges of
securities deposited with the Depository.
Determination
Date:
With
respect to any Distribution Date, the fifteenth (15th)
day of
the month of such Distribution Date or, if such day is not a Business Day,
the
immediately preceding Business Day.
Distribution
Account:
The
separate Eligible Account created and maintained by the Securities Administrator
pursuant to Section 3.31 for the benefit of the Certificateholders,
designated “Xxxxx Fargo Bank, N.A., in trust for registered holders of Nomura
Asset Acceptance Corp., Mortgage Pass-Through Certificates, Series 2006-WF1”.
Funds in the Distribution Account shall be held in trust for the
Certificateholders for the uses and purposes set forth in this
Agreement.
Distribution
Date:
The
twenty-fifth (25th)
day of
each calendar month after the initial issuance of the Certificates, or if such
twenty-fifth day is not a Business Day, the next succeeding Business Day,
commencing in September 2006.
Due
Date:
As to
any Mortgage Loan, the date in each month on which the related Scheduled Payment
is due, as set forth in the related Mortgage Note.
Due
Period:
With
respect to any Distribution Date, the period from the second day of the calendar
month preceding the calendar month in which such Distribution Date occurs
through the close of business on the first day of the calendar month in which
such Distribution Date occurs.
Eligible
Account:
Any of
(i) an account or accounts maintained with a federal or state chartered
depository institution or trust company, the long-term unsecured debt
obligations and short-term unsecured debt obligations of which are rated by
each
Rating Agency in one of its two highest long-term and its highest short-term
rating categories respectively, at the time any amounts are held on deposit
therein, or (ii) an account or accounts in a depository institution or trust
company in which such accounts are insured by the FDIC (to the limits
established by the FDIC) and the uninsured deposits in which accounts are
otherwise secured such that, as evidenced by an Opinion of Counsel delivered
to
the Trustee and to each Rating Agency, the Certificateholders have a claim
with
respect to the funds in such account or a perfected first priority security
interest against any collateral (which shall be limited to Permitted
Investments) securing such funds that is superior to claims of any other
depositors or creditors of the depository institution or trust company in which
such account is maintained, or (iii) a segregated, non-interest bearing trust
account or accounts maintained with the corporate trust department of a federal
or state chartered depository institution or trust company having capital and
surplus of not less than $50,000,000, acting in its fiduciary capacity or (iv)
any other account acceptable to the Rating Agencies as evidenced in writing
by
the Rating Agencies. Eligible Accounts may bear interest, and may include,
if
otherwise qualified under this definition, accounts maintained with the Trustee
or Securities Administrator.
ERISA:
The
Employee Retirement Income Security Act of 1974, as amended.
ERISA
Restricted Certificate:
Each of
the Class X, Class P and Class R Certificates.
Excess
Liquidation Proceeds:
To the
extent not required by law to be paid to the related Mortgagor, the excess,
if
any, of any Liquidation Proceeds with respect to a Mortgage Loan over the Stated
Principal Balance of such Mortgage Loan and accrued and unpaid interest at
the
related Mortgage Rate through the last day of the month in which the Mortgage
Loan has been liquidated.
Exchange
Act:
Securities and Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.
Exemption:
Prohibited Transaction Exemption 93-32, as amended from time to
time.
Expense
Fee Rate:
The sum
of the Credit Risk Management Fee Rate, the Servicing Fee Rate, the Master
Servicing Fee Rate and the PMI Insurer Fee Rate, if applicable. In attributable
to the Mortgage Loans.
Extra
Principal Distribution Amount:
With
respect to any Distribution Date, the lesser of (x) the Net Monthly Excess
Cashflow for such Distribution Date and (y) the Overcollateralization Increase
Amount for such Distribution Date.
Xxxxxx
Mae:
Xxxxxx
Xxx (formerly, Federal National Mortgage Association), or any successor
thereto.
FDIC:
The
Federal Deposit Insurance Corporation, or any successor thereto.
Final
Recovery Determination:
With
respect to any defaulted Mortgage Loan or any REO Property (other than a
Mortgage Loan or REO Property purchased by the Sponsor or the Master Servicer
pursuant to or as contemplated by Section 2.03(c) or Section 10.01), a
determination made by the Servicer pursuant to the Servicing Agreement that
all
Insurance Proceeds, Liquidation Proceeds and other payments or recoveries which
the Servicer, in its reasonable good faith judgment, expects to be finally
recoverable in respect thereof have been so recovered. The Servicer shall
maintain records of each Final Recovery Determination made thereby.
FIRREA:
The
Financial Institutions Reform, Recovery, and Enforcement Act of 1989, as
amended.
Fitch:
Fitch
Ratings.
Form
8-K Disclosure Information:
Has the
meaning set forth in Section 5.12(b) of this Agreement.
Xxxxxxx
Mac:
Federal
Home Loan Mortgage Corporation, or any successor thereto.
Indemnified
Persons:
The
Trustee, the Master Servicer, the Securities Administrator, the Custodian,
the
Trust Fund and their officers, directors, agents and employees and, with respect
to the Trustee, any separate co-trustee and its officers, directors, agents
and
employees.
Independent:
When
used with respect to any specified Person, any such Person who (a) is in fact
independent of the Depositor, the Master Servicer, the Securities Administrator,
the Servicer, the Sponsor, any originator and their respective Affiliates,
(b)
does not have any direct financial interest in or any material indirect
financial interest in the Depositor, the Master Servicer, the Securities
Administrator, the Servicer, the Sponsor, any originator or any Affiliate
thereof, and (c) is not connected with the Depositor, the Master Servicer,
the
Securities Administrator, the Servicer, the Sponsor, any originator or any
Affiliate thereof as an officer, employee, promoter, underwriter, trustee,
partner, director or Person performing similar functions; provided, however,
that a Person shall not fail to be Independent of the Depositor, the Master
Servicer, the Securities Administrator, the Servicer, the Sponsor, any
originator or any Affiliate thereof merely because such Person is the beneficial
owner of one percent (1%) or less of any class of securities issued by the
Depositor, the Master Servicer, the Securities Administrator, the Servicer,
the
Sponsor, any originator or any Affiliate thereof, as the case may be.
When
used
with respect to any accountants, a Person who is “independent” within the
meaning of Rule 2-01(B) of the Securities and Exchange Commission’s Regulation
S-X. Independent means, when used with respect to any other Person, a Person
who
(A) is in fact independent of another specified Person and any affiliate of
such
other Person, (B) does not have any material direct or indirect financial
interest in such other Person or any affiliate of such other Person, (C) is
not
connected with such other Person or any affiliate of such other Person as an
officer, employee, promoter, underwriter, Securities Administrator, partner,
director or Person performing similar functions and (D) is not a member of
the
immediate family of a Person defined in clause (B) or (C) above.
Initial
Certificate Principal Balance:
With
respect to any Certificate, the Certificate Principal Balance of such
Certificate or any predecessor Certificate on the Closing Date.
Insurance
Policy:
With
respect to any Mortgage Loan included in the Trust Fund, any insurance policy,
including all riders and endorsements thereto in effect with respect to such
Mortgage Loan, including any replacement policy or policies for any Insurance
Policies.
Insurance
Proceeds:
Proceeds paid in respect of the Mortgage Loans pursuant to any Insurance Policy
or any other insurance policy covering a Mortgage Loan, to the extent such
proceeds are payable to the mortgagee under the Mortgage, the Servicer or the
trustee under the deed of trust and are not applied to the restoration of the
related Mortgaged Property or released to the Mortgagor in accordance with
the
servicing standard set forth in the Servicing Agreement, other than any amount
included in such Insurance Proceeds in respect of Insured Expenses.
Insured
Expenses:
Expenses covered by any Insurance Policy with respect to the Mortgage
Loans.
Interest
Carry Forward Amount:
With
respect to any Class of Certificates (other than the Class X, Class P and Class
R Certificates) and any Distribution Date, the amount, if any, by which the
Interest Distribution Amount for that Class of Certificates for the immediately
preceding Distribution Date exceeded the actual amount distributed on such
Class
in respect of interest on the immediately preceding Distribution Date, together
with any Interest Carry Forward Amount with respect to such Class remaining
unpaid from the previous Distribution Date.
Interest
Determination Date:
Shall
mean the second LIBOR Business Day preceding the commencement of each Accrual
Period.
Interest
Distribution Amount:
With
respect to any Class of Certificates (other than the Class P Certificates and
Class R Certificates) and any Distribution Date, an amount equal to the interest
accrued during the related Accrual Period at the applicable Pass-Through Rate
on
the Certificate Principal Balance (or Certificate Notional Balance) of such
Certificate immediately prior to such Distribution Date less such Certificate’s
share of any Net Interest Shortfall and the interest portion of any Realized
Losses on the Mortgage Loans allocated to such Certificate pursuant to
Section 1.02. The Interest Distribution Amount with respect to each Class
of Certificates (other than the Class A-1 Certificates) is calculated on the
basis of a 360-day year consisting of twelve 30-day months. The Interest
Distribution Amount with respect to the Class A-1 Certificates is calculated
on
an actual/360 basis. No Interest Distribution Amount will be payable with
respect to any Class of Certificates after the Distribution Date on which the
outstanding Certificate Principal Balance (or Certificate Notional Balance)
of
such Certificate has been reduced to zero.
Interest
Remittance Amount:
With
respect to any Distribution Date, that portion of the Available Distribution
Amount for such Distribution Date generally equal to (i) the sum, without
duplication, of (a) all scheduled interest during the related Due Period with
respect to the Mortgage Loans less the Servicing Fee, the Master Servicing
Fee,
the Credit Risk Management Fee and the PMI Insurer Fee, if applicable, (b)
all
Advances relating to interest with respect to the Mortgage Loans made on or
prior to the related Remittance Date, (c) all Compensating Interest with respect
to the Mortgage Loans and required to be remitted by the Servicer pursuant
to
the Servicing Agreement or the Master Servicer pursuant to this Agreement with
respect to such Distribution Date, (d) Liquidation Proceeds and Subsequent
Recoveries with respect to the Mortgage Loans collected during the related
Prepayment Period (to the extent such Liquidation Proceeds and Subsequent
Recoveries relate to interest), (e) all amounts relating to interest with
respect to each Mortgage Loan repurchased by the Sponsor pursuant to Sections
2.02 and 2.03 and (f) all amounts in respect of interest paid by the Master
Servicer pursuant to Section 10.01 to the extent remitted by the Master
Servicer to the Distribution Account pursuant to this Agreement and minus (ii)
all amounts required to be reimbursed by the Trust pursuant to Section 3.32
or as otherwise set forth in this Agreement, the Servicing Agreement or the
Custodial Agreement.
Interest
Shortfall:
With
respect to any Distribution Date, the aggregate shortfall, if any, in
collections of interest (adjusted to the related Net Mortgage Rates) on Mortgage
Loans resulting from (a) Principal Prepayments in full received during the
related Prepayment Period, (b) partial Principal Prepayments received during
the
related Prepayment Period to the extent applied prior to the Due Date in the
month of the Distribution Date and (c) interest payments on certain of the
Mortgage Loans being limited pursuant to the provisions of the Relief
Act.
Last
Scheduled Distribution Date:
The
Distribution Date in June 2036.
Latest
Possible Maturity Date:
The
second Distribution Date following the final scheduled maturity date of the
Mortgage Loan in the Trust Fund having the latest scheduled maturity date as
of
the Cut-off Date. For purposes of the Treasury Regulations under Code
Section 860A through 860G, the latest possible maturity date of each
regular interest issued by REMIC I and REMIC II shall be the Latest Possible
Maturity Date.
LIBOR
Business Day:
Shall
mean any day other than a Saturday or a Sunday or a day on which banking
institutions in the State of New York or in the city of London, England are
required or authorized by law to be closed.
LIBOR
Determination Date:
The
second LIBOR Business Day before the first day of the related Accrual
Period.
Liquidated
Loan:
With
respect to any Distribution Date, a defaulted Mortgage Loan that has been
liquidated through deed-in-lieu of foreclosure, foreclosure sale, trustee’s sale
or other realization as provided by applicable law governing the real property
subject to the related Mortgage and any security agreements and as to which
the
Servicer has certified in the related Prepayment Period in writing to the
Securities Administrator that it has made a Final Recovery
Determination.
Liquidation
Principal:
The
principal portion of Liquidation Proceeds received on a Mortgage Loan that
became a Liquidated Mortgage Loan, but not in excess of the Stated Principal
Balance of that Mortgage Loan, during the calendar month preceding the month
of
the Distribution Date.
Liquidation
Proceeds:
Amounts, other than Insurance Proceeds, received in connection with the partial
or complete liquidation of a Mortgage Loan, whether through trustee’s sale,
foreclosure sale or otherwise, or in connection with any condemnation or partial
release of a Mortgaged Property and any other proceeds received with respect
to
an REO Property, less the sum of related unreimbursed Advances, Servicing Fees
and Servicing Advances and all expenses of liquidation, including property
protection expenses and foreclosure and sale costs, including court and
reasonable attorneys fees.
Loan-to-Value
Ratio:
The
fraction, expressed as a percentage, the numerator of which is the original
principal balance of the Mortgage Loan and the denominator of which is the
Appraised Value of the related Mortgaged Property.
Majority
Class X Certificateholder:
The
Holder of a 50.01% or greater Percentage Interest in the Class X
Certificates.
Marker
Rate:
With
respect to the Class X Interest and any Distribution Date, a per annum rate
equal to two (2) times the weighted average of the Uncertificated REMIC I
Pass-Through Rates for REMIC I Regular Xxxxxxxx XX-X0, REMIC I Regular Xxxxxxxx
XX-X0, REMIC I Regular Xxxxxxxx XX-X0, REMIC I Regular Xxxxxxxx XX-X0, REMIC
I
Regular Xxxxxxxx XX-X0, REMIC I Regular Xxxxxxxx XX-X0, REMIC I Regular Xxxxxxxx
XX-X0, REMIC I Regular Interest LT-M1, REMIC I Regular Interest LT-M2, REMIC
I
Regular Interest LT-M3 and REMIC I Regular Interest LT-ZZ, with the rate on
each
such REMIC I Regular Interest subject to a cap equal to the Pass-Through Rate
for the Corresponding Certificate for the purpose of this calculation; and
with
the rate on REMIC I Regular Interest LT-ZZ subject to a cap of 0.00% per annum
for the purpose of this calculation; provided, however, that for this purpose,
the calculation of the Uncertificated REMIC I Pass-Through Rate and the related
cap with respect to REMIC I Regular Xxxxxxxx XX-X0 shall be multiplied by a
fraction, the numerator of which is the actual number of days in the Accrual
Period and the denominator of which is 30.
Master
Servicer:
As of
the Closing Date, Xxxxx Fargo Bank, N.A. and thereafter, its respective
successors in interest who meet the qualifications of this Agreement. The Master
Servicer and the Securities Administrator shall at all times be the same Person
or Affiliates.
Master
Servicer Default:
One or
more of the events described in Section 8.01(b).
Master
Servicing Fee:
With
respect to each Mortgage Loan and for any calendar month, an amount equal to
one
twelfth of the product of the Master Servicing Fee Rate multiplied by the Stated
Principal Balance of the Mortgage Loans as of the Due Date in the preceding
calendar month.
Master
Servicing Fee Rate:
0.0050%
per annum.
Master
Servicing Compensation:
The
Master Servicing Fee plus all income and gain realized from any investment
of
funds in the Distribution Account.
MERS:
Mortgage Electronic Registration Systems, Inc., a corporation organized and
existing under the laws of the State of Delaware, or any successor
thereto.
MERS®
System:
The
system of recording transfers of Mortgages electronically maintained by
MERS.
Mezzanine
Certificates:
The
Class M-1, Class M-2, Class M-3 and Class M-4.
MIN:
The
Mortgage Identification Number for Mortgage Loans registered with MERS on the
MERS® System.
MOM
Loan:
Any
Mortgage Loan as to which MERS is acting as the mortgagee of such Mortgage
Loan,
solely as nominee for the originator of such Mortgage Loan and its successors
and assigns, at the origination thereof.
Monthly
Statement:
The
statement delivered to the Certificateholders pursuant to
Section 5.07.
Moody’s:
Xxxxx’x
Investors Service, Inc. or its successor in interest.
Mortgage:
The
mortgage, deed of trust or other instrument creating a first lien on or first
priority ownership interest in an estate in fee simple in real property securing
a Mortgage Note.
Mortgage
File:
The
Mortgage Loan Documents pertaining to a particular Mortgage Loan and any
additional documents delivered to the Trustee or the Custodian on behalf of
the
Trustee to be added to the Mortgage File pursuant to this
Agreement.
Mortgage
Loan Documents:
As
defined in Section 2.01.
Mortgage
Loans:
Such of
the Mortgage Loans transferred and assigned to the Trustee pursuant to the
provisions hereof, as from time to time are held as a part of the Trust Fund
(including any REO Property), the mortgage loans so held being identified in
the
Mortgage Loan Schedule, notwithstanding foreclosure or other acquisition of
title of the related Mortgaged Property.
Mortgage
Loan Purchase Agreement:
The
Mortgage Loan Purchase Agreement dated as of August 30, 2006, between the
Sponsor, as seller and the Depositor, as purchaser, a form of which is attached
hereto as Exhibit
C.
Mortgage
Loan Purchase Price:
The
price, calculated as set forth in Section 10.01, to be paid in connection
with the purchase of the Mortgage Loans pursuant to
Section 10.01.
Mortgage
Loan Schedule:
The
list of Mortgage Loans (as from time to time amended by the Servicer to reflect
the deletion of Deleted Mortgage Loans and the addition of Replacement Mortgage
Loans pursuant to the provisions of this Agreement) transferred to the Trustee
as part of the Trust Fund and from time to time subject to this Agreement,
the
initial Mortgage Loan Schedule being attached hereto as Exhibit
B,
setting
forth the following information with respect to each Mortgage Loan:
(i) the
Mortgage Loan identifying number;
(ii) the
Mortgage Rate in effect as of the Cut-off Date;
(iii) the
Servicing Fee Rate;
(iv) the
Net
Mortgage Rate in effect as of the Cut-off Date;
(v) the
maturity date;
(vi) the
original principal balance;
(vii) the
Cut-off Date Principal Balance;
(viii) the
original term;
(ix) the
remaining term;
(x) the
property type;
(xi) the
product type (e.g., 2/28, 15 year fixed, 30 year fixed, 15/30 balloon,
etc.);
(xii) with
respect to each MOM Loan, the related MIN;
(xiii) the
Custodian;
(xiv) a
code
indicating whether the Mortgage Loan is subject to a Prepayment Charge, the
term
of such Prepayment Charge and the amount of such Prepayment Charge;
(xv) the
Servicer; and
(xvi) whether
the Mortgage Loan is a Covered Mortgage Loan; and
(xvii) the
PMI
Insurer Fee Rate, if applicable.
Such
schedule shall also set forth the aggregate Cut-off Date Principal Balance
for
all of the Mortgage Loans.
Mortgage
Note:
The
original executed note or other evidence of indebtedness of a Mortgagor under
a
Mortgage Loan.
Mortgage
Rate:
With
respect to each Mortgage Loan, the annual rate at which interest accrues on
such
Mortgage Loan from time to time in accordance with the provisions of the related
Mortgage Note. With respect to each Mortgage Loan that becomes an REO Property,
as of any date of determination, the annual rate determined in accordance with
the immediately preceding sentence as of the date such Mortgage Loan became
an
REO Property.
Mortgaged
Property:
The
underlying property securing a Mortgage Loan.
Mortgagor:
The
obligor on a Mortgage Note.
Net
Interest Shortfalls:
With
respect to any Distribution, Interest Shortfalls net of payments by the Servicer
or the Master Servicer in respect of Compensating Interest.
Net
Monthly Excess Cashflow:
With
respect to any Distribution Date, the sum of (a) any Overcollateralization
Reduction Amount and (b) the excess of (x) the Available Distribution Amount
for
such Distribution Date over (y) the sum for such Distribution Date of (A) the
aggregate amount of Senior Interest Distribution Amounts payable to the Senior
Certificates and the Interest Distribution Amounts payable to the Mezzanine
Certificates and (B) the Principal Funds.
Net
Mortgage Rate:
As to
each Mortgage Loan, and at any time, the per annum rate equal to the related
Mortgage Rate less the sum of (i) the Servicing Fee Rate, (ii) the Credit Risk
Management Fee Rate, (iii) the Master Servicing Fee Rate and (iv) the PMI
Insurer Fee Rate.
Net
WAC Rate Cap:
With
respect to the Senior Certificates and the Mezzanine Certificates, the weighted
average of the Net Mortgage Rates of the Mortgage Loans, weighted based on
their
Stated Principal Balances as of the first day of the calendar month preceding
the month in which the Distribution Date occurs; provided that the Net WAC
Rate
Cap with respect to the Class A-1 Certificates shall be multiplied by a
fraction, the numerator of which is 30 and the denominator of which is the
actual number of days in the Accrual Period.
For
federal income tax purposes, the Net WAC Rate Cap, with respect to any
Distribution Date, shall be expressed as the weighted average of the
Uncertificated REMIC I Pass-Through Rates on each REMIC I Regular
Interest (other than REMIC I Regular Interest LT-P) weighted on the basis of
the
Uncertificated Principal Balance of such REMIC I Regular
Interests.
Net
WAC Rate Carryover Amount:
With
respect to each class of Senior Certificates and the Mezzanine Certificates
and
any Distribution Date on which the related Pass-Through Rate is reduced by
the
Net WAC Rate Cap, an amount equal to the sum of (i) the excess of (x) the amount
of interest such Class would have been entitled to receive on such Distribution
Date if the Pass-Through Rate applicable to such Class would not have been
reduced by the Net WAC Rate Cap on such Distribution Date over (y) the amount
of
interest paid on such Distribution Date to such Class plus (ii) the related
Net
WAC Rate Carryover Amount for the previous Distribution Date not previously
distributed to such Class.
Net
WAC Reserve Fund:
Shall
mean the segregated non-interest bearing trust account created and maintained
by
the Securities Administrator pursuant to Section 5.11 hereof.
Non-Book-Entry
Certificate:
Any
Certificate other than a Book-Entry Certificate.
Nonrecoverable
Advance:
With
respect to any Mortgage Loan, any portion of an Advance or Servicing Advance
previously made or proposed to be made by the Servicer pursuant to the Servicing
Agreement or the Trustee (or such other Successor Servicer appointed by the
Trustee), that, in the good faith judgment of the Servicer or the such Successor
Servicer, will not or, in the case of a proposed Advance or Servicing Advance,
would not, be ultimately recoverable by it from the related Mortgagor, related
Liquidation Proceeds, Insurance Proceeds or otherwise.
Officer’s
Certificate:
A
certificate (i) signed by the Chairman of the Board, the Vice Chairman of the
Board, the President, a Vice President (however denominated), an Assistant
Vice
President, the Treasurer, the Secretary, or one of the assistant treasurers
or
assistant secretaries of the Depositor or the Trustee (or any other officer
customarily performing functions similar to those performed by any of the above
designated officers and also to whom, with respect to a particular matter,
such
matter is referred because of such officer’s knowledge of and familiarity with a
particular subject) or (ii), if provided for in the Servicing Agreement, signed
by an Authorized Servicer Representative, as the case may be, and delivered
to
the Depositor, the Sponsor, the Master Servicer, the Securities Administrator
and/or the Trustee, as the case may be, as required by the Servicing
Agreement.
One-Month
LIBOR:
With
respect to any Accrual Period (other than the first Accrual Period), the rate
determined by the Securities Administrator on the related Interest Determination
Date on the basis of the rate for U.S. dollar deposits for one month that
appears on Telerate Screen Page 3750 as of 11:00 a.m. (London time) on such
Interest Determination Date. If such rate does not appear on such page (or
such
other page as may replace that page on that service, or if such service is
no
longer offered, such other service for displaying One-Month LIBOR or comparable
rates as may be reasonably selected by the Securities Administrator), One-Month
LIBOR for the applicable Accrual Period will be the Reference Bank Rate. If
no
such quotations can be obtained by the Securities Administrator and no Reference
Bank Rate is available, One-Month LIBOR will be One-Month LIBOR applicable
to
the preceding Accrual Period. The establishment of One-Month LIBOR on each
Interest Determination Date by the Securities Administrator and the Securities
Administrator’s calculation of the rate of interest applicable to the Class A-1
Certificates for the related Accrual Period shall, in the absence of manifest
error, be final and binding. With respect to the first Accrual period, One-Month
LIBOR shall equal 5.350% per annum.
Opinion
of Counsel:
A
written opinion of counsel, who may be counsel for the Sponsor, the Master
Servicer, the Depositor or the Servicer, reasonably acceptable to each addressee
of such opinion; provided that with respect to Section 2.05, 7.05 or 11.01,
or the interpretation or application of the REMIC Provisions, such counsel
must
(i) in fact be independent of the Sponsor, the Master Servicer Depositor and
the
Servicer, (ii) not have any direct financial interest in the Sponsor, the
Depositor, the Master Servicer or the Servicer or in any affiliate of any of
them, and (iii) not be connected with the Sponsor, the Depositor, the Master
Servicer or the Servicer as an officer, employee, promoter, underwriter,
trustee, partner, director or person performing similar functions.
Optional
Termination:
The
termination of the Trust Fund created hereunder as a result of the purchase
of
all of the Mortgage Loans and any REO Property, as described in
Section 10.01.
Optional
Termination Date:
The
first Distribution Date on which the Master Servicer may purchase, at its
option, the Mortgage Loans and REO Properties, as described in
Section 10.01.
OTS:
The
Office of Thrift Supervision or any successor thereto.
OTS
Method:
The
method used by OTS to calculate delinquencies.
Outstanding:
With
respect to the Certificates as of any date of determination, all Certificates
theretofore executed and authenticated under this Agreement except:
(a) Certificates
theretofore canceled by the Securities Administrator or delivered to the
Securities Administrator for cancellation; and
(b) Certificates
in exchange for which or in lieu of which other Certificates have been executed
and delivered by the Securities Administrator pursuant to this
Agreement.
Outstanding
Mortgage Loan:
As of
any date of determination, a Mortgage Loan with a Stated Principal Balance
greater than zero that was not the subject of a Principal Prepayment in full,
and that did not become a Liquidated Loan, prior to the end of the related
Prepayment Period.
Overcollateralization
Amount:
With
respect to any Distribution Date, the excess, if any, of (a) the aggregate
Stated Principal Balance of the Mortgage Loans as of the last day of the related
Due Period over (b) the aggregate Certificate Principal Balance of the Senior
Certificates and the Mezzanine Certificates on such Distribution Date (after
taking into account the payment of 100% of the Principal Funds on such
Distribution Date).
Overcollateralization
Increase Amount:
With
respect to any Distribution Date, the excess, if any, of (a) the Required
Overcollateralization Amount over (b) the Overcollateralization Amount on such
Distribution Date.
Overcollateralization
Reduction Amount:
With
respect to any Distribution Date, the lesser of (x) the Principal Funds for
such
Distribution Date and (y) the excess, if any, of (i) the Overcollateralization
Amount for such Distribution Date over (ii) the Required Overcollateralization
Amount for such Distribution Date.
Ownership
Interest:
As to
any Certificate, any ownership interest in such Certificate including any
interest in such Certificate as the Holder thereof and any other interest
therein, whether direct or indirect, legal or beneficial.
Pass-Through
Rate:
With
respect to each Class of Certificates, the applicable Pass-Through Rate for
each
such Class as set forth in the Preliminary Statement, except with respect to
the
Class X Certificates, 100% of the interest distributable to the Class X
Interest, expressed as a per annum rate.
Payahead:
Any
Scheduled Payment intended by the related Mortgagor to be applied in a Due
Period subsequent to the Due Period in which such payment was
received.
PCAOB:
Shall
mean the Public Company Accounting Oversight Board.
Percentage
Interest:
With
respect to any Certificate of a specified Class, the Percentage Interest set
forth on the face thereof or the percentage obtained by dividing the
Denomination of such Certificate by the aggregate of the Denominations of all
Certificates of such Class.
Permitted
Investments:
At any
time, any one or more of the following obligations and securities:
(i) direct
obligations of, or obligations fully guaranteed as to timely payment of
principal and interest by, the United States or any agency thereof, provided
such obligations are unconditionally backed by the full faith and credit of
the
United States;
(ii) general
obligations of or obligations guaranteed by any state of the United States
or
the District of Columbia receiving the highest long-term debt rating of each
Rating Agency, or such lower rating as will not result in the downgrading or
withdrawal of the ratings then assigned to the Certificates by each Rating
Agency, as evidenced by a signed writing delivered by each Rating
Agency;
(iii) commercial
or finance company paper which is then receiving the highest commercial or
finance company paper rating of each Rating Agency that rates such securities,
or such lower rating as will not result in the downgrading or withdrawal of
the
ratings then assigned to the Certificates by each Rating Agency, as evidenced
by
a signed writing delivered by each Rating Agency;
(iv) certificates
of deposit, demand or time deposits, or bankers’ acceptances issued by any
depository institution or trust company incorporated under the laws of the
United States or of any state thereof and subject to supervision and examination
by federal and/or state banking authorities (including the Trustee or the Master
Servicer in its commercial banking capacity), provided that the commercial
paper
and/or long term unsecured debt obligations of such depository institution
or
trust company are then rated one of the two highest long-term and the highest
short-term ratings of each such Rating Agency for such securities, or such
lower
ratings as will not result in the downgrading or withdrawal of the rating then
assigned to the Certificates by any Rating Agency, as evidenced by a signed
writing delivered by each Rating Agency;
(v) demand
or
time deposits or certificates of deposit issued by any bank or trust company
or
savings institution to the extent that such deposits are fully insured by the
FDIC;
(vi) guaranteed
reinvestment agreements issued by any bank, insurance company or other
corporation containing, at the time of the issuance of such agreements, such
terms and conditions as will not result in the downgrading or withdrawal of
the
rating then assigned to the Certificates by any such Rating Agency, as evidenced
by a signed writing delivered by each Rating Agency;
(vii) repurchase
obligations with respect to any security described in clauses (i) and (ii)
above, in either case entered into with a depository institution or trust
company (acting as principal) described in clause (v) above;
(viii) securities
(other than stripped bonds, stripped coupons or instruments sold at a purchase
price in excess of 115% of the face amount thereof) bearing interest or sold
at
a discount issued by any corporation incorporated under the laws of the United
States or any state thereof which, at the time of such investment, have one
of
the two highest long term ratings of each Rating Agency, or such lower rating
as
will not result in the downgrading or withdrawal of the rating then assigned
to
the Certificates by any Rating Agency, as evidenced by a signed writing
delivered by each Rating Agency;
(ix) units
of
money market funds registered under the Investment Company Act of 1940 including
funds managed or advised by the Trustee, the Master Servicer or an affiliate
of
either, having a rating by S&P of AAAm-G or AAAm, if rated by Moody’s, rated
Aaa, Aa1 or Aa2, and if rated by Fitch, F1, F2 or F3;
(x) short
term investment funds sponsored by any trust company or banking association
incorporated under the laws of the United States or any state thereof (including
any such fund managed or advised by the Trustee, the Master Servicer or any
affiliate thereof) which on the date of acquisition has been rated by each
Rating Agency in their respective highest applicable rating category or such
lower rating as will not result in the downgrading or withdrawal of the ratings
then assigned to the Certificates by each Rating Agency, as evidenced by a
signed writing delivered by each Rating Agency; and
(xi) such
other investments having a specified stated maturity and bearing interest or
sold at a discount acceptable to each Rating Agency as will not result in the
downgrading or withdrawal of the rating then assigned to the Certificates by
any
Rating Agency, as evidenced by a signed writing delivered by each Rating Agency,
as evidenced by a signed writing delivered by each Rating Agency;
provided,
however, that no instrument described hereunder shall evidence either the right
to receive (a) only interest with respect to the obligations underlying such
instrument or (b) both principal and interest payments derived from obligations
underlying such instrument and the interest and principal payments with respect
to such instrument provide a yield to maturity at par greater than 120% of
the
yield to maturity at par of the underlying obligations.
Permitted
Transferee:
Any
person other than (i) the United States, any State or political subdivision
thereof, any possession of the United States or any agency or instrumentality
of
any of the foregoing, (ii) a foreign government, International Organization
or
any agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers’ cooperatives described in Section 521 of the Code)
that is exempt from tax imposed by Chapter 1 of the Code (including the tax
imposed by Section 511 of the Code on unrelated business taxable income) on
any excess inclusions (as defined in Section 860E(c)(1) of the Code) with
respect to any Residual Certificate, (iv) rural electric and telephone
cooperatives described in Section 1381(a)(2)(C) of the Code, (v) a Person
that is not a citizen or resident of the United States, a corporation,
partnership (other than a partnership that has any direct or indirect foreign
partners) or other entity (treated as a corporation or a partnership for federal
income tax purposes), created or organized in or under the laws of the United
States, any state thereof or the District of Columbia, an estate whose income
from sources without the United States is includible in gross income for United
States federal income tax purposes regardless of its connection with the conduct
of a trade or business within the United States, or a trust if a court within
the United States is able to exercise primary supervision over the
administration of the trust and one or more United States persons have authority
to control all substantial decisions of the trustor and (vi) any other Person
based upon an Opinion of Counsel (which shall not be an expense of the Trustee)
that states that the Transfer of an Ownership Interest in a Residual Certificate
to such Person may cause any REMIC to fail to qualify as a REMIC at any time
that any Certificates are Outstanding. The terms “United States,” “State” and
“International Organization” shall have the meanings set forth in
Section 7701 of the Code or successor provisions. A corporation will not be
treated as an instrumentality of the United States or of any State or political
subdivision thereof for these purposes if all of its activities are subject
to
tax and, with the exception of Xxxxxxx Mac, a majority of its board of directors
is not selected by such government unit.
Person:
Any
individual, corporation, partnership, joint venture, association,
joint-stock
company, limited liability company, trust, unincorporated organization or
government, or any agency or political subdivision thereof.
PMI
Insurer:
PMI
Mortgage
Insurance
Company,
an
Arizona corporation, or its successor in interest.
PMI
Insurer Fee:
The
premium payable to the PMI Insurer on each Distribution Date pursuant to Section
3.32, which amount shall equal one twelfth of the product of (i) the PMI Insurer
Fee Rate (without regard to the words “per annum”), multiplied by (ii) the
aggregate Stated Principal Balance of each Covered Mortgage Loan as of the
first
day of the related Due Period (after giving effect to scheduled payments of
principal due during the Due Period relating to the previous Distribution Date,
to the extent received or advanced) plus any applicable premium taxes on each
Covered Mortgage Loan located in West Virginia and Kentucky.
PMI
Insurer Fee Rate:
With
respect to any Distribution Date and any Mortgage Loan covered by the PMI
Policy, a rate ranging between 0.204% per annum and 2.461% per
annum.
PMI
Policy:
The
primary mortgage insurance policy (policy reference number: # 22699-4) with
respect to the related PMI Mortgage Loans, including all endorsements thereto
dated the Closing Date, issued by the PMI Insurer.
PMI
Threshold Percentage:
For
purposes of Regulation AB, with respect to each Distribution Date, a percentage
equivalent of a fraction, the numerator of which is (x) the sum of the product
of (i) the Stated Principal Balance of the Covered Mortgage Loans and (ii)
the
related Coverage Percentage for each Covered Mortgae Loan and the denominator
of
which is (y) the aggregate Stated Principal Balance of the Mortgage Loans,
in
each case, as of the last day of the related Due Period.
Prepayment
Assumption:
The
assumed rate of prepayment, as described in the Prospectus Supplement relating
to each Class of Publicly Offered Certificates.
Prepayment
Charge:
With
respect to any Principal Prepayment, any prepayment premium, penalty or charge
payable by a Mortgagor in connection with any Principal Prepayment on a Mortgage
Loan pursuant to the terms of the related Mortgage Note (other than any Servicer
Prepayment Charge Payment Amount) as shown on the Prepayment Charge
Schedule.
Prepayment
Interest Shortfall:
With
respect to any Distribution Date, for each Mortgage Loan that was the subject
of
a Principal Prepayment in full during the related Prepayment Period, (other
than
a Principal Prepayment in full resulting from the purchase of a Mortgage Loan
pursuant to Section 2.02, 2.03, 3.24 or 10.01 hereof), the amount, if any,
by which (i) one month’s interest at the applicable Net Mortgage Rate on the
Stated Principal Balance of such Mortgage Loan immediately prior to such
prepayment exceeds (ii) the amount of interest paid or collected in connection
with such Principal Prepayment less the sum of (a) the Servicing Fee, (b) the
Credit Risk Management Fee, (c) the Master Servicing Fee Rate and (d) the PMI
Insurer Fee Rate, if any.
Prepayment
Period:
With
respect to any Distribution Date, the calendar month immediately preceding
the
calendar month in which such Distribution Date occurs.
Principal
Distribution Amount:
With
respect to each Distribution Date, the sum of (i) Principal Funds for such
Distribution Date, plus (ii) the Extra Principal Distribution Amount for such
Distribution Date minus
(iii)
the amount of any Overcollateralization Reduction Amount for such Distribution
Date. In no event will the Principal Distribution Amount with respect to any
Distribution Date be (x) less than zero or (y) greater than the then outstanding
aggregate Certificate Principal Balance of the Publicly Offered
Certificates.
Principal
Funds:
With
respect to any Distribution Date, (i) the sum, without duplication, of (a)
all
scheduled principal collected during the related Due Period, (b) all Advances
relating to principal made on or prior to the Remittance Date or, with respect
to the Trustee (in its capacity as Successor Servicer) on the Distribution
Date,
(c) Principal Prepayments exclusive of prepayment charges or penalties collected
during the related Prepayment Period, (iii) the Stated Principal Balance of
each
Mortgage Loan that was repurchased by the Sponsor pursuant to
Sections 2.02, 2.03 and 3.24, (d) the aggregate of all Substitution
Adjustment Amounts for the related Determination Date in connection with the
substitution of Mortgage Loans pursuant to Section 2.03(b), (e) amounts in
respect of principal paid by the Master Servicer pursuant to Section 10.01,
(f) all Liquidation Proceeds and Subsequent Recoveries collected during the
related Prepayment Period (to the extent such Liquidation Proceeds and
Subsequent Recoveries relate to principal), in each case to the extent remitted
by the Servicer to the Distribution Account pursuant to the Servicing Agreement
and (g) all Subsequent Recoveries minus (ii) all amounts required to be
reimbursed by the Trust Fund pursuant to Section 3.32 or as otherwise set
forth in this Agreement or the Custodial Agreement to the extent not reimbursed
from the Interest Remittance Amount.
Private
Certificate:
Each of
the Class X, Class P and Class R Certificates.
Prospectus
Supplement:
The
Prospectus Supplement dated August 29, 2006 relating to the offering of the
Publicly Offered Certificates.
Publicly
Offered Certificates:
The
Class A-1, Class A-2, Class A-3, Class A-4, Class X-0, Xxxxx X-0, Class M-1,
Class M-2, Class M-3 and Class M-4 Certificates.
PUD:
A
planned unit development.
Purchase
Price:
With
respect to any Mortgage Loan required to be repurchased by the Sponsor pursuant
to Section 2.02, 2.03 or 3.24 hereof and as confirmed by an Officer’s
Certificate from the Sponsor to the Trustee, an amount equal to the sum of
(i)
100% of the outstanding principal balance of the Mortgage Loan as of the date
of
such purchase plus, (ii) thirty (30) days’ accrued interest thereon at the
applicable Net Mortgage Rate, plus any portion of the Servicing Fee, Master
Servicing Fee, Servicing Advances and Advances payable to the Servicer or Master
Servicer, as applicable, with respect to such Mortgage Loan plus (iii) any
costs
and damages of the Trust Fund in connection with any violation by such Mortgage
Loan of any abusive or predatory lending law, including any expenses incurred
by
the Trustee with respect to such Mortgage Loan prior to the purchase
thereof.
Rating
Agency:
Each of
Xxxxx’x and S&P. If any such organization or its successor is no longer in
existence, “Rating Agency” shall be a nationally recognized statistical rating
organization, or other comparable Person, designated by the Depositor, notice
of
which designation shall be given to the Trustee. References herein to a given
rating category of a Rating Agency shall mean such rating category without
giving effect to any modifiers.
Realized
Loss:
With
respect to each Mortgage Loan as to which a Final Recovery Determination has
been made, an amount (not less than zero) equal to (i) the Stated Principal
Balance of such Mortgage Loan as of the commencement of the calendar month
in
which the Final Recovery Determination was made, plus (ii) accrued interest
from
the Due Date as to which interest was last paid by the Mortgagor through the
end
of the calendar month in which such Final Recovery Determination was made,
calculated in the case of each calendar month during such period (A) at an
annual rate equal to the annual rate at which interest was then accruing on
such
Mortgage Loan and (B) on a principal amount equal to the Stated Principal
Balance of such Mortgage Loan as of the close of business on the Distribution
Date during such calendar month, minus (iii) the proceeds, if any, received
in
respect of such Mortgage Loan during the calendar month in which such Final
Recovery Determination was made, net of amounts that are payable therefrom
to
the Servicer pursuant to this Agreement. To the extent the Servicer receives
Subsequent Recoveries with respect to any Mortgage Loan, the amount of the
Realized Loss with respect to that Mortgage Loan will be reduced to the extent
that Subsequent Recoveries are applied to reduce the Certificate Principal
Balance of any Class of Certificates on any Distribution Date.
With
respect to any REO Property as to which a Final Recovery Determination has
been
made, an amount (not less than zero) equal to (i) the Stated Principal Balance
of the related Mortgage Loan as of the date of acquisition of such REO Property
on behalf of REMIC I, plus (ii) accrued interest from the Due Date as to which
interest was last paid by the Mortgagor in respect of the related Mortgage
Loan
through the end of the calendar month immediately preceding the calendar month
in which such REO Property was acquired, calculated in the case of each calendar
month during such period (A) at an annual rate equal to the annual rate at
which
interest was then accruing on the related Mortgage Loan and (B) on a principal
amount equal to the Stated Principal Balance of the related Mortgage Loan as
of
the close of business on the Distribution Date during such calendar month,
minus
(iii) the aggregate of all unreimbursed Advances and Servicing
Advances.
With
respect to each Mortgage Loan which has become the subject of a Deficient
Valuation, the difference between the principal balance of the Mortgage Loan
outstanding immediately prior to such Deficient Valuation and the principal
balance of the Mortgage Loan as reduced by the Deficient Valuation.
With
respect to each Mortgage Loan which has become the subject of a Debt Service
Reduction, the portion, if any, of the reduction in each affected Monthly
Payment attributable to a reduction in the Mortgage Rate imposed by a court
of
competent jurisdiction. Each such Realized Loss shall be deemed to have been
incurred on the Due Date for each affected Monthly Payment.
In
addition, to the extent the Servicer receives Subsequent Recoveries with respect
to any Mortgage Loan, the amount of the Realized Loss with respect to that
Mortgage Loan will be reduced to the extent such Subsequent Recoveries are
applied to reduce the Certificate Principal Balance of any Class of Certificates
on any Distribution Date.
Record
Date:
With
respect to the Certificates and any Distribution Date, the close of business
on
the last Business Day of the month preceding the month in which such
Distribution Date occurs.
Reference
Bank Rate:
With
respect to any Accrual Period shall mean the arithmetic mean, rounded upwards,
if necessary, to the nearest whole multiple of 0.03125%, of the offered rates
for United States dollar deposits for one month that are quoted by the Reference
Banks as of 11:00 a.m., New York City time, on the related Interest
Determination Date to prime banks in the London interbank market for a period
of
one month in an amount approximately equal to the Certificate Principal Balance
of the Class A-1 Certificates for such Accrual Period, provided that at least
two such Reference Banks provide such rate. If fewer than two offered rates
appear, the Reference Bank Rate will be the arithmetic mean, rounded upwards,
if
necessary, to the nearest whole multiple of 0.03125%, of the rates quoted by
one
or more major banks in New York City, selected by the Securities Administrator,
as of 11:00 a.m., New York City time, on such date for loans in United States
dollars to leading European banks for a period of one month in amounts
approximately equal to the Certificate Principal Balance of the Class A-1
Certificates for such Accrual Period.
Reference
Banks:
Shall
mean leading banks selected by the Securities Administrator and engaged in
transactions in Eurodollar deposits in the international Eurocurrency market
(i)
with an established place of business in London, (ii) which have been designated
as such by the Securities Administrator and (iii) which are not controlling,
controlled by, or under common control with, the Depositor, the Sponsor or
the
Servicer.
Regulation
AB:
Means
Subpart 229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time
to
time.
Relevant
Servicing Criteria:
Means
with respect to any Servicing Function Participant, the Servicing Criteria
applicable to such party, as set forth on Exhibit
L
attached
hereto. For clarification purposes, multiple parties can have responsibility for
the same Relevant Servicing Criteria. With respect to a Servicing Function
Participant engaged by the Master Servicer, the Securities Administrator or
the
Servicer, the term “Relevant Servicing Criteria” may refer to a portion of the
Relevant Servicing Criteria applicable to such party.
Relief
Act:
The
Servicemembers Civil Relief Act of 2003, as amended from time to time or similar
state or local laws.
REMIC:
A “real
estate mortgage investment conduit” within the meaning of Section 860D of
the Code.
REMIC
I:
The
segregated pool of assets subject hereto, constituting the primary trust created
hereby and to be administered hereunder, with respect to which a REMIC election
is to be made, consisting of (i) the Mortgage Loans and all interest accruing
and principal due with respect thereto after the Cut-off Date to the extent
not
applied in computing the Cut-off Date Principal Balance thereof and all related
Prepayment Charges; (ii) the related Mortgage Files, (iii) the Custodial Account
(other than any amounts representing any Servicer Prepayment Charge Payment
Amount), the Distribution Account, the Class P Certificate Account and such
assets that are deposited therein from time to time, together with any and
all
income, proceeds and payments with respect thereto; (iv) property that secured
a
Mortgage Loan and has been acquired by foreclosure, deed in lieu of foreclosure
or otherwise; (v) the mortgagee’s rights under the Insurance Policies with
respect to the Mortgage Loans and the PMI Policy; (vi) the rights under the
Mortgage Loan Purchase Agreement, and (vii) all proceeds of the foregoing,
including proceeds of conversion, voluntary or involuntary, of any of the
foregoing into cash or other liquid property. Notwithstanding the foregoing,
however, REMIC I specifically excludes (i) all payments and other collections
of
principal and interest due on the Mortgage Loans on or before the Cut-off Date,
(ii) all Prepayment Charges payable in connection with Principal Prepayments
made before the Cut-off Date, (iii) the Net WAC Reserve Fund and (iv) the Cap
Contract.
REMIC
I Interest Loss Allocation Amount:
With
respect to any Distribution Date, an amount equal to (a) the product of (i)
the
aggregate Stated Principal Balance of the Mortgage Loans and REO Properties
then
outstanding and (ii) the Uncertificated REMIC I Pass-Through Rate for REMIC
I
Regular Interest LT-AA minus the Marker Rate, divided by (b) 12.
REMIC
I Overcollateralization Amount:
With
respect to any date of determination, (i) 1% of the aggregate Uncertificated
Principal Balances of the REMIC I Regular Interests minus (ii) the aggregate
of
the Uncertificated Principal Balances of REMIC I Regular Xxxxxxxx XX-X0, REMIC
I
Regular Xxxxxxxx XX-X0, REMIC I Regular Xxxxxxxx XX-X0, REMIC I Regular Xxxxxxxx
XX-X0, REMIC I Regular Xxxxxxxx XX-X0, REMIC I Regular Xxxxxxxx XX-X0, REMIC
I
Regular Interest LT-M1, REMIC I Regular Interest LT-M2, REMIC I Regular Interest
LT-M3, REMIC I Regular Interest LT-M4 and REMIC I Regular Interest LT-P, in
each
case as of such date of determination.
REMIC
I Principal Loss Allocation Amount:
With
respect to any Distribution Date, an amount equal to (a) the product of (i)
the
aggregate Stated Principal Balance of the Mortgage Loans and REO Properties
then
outstanding and (ii) 1 minus a fraction, the numerator of which is two times
the
aggregate of the Uncertificated Principal Balances of REMIC I Regular Xxxxxxxx
XX-X0, REMIC I Regular Xxxxxxxx XX-X0, REMIC I Regular Xxxxxxxx XX-X0, REMIC
I
Regular Xxxxxxxx XX-X0, REMIC I Regular Xxxxxxxx XX-X0, REMIC I Regular Xxxxxxxx
XX-X0, REMIC I Regular Interest LT-M1, REMIC I Regular Interest LT-M2, REMIC
I
Regular Interest LT-M3 and REMIC I Regular Interest LT-M4 and the denominator
of
which is the aggregate of the Uncertificated Principal Balances of REMIC I
Regular Xxxxxxxx XX-X0, REMIC I Regular Xxxxxxxx XX-X0, REMIC I Regular Xxxxxxxx
XX-X0, REMIC I Regular Xxxxxxxx XX-X0, REMIC I Regular Xxxxxxxx XX-X0, REMIC
I
Regular Xxxxxxxx XX-X0, REMIC I Regular Interest LT-M1, REMIC I Regular Interest
LT-M2, REMIC I Regular Interest LT-M3, REMIC I Regular Interest LT-M4 and REMIC
I Regular Interest LT-ZZ.
REMIC
I Regular Interests:
REMIC I
Regular Interest LT-AA, REMIC I Regular Xxxxxxxx XX-X0, REMIC I Regular Xxxxxxxx
XX-X0, REMIC I Regular Xxxxxxxx XX-X0, REMIC I Regular Xxxxxxxx XX-X0, REMIC
I
Regular Xxxxxxxx XX-X0, REMIC I Regular Xxxxxxxx XX-X0, REMIC I Regular Interest
LT-M1, REMIC I Regular Interest LT-M2, REMIC I Regular Interest LT-M3, REMIC
I
Regular Interest LT-M4, REMIC I Regular Interest LT-ZZ and REMIC I Regular
Interest LT-P.
REMIC
I Regular Interest LT-AA:
One of
the separate non-certificated beneficial ownership interests in REMIC I issued
hereunder and designated as a Regular Interest in REMIC I. REMIC I Regular
Interest LT-AA shall accrue interest at the related Uncertificated REMIC I
Pass-Through Rate in effect from time to time, and shall be entitled to
distributions of principal, subject to the terms and conditions hereof, in
an
aggregate amount equal to its initial Uncertificated Principal Balance as set
forth in the Preliminary Statement hereto.
REMIC
I Regular Interest LT-A1:
One of
the separate non-certificated beneficial ownership interests in REMIC I issued
hereunder and designated as a Regular Interest in REMIC I. REMIC I Regular
Xxxxxxxx XX-X0 shall accrue interest at the related Uncertificated REMIC I
Pass-Through Rate in effect from time to time, and shall be entitled to
distributions of principal, subject to the terms and conditions hereof, in
an
aggregate amount equal to its initial Uncertificated Principal Balance as set
forth in the Preliminary Statement hereto.
REMIC
I Regular Interest LT-A2:
One of
the separate non-certificated beneficial ownership interests in REMIC I issued
hereunder and designated as a Regular Interest in REMIC I. REMIC I Regular
Xxxxxxxx XX-X0 shall accrue interest at the related Uncertificated REMIC I
Pass-Through Rate in effect from time to time, and shall be entitled to
distributions of principal, subject to the terms and conditions hereof, in
an
aggregate amount equal to its initial Uncertificated Principal Balance as set
forth in the Preliminary Statement hereto.
REMIC
I Regular Interest LT-A3:
One of
the separate non-certificated beneficial ownership interests in REMIC I issued
hereunder and designated as a Regular Interest in REMIC I. REMIC I Regular
Xxxxxxxx XX-X0 shall accrue interest at the related Uncertificated REMIC I
Pass-Through Rate in effect from time to time, and shall be entitled to
distributions of principal, subject to the terms and conditions hereof, in
an
aggregate amount equal to its initial Uncertificated Principal Balance as set
forth in the Preliminary Statement hereto.
REMIC
I Regular Interest LT-A4:
One of
the separate non-certificated beneficial ownership interests in REMIC I issued
hereunder and designated as a Regular Interest in REMIC I. REMIC I Regular
Xxxxxxxx XX-X0 shall accrue interest at the related Uncertificated REMIC I
Pass-Through Rate in effect from time to time, and shall be entitled to
distributions of principal, subject to the terms and conditions hereof, in
an
aggregate amount equal to its initial Uncertificated Principal Balance as set
forth in the Preliminary Statement hereto.
REMIC
I Regular Interest LT-A5:
One of
the separate non-certificated beneficial ownership interests in REMIC I issued
hereunder and designated as a Regular Interest in REMIC I. REMIC I Regular
Xxxxxxxx XX-X0 shall accrue interest at the related Uncertificated REMIC I
Pass-Through Rate in effect from time to time, and shall be entitled to
distributions of principal, subject to the terms and conditions hereof, in
an
aggregate amount equal to its initial Uncertificated Principal Balance as set
forth in the Preliminary Statement hereto.
REMIC
I Regular Interest LT-A6:
One of
the separate non-certificated beneficial ownership interests in REMIC I issued
hereunder and designated as a Regular Interest in REMIC I. REMIC I Regular
Xxxxxxxx XX-X0 shall accrue interest at the related Uncertificated REMIC I
Pass-Through Rate in effect from time to time, and shall be entitled to
distributions of principal, subject to the terms and conditions hereof, in
an
aggregate amount equal to its initial Uncertificated Principal Balance as set
forth in the Preliminary Statement hereto.
REMIC
I Regular Interest LT-M1:
One of
the separate non-certificated beneficial ownership interests in REMIC I issued
hereunder and designated as a Regular Interest in REMIC I. REMIC I Regular
Interest LT-M1 shall accrue interest at the related Uncertificated REMIC I
Pass-Through Rate in effect from time to time, and shall be entitled to
distributions of principal, subject to the terms and conditions hereof, in
an
aggregate amount equal to its initial Uncertificated Principal Balance as set
forth in the Preliminary Statement hereto.
REMIC
I Regular Interest LT-M2:
One of
the separate non-certificated beneficial ownership interests in REMIC I issued
hereunder and designated as a Regular Interest in REMIC I. REMIC I Regular
Interest LT-M2 shall accrue interest at the related Uncertificated REMIC I
Pass-Through Rate in effect from time to time, and shall be entitled to
distributions of principal, subject to the terms and conditions hereof, in
an
aggregate amount equal to its initial Uncertificated Principal Balance as set
forth in the Preliminary Statement hereto.
REMIC
I Regular Interest LT-M3:
One of
the separate non-certificated beneficial ownership interests in REMIC I issued
hereunder and designated as a Regular Interest in REMIC I. REMIC I Regular
Interest LT-M3 shall accrue interest at the related Uncertificated REMIC I
Pass-Through Rate in effect from time to time, and shall be entitled to
distributions of principal, subject to the terms and conditions hereof, in
an
aggregate amount equal to its initial Uncertificated Principal Balance as set
forth in the Preliminary Statement hereto.
REMIC
I Regular Interest LT-M4:
One of
the separate non-certificated beneficial ownership interests in REMIC I issued
hereunder and designated as a Regular Interest in REMIC I. REMIC I Regular
Interest LT-M4 shall accrue interest at the related Uncertificated REMIC I
Pass-Through Rate in effect from time to time, and shall be entitled to
distributions of principal, subject to the terms and conditions hereof, in
an
aggregate amount equal to its initial Uncertificated Principal Balance as set
forth in the Preliminary Statement hereto.
REMIC
I Regular Interest LT-P:
One of
the separate non-certificated beneficial ownership interests in REMIC I issued
hereunder and designated as a Regular Interest in REMIC I. REMIC I Regular
Interest LT-P shall be entitled to distributions of principal, subject to the
terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
REMIC
I Regular Interest LT-ZZ:
One of
the separate non-certificated beneficial ownership interests in REMIC I issued
hereunder and designated as a Regular Interest in REMIC I. REMIC I Regular
Interest LT-ZZ shall accrue interest at the related Uncertificated REMIC I
Pass-Through Rate in effect from time to time, and shall be entitled to
distributions of principal, subject to the terms and conditions hereof, in
an
aggregate amount equal to its initial Uncertificated Principal Balance as set
forth in the Preliminary Statement hereto.
REMIC
I Regular Interest LT-ZZ Maximum Interest Deferral Amount:
With
respect to any Distribution Date, the excess of (i) accrued interest at the
Uncertificated REMIC I Pass-Through Rate applicable to REMIC I Regular Interest
LT-ZZ for such Distribution Date on a balance equal to the Uncertificated
Principal Balance of REMIC I Regular Interest LT-ZZ minus the REMIC I
Overcollateralization Amount, in each case for such Distribution Date, over
(ii)
Uncertificated Accrued Interest on REMIC I Regular Xxxxxxxx XX-X0, REMIC I
Regular Xxxxxxxx XX-X0, REMIC I Regular Xxxxxxxx XX-X0, REMIC I Regular Xxxxxxxx
XX-X0, REMIC I Regular Xxxxxxxx XX-X0, REMIC I Regular Xxxxxxxx XX-X0, REMIC
I
Regular Interest LT-M1, REMIC I Regular Interest LT-M2, REMIC I Regular Interest
LT-M3 and REMIC I Regular Interest LT-M4 for such Distribution Date, with the
rate on each such REMIC I Regular Interest subject to a cap equal to the related
Pass-Through Rate.
REMIC
I Required Overcollateralization Amount:
1% of
the Required Overcollateralization Amount.
REMIC
II:
The
segregated pool of assets consisting of all of the REMIC I Regular
Interests conveyed in trust to the Trustee, for the benefit of the REMIC II
Certificateholders pursuant to Section 2.07, and all amounts deposited
therein, with respect to which a separate REMIC election is to be
made.
REMIC
II Certificate:
Any
Regular Certificate or Class R Certificate.
REMIC
II Certificateholder:
The
Holder of any REMIC II Certificate.
REMIC
II Regular Interest:
Any of
the Class X Interest, Class P Interest, Class IO Interest and any “regular
interest” in REMIC II the ownership of which is represented by a Senior
Certificate or Subordinate Certificate.
REMIC
III:
The
segregated pool of assets consisting of all the Class X Interest conveyed in
trust to the Trustee, for the benefit of the Holders of the Regular Certificates
and the Class R-X Certificate (in respect of the Class R-3 Interest), pursuant
to Section 2.07 hereunder, and all amounts deposited therein, with respect
to
which a separate REMIC election is to be made.
REMIC
IV:
The
segregated pool of assets consisting of all of the Class P Interest conveyed
in
trust to the Trustee, for the benefit of the Holders of the Class P Certificates
and the Holders of the Class R-X Certificates (as holders of the Class R-4
Interest), pursuant to Section 2.07 hereunder, and all amounts deposited
therein, with respect to which a separate REMIC election is to be
made.
REMIC
V:
The
segregated pool of assets consisting of all of the Class IO Interest conveyed
in
trust to the Trustee, for the benefit of the Holders of REMIC V Regular Interest
IO and the Holders of the Class R-X Certificates (as holders of the Class R-5
Interest), pursuant to Section 2.07, and all amounts deposited therein, with
respect to which a separate REMIC election is to be made.
REMIC
V Regular Interest IO:
An
uncertificated interest in the Trust Fund held by the Trustee, evidencing a
Regular Interest in REMIC V for purposes of the REMIC Provisions.
REMIC
Opinion:
Shall
mean an Opinion of Counsel to the effect that the proposed action will not
have
an adverse affect on any REMIC created hereunder.
REMIC
Provisions:
Provisions of the federal income tax law relating to real estate mortgage
investment conduits, which appear at Sections 860A through 860G of Subchapter
M
of Chapter 1 of the Code, and related provisions, and proposed, temporary and
final regulations and published rulings, notices and announcements promulgated
thereunder, as the foregoing may be in effect from time to time as well as
provisions of applicable state laws.
REMIC
Regular Interest:
Any
REMIC I Regular Interest, Class X Interest, Class P Interest, or a Regular
Certificate.
Remittance
Date:
Shall
mean the eighteenth (18th)
day of
the month and if such day is not a Business Day, the immediately succeeding
Business Day.
REO
Property:
A
Mortgaged Property acquired by the Servicer through foreclosure or deed-in-lieu
of foreclosure in connection with a defaulted Mortgage Loan.
Replacement
Mortgage Loan:
A
Mortgage Loan or Mortgage Loans in the aggregate substituted by the Sponsor
for
a Deleted Mortgage Loan, which must, on the date of such substitution, as
confirmed in a request for release in accordance with the terms of the Custodial
Agreement, (i) have a Stated Principal Balance, after deduction of the principal
portion of the Scheduled Payment due in the month of substitution, not in excess
of, and not less than 90% of, the Stated Principal Balance of the Deleted
Mortgage Loan; (ii) have a fixed Mortgage Rate not less than or more than 1%
per
annum higher than the Mortgage Rate of the Deleted Mortgage Loan; (iii) have the
same or higher credit quality characteristics than that of the Deleted Mortgage
Loan; (iv) have a Loan-to-Value Ratio no higher than that of the Deleted
Mortgage Loan; (v) have a remaining term to maturity no greater than (and not
more than one year less than) that of the Deleted Mortgage Loan; (vi) be secured
by a first lien on the related Mortgaged Property; (vii) constitute the same
occupancy type as the Deleted Mortgage Loan or be owner occupied; (viii) comply
with each representation and warranty set forth in the Mortgage Loan Purchase
Agreement; and (ix) not permit conversion of the Mortgage Rate from a fixed
rate
to a variable rate.
Reportable
Event:
Has the
meaning set forth in Section 5.12(b) of this Agreement.
Reporting
Servicer:
Shall
mean the Servicer, the Master Servicer, the Securities Administrator, the
Custodian under the Custodial Agreement, and any Servicing Function Participant
engaged by such parties.
Required
Insurance Policy:
With
respect to any Mortgage Loan, any insurance policy that is required to be
maintained from time to time under this Agreement.
Required
Overcollateralization Amount:
With
respect to any Distribution Date prior to the Stepdown Date, 1.70% of the Stated
Principal Balance of the Mortgage Loans as of the Cut-off Date, and with respect
to any Distribution Date on or after the Stepdown Date and with respect to
which
a Trigger Event is not in effect, the greater of (i) 3.40% of the Stated
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period (after giving effect to scheduled payments of principal due during the
related Due Period to the extent received or advanced, unscheduled collections
of principal received during the related Prepayment Period and after reduction
for Realized Losses incurred during the related Prepayment Period) and (ii)
0.35% of the Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date; with respect to any Distribution Date on or after the Stepdown Date with
respect to which a Trigger Event is in effect, the Required
Overcollateralization Amount for such Distribution Date will be equal to the
Required Overcollateralization Amount for the Distribution Date immediately
preceding such Distribution Date. Notwithstanding the foregoing, on and after
any Distribution Date following the reduction of the aggregate Certificate
Principal Balance of the Publicly Offered Certificates to zero, the Required
Overcollateralization Amount shall be zero.
Required
Overcollateralization Percentage:
With
respect to any Distribution Date, a percentage equal to (a) the Required
Overcollateralization Amount divided by (b) the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period
(after giving effect to scheduled payments of principal due during the related
Due Period, to the extent received or advanced, and unscheduled collections
of
principal received during the related Prepayment Period, and after reduction
for
Realized Losses incurred on the Mortgage Loans during the related Prepayment
Period).
Residual
Certificates:
The
Class R Certificates and the Class R-X Certificates.
Responsible
Officer:
With
respect to the Trustee and the Securities Administrator, any Vice President,
any
Assistant Vice President, the Secretary, any Assistant Secretary, any Trust
Officer, any other officer customarily performing functions similar to those
performed by any of the above designated officers or other officers of the
Trustee or the Securities Administrator specified by the Trustee or the
Securities Administrator, as the case may be, having direct responsibility
over
this Agreement and customarily performing functions similar to those performed
by any one of the designated officers, as to whom, with respect to a particular
matter, such matter is referred because of such officer’s knowledge of and
familiarity with the particular subject.
Responsible
Party:
The
party indicated on Exhibit N as the entity primarily responsible for reporting
the information set forth therein to the Securities Administrator pursuant
to
Section 5.12.
S&P:
Standard & Poor’s, a division of The XxXxxx-Xxxx Companies, Inc. or its
successor in interest.
Xxxxxxxx-Xxxxx
Act:
Means
the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations of the Commission
promulgated thereunder (including any interpretations thereof by the
Commission’s staff).
Xxxxxxxx-Xxxxx
Certification:
A
written certification signed by an officer of the Master Servicer that complies
with (i) the Xxxxxxxx-Xxxxx Act of 2002, as amended from time to time, and
(ii)
Exchange Act Rules 13a-14(d) and 15d-14(d), as in effect from time to time;
provided that if, after the Closing Date (a) the Xxxxxxxx-Xxxxx Act of 2002
is
amended, (b) the Rules referred to in clause (ii) are modified or superseded
by
any subsequent statement, rule or regulation of the Commission or any statement
of a division thereof, or (c) any future releases, rules and regulations are
published by the Commission from time to time pursuant to the Xxxxxxxx-Xxxxx
Act
of 2002, which in any such case affects the form or substance of the required
certification and results in the required certification being, in the reasonable
judgment of the Master Servicer, materially more onerous than the form of the
required certification as of the Closing Date, the Xxxxxxxx-Xxxxx Certification
shall be as agreed to by the Master Servicer, the Depositor and the Seller
following a negotiation in good faith to determine how to comply with any such
new requirements.
Scheduled
Payment:
The
scheduled monthly payment on a Mortgage Loan due on any Due Date allocable
to
principal and/or interest on such Mortgage Loan.
Securities
Act:
The
Securities Act of 1933, as amended, and the rules and regulations promulgated
thereunder.
Securities
Administrator:
As of
the Closing Date, Xxxxx Fargo Bank, N.A. and thereafter, its respective
successors in interest that meet the qualifications of this Agreement. The
Securities Administrator and the Master Servicer shall at all times be the
same
Person or Affiliates.
Senior
Certificates:
The
Class A-1, Class A-2, Class A-3, Class A-4, Class A-5 and Class A-6
Certificates.
Senior
Interest Distribution Amount:
With
respect to any Distribution Date and any Class of Senior Certificates will
be
equal to the Interest Distribution Amount for such Distribution Date for such
Class and the Interest Carry Forward Amount, if any, for such Distribution
Date
for such Class.
Senior
Principal Distribution Amount:
With
respect to any Distribution Date which occurs (i) prior to the Stepdown Date
or
on or after the Stepdown Date if a Trigger Event is in effect, the Principal
Distribution Amount or (ii) on or after the Stepdown Date if a Trigger Event
is
not in effect for that Distribution Date, the lesser of:
| · |
the
Principal Distribution Amount for that Distribution Date;
and
|
| · |
the
excess, if any, of (A) the aggregate Certificate Principal Balance
of the
Senior Certificates immediately prior to that Distribution Date over
(B)
the positive difference between (i) the aggregate Stated Principal
Balance
of the Mortgage Loans as of the last day of the related Due Period
(after
reduction for Realized Losses incurred during the related Prepayment
Period) and (ii) the product of (x) the aggregate Stated Principal
Balance
of the Mortgage Loans as of the last day of the related Due Period
(after
reduction for Realized Losses incurred during the related Prepayment
Period) and (y) the sum of 18.50% and the Required Overcollateralization
Percentage.
|
Servicer:
Shall
mean Xxxxx Fargo Bank, N.A. or any successor thereto appointed hereunder in
connection with the servicing and administration of the Mortgage
Loans.
Servicer
Default:
As
defined in Section 8.01.
Servicer
Prepayment Charge Payment Amount:
The
amount payable by the Servicer in respect of any waived Prepayment Charges
pursuant to the Servicing Agreement.
Service(s)(ing):
Means,
in accordance with Regulation AB, the act of servicing and administering the
Mortgage Loans or any other assets of the Trust Fund by an entity that meets
the
definition of “servicer’ set forth in Item 1101 of Regulation AB and is subject
to the disclosure requirements set forth in 1108 of Regulation AB. For
clarification purposes, any uncapitalized occurrence of this term shall have
the
meaning commonly understood by participants in the residential mortgage-backed
securitization market.
Servicing
Advances:
As
defined in the Servicing Agreement.
Servicing
Agreement:
The
Seller’s Warranties and Servicing Agreement, dated as of May 1, 2006, between
the Sponsor and the Servicer (as modified pursuant to the Assignment
Agreement).
Servicing
Criteria:
Means
the criteria set forth in paragraph (d) of Item 1122 of Regulation AB, as such
may be amended from time to time.
Servicing
Fee:
As to
each Mortgage Loan and any Distribution Date, an amount equal to 1/12th of
the
Servicing Fee Rate multiplied by the Stated Principal Balance of such Mortgage
Loan as of the last day of the related Due Period or, in the event of any
payment of interest that accompanies a Principal Prepayment in full during
the
related Due Period made by the Mortgagor immediately prior to such prepayment,
interest at the Servicing Fee Rate on the same Stated Principal Balance of
such
Mortgage Loan used to calculate the payment of interest on such Mortgage
Loan.
Servicing
Fee Rate:
0.25%
per annum per Mortgage Loan.
Servicing
Function Participant:
Means
any Subservicer or Subcontractor of the Servicer, the Master Servicer and the
Securities Administrator, the Custodian. For purposes of Section 5.12(d), such
term also shall include the Servicer, the Master Servicer, the Securities
Administrator and the Custodian.
Servicing
Officer:
Any
officer of the Servicer involved in, or responsible for, the administration
and
the servicing of Mortgage Loans, whose name and specimen signature appear on
a
list of Servicing Officers furnished to the Master Servicer, the Securities
Administrator the Trustee and the Depositor on the Closing Date, as such list
may from time to time be amended.
Sponsor:
Nomura
Credit & Capital, Inc., a Delaware corporation, and its successors and
assigns, in its capacity as seller of the Mortgage Loans to the
Depositor.
Startup
Day:
The
Startup Day for REMIC I and REMIC II formed hereunder shall be the Closing
Date.
The Startup Day for REMIC III, REMIC IV and REMIC V shall be
[_________________].
Stated
Principal Balance:
With
respect to any Mortgage Loan or related REO Property and any Distribution Date,
the Cut-off Date Principal Balance thereof minus the sum of (i) the principal
portion of the Scheduled Payments due with respect to such Mortgage Loan during
each Due Period ending prior to such Distribution Date (and irrespective of
any
delinquency in their payment), (ii) all Principal Prepayments with respect
to
such Mortgage Loan received prior to or during the related Prepayment Period,
and all Liquidation Proceeds to the extent applied by the Servicer as recoveries
of principal in accordance with the Servicing Agreement with respect to such
Mortgage Loan, that were received by the Servicer as of the close of business
on
the last day of the Prepayment Period related to such Distribution Date and
(iii) any Realized Losses on such Mortgage Loan incurred during the related
Prepayment Period. The Stated Principal Balance of a Liquidated Loan equals
zero.
Stepdown
Date:
The
later to occur of (x) the Distribution Date in September 2009 and (y) the first
Distribution Date on which the Credit Enhancement Percentage of the Senior
Certificates (calculated for this purpose only after taking into account
distributions of principal on the Mortgage Loans, but prior to any distribution
of the Principal Distribution Amount to the holders of the Certificates then
entitled to distributions of principal on the Distribution Date) is greater
than
or equal to approximately 21.90%.
Subcontractor:
Shall
mean any vendor, subcontractor or other Person who is not responsible for the
overall servicing of Mortgage Loans but performs one or more discrete functions
identified in Item 1122(d) of Regulation AB with respect to Mortgage Loans
under
the direction or authority of the Servicer (or a Subservicer of the Servicer),
the Master Servicer, the Trustee, the Custodian or the Securities Administrator
and such subcontractor is determined by the Person engaging the subcontractor
to
be “participating in the servicing function” within the meaning of Item 1122 of
Regulation AB.
Subsequent
Recoveries:
Shall
mean all amounts in respect of principal received by the Servicer on a Mortgage
Loan for which a Realized Loss was previously incurred.
Subservicer:
Shall
mean any Person who is identified in Item 1122(d) of Regulation AB that services
the Mortgage Loans on behalf of the Servicer or is engaged by the Master
Servicer, the Securities Administrator or the Custodian, and is responsible
for
the performance (whether directly or through subservicers or Subcontractors)
of
a substantial portion of the material servicing functions required to be
performed by such Person under this Agreement or any subservicing
agreement.
Subservicing
Agreement:
Any
agreement entered into between the Servicer and a Subservicer with respect
to
the subservicing of any Mortgage Loan subject to the Servicing Agreement by
such
Subservicer.
Substitution
Adjustment Amount:
The
meaning ascribed to such term pursuant to Section 2.03(d).
Successor
Servicer:
Any
successor to the Servicer appointed pursuant to Section 8.02 of this
Agreement after the occurrence of a Servicer Default or upon the resignation
of
the Servicer pursuant to the Servicing Agreement.
Tax
Matters Person:
The
person designated as “tax matters person” in the manner provided under Treasury
regulation § 1.860F-4(d) and temporary Treasury regulation
§ 301.6231(a)(7)-1T. The holder of the greatest Percentage Interest in a
Class of Residual Certificates shall be the Tax Matters Person for the related
REMIC. The Securities Administrator, or any successor thereto or assignee
thereof shall serve as tax administrator hereunder and as agent for the related
Tax Matters Person.
Termination
Price:
The
price, calculated as set forth in Section 10.01, to be paid in connection
with the purchase of the Mortgage Loans pursuant to
Section 10.01.
Transfer
Affidavit:
As
defined in Section 6.02(c).
Transfer:
Any
direct or indirect transfer or sale of any Ownership Interest in a
Certificate.
Trigger
Event:
With
respect to any Distribution Date, a Trigger Event is in effect if (x) the
percentage obtained by dividing (i) the aggregate Stated Principal Balance
of
Mortgage Loans delinquent sixty (60) days or more (including Mortgage Loans
in
foreclosure or discharged in bankruptcy or any REO Property) by (ii) the
aggregate Stated Principal Balance of the Mortgage Loans, in each case, as
of
the last day of the previous calendar month, exceeds 31.96% of the Credit
Enhancement Percentage of the Senior Certificates for the prior Distribution
Date, or (y) the aggregate amount of Realized Losses on the Mortgage Loans
incurred since the Cut-off Date through the last day of the related Due Period
divided by the aggregate Stated Principal Balance of the Mortgage Loans as
of
the Cut-off Date exceeds the applicable percentages set forth below with respect
to such Distribution Date:
|
Distribution
Date
|
Percentage
|
|
September
2009 to August 2010
|
0.44%
|
|
September
2010 to August 2011
|
1.10%
|
|
September
2011 to August 2012
|
1.90%
|
|
September
2012 and thereafter
|
2.20%
|
Trust
Fund:
Collectively, the assets of REMIC I, REMIC II, REMIC III, REMIC IV, REMIC V,
the
Net WAC Reserve Fund and the Cap Contract.
Trustee:
HSBC
Bank USA, National Association, a national banking association, not in its
individual capacity, but solely in its capacity as trustee for the benefit
of
the Certificateholders under this Agreement, and any successor thereto, and
any
corporation or national banking association resulting from or surviving any
consolidation or merger to which it or its successors may be a party and any
successor trustee as may from time to time be serving as successor trustee
hereunder.
Uncertificated
Accrued Interest:
With
respect to each Uncertificated REMIC Regular Interest on each Distribution
Date,
an amount equal to one month’s interest at the related Uncertificated
Pass-Through Rate on the Uncertificated Principal Balance of such REMIC Regular
Interest. In each case, Uncertificated Accrued Interest will be reduced by
any
Prepayment Interest Shortfalls and shortfalls resulting from application of
the
Relief Act (allocated to such REMIC Regular Interests as set forth in Sections
1.02 and 5.07).
Uncertificated
Principal Balance:
With
respect to each REMIC Regular Interest, the principal amount of such REMIC
Regular Interest outstanding as of any date of determination. As of the Closing
Date, the Uncertificated Principal Balance of each REMIC Regular Interest shall
equal the amount set forth in the Preliminary Statement hereto as its initial
Uncertificated Principal Balance. On each Distribution Date, the Uncertificated
Principal Balance of each REMIC Regular Interest shall be reduced by all
distributions of principal made on such REMIC Regular Interest on such
Distribution Date pursuant to Section 5.07 and, if and to the extent necessary
and appropriate, shall be further reduced on such Distribution Date by Realized
Losses as provided in Section 5.07. The Uncertificated Principal Balance of
each
REMIC Regular Interest shall never be less than zero.
Uncertificated
REMIC I Pass-Through Rate:
A per
annum rate equal to the average of the Net Mortgage Rates of the Mortgage Loans
as of the first day of the related Due Period, weighted on the basis of the
Stated Principal Balances as of the first day of the related Due Period. REMIC
I
Regular Interest LT-P will not accrue interest.
Uncertificated
REMIC Regular Interest:
The
REMIC I Regular Interests.
Voting
Rights:
The
portion of the voting rights of all the Certificates that is allocated to any
Certificate for purposes of the voting provisions hereunder. Voting Rights
shall
be allocated (i) 97% to the Certificates (other than the Class X, Class P and
the Residual Certificates) and (ii) 1% to each of the Class X Certificates
and
Class P Certificates. Voting rights will be allocated among the Certificates
of
each such Class in accordance with their respective Percentage Interests. The
Residual Certificates will not be allocated any voting rights.
Section
1.02 Allocation
of Certain Interest Shortfalls.
For
purposes of calculating the amount of the Interest Distribution Amount for
the
Senior Certificates, Mezzanine Certificates and Class X Certificates for any
Distribution Date, (1) the aggregate amount of any Net Interest Shortfalls
in
respect of the Mortgage Loans for any Distribution Date shall first reduce
the
Interest Distribution Amount payable to the Class M-3 Certificates, second,
reduce the Interest Distribution Amount payable to the Class M-2 Certificates,
third, reduce the Interest Distribution Amount payable to the Class M-1
Certificates, and fourth, reduce the Interest Distribution Amount payable to
the
Senior Certificates, on a pro
rata
basis
based on, and to the extent of, one month’s interest at the then applicable
respective Pass-Through Rate on the respective Certificate Principal Balance
or
Certificate Notional Balance, as applicable of each such Certificate and (2)
the
aggregate amount of any Realized Losses on the Mortgage Loans allocated to
the
Mezzanine Certificates and Net WAC Rate Carryover Amount paid to the Senior
Certificates and the Mezzanine Certificates incurred for any Distribution Date
shall be allocated to the Class X Certificates based on, and to the extent
of,
one month’s interest at the then applicable Pass-Through Rate on the Certificate
Notional Balance thereof on any Distribution Date.
For
purposes of calculating the amount of Uncertificated Accrued Interest for the
REMIC I Regular Interests for any Distribution Date, the aggregate amount
of any Net Interest Shortfalls incurred in respect of the Mortgage Loans for
any
Distribution Date shall be allocated among
REMIC I Regular Interest LT-AA, REMIC I Regular Xxxxxxxx XX-X0, REMIC I Regular
Xxxxxxxx XX-X0, REMIC I Regular Xxxxxxxx XX-X0, REMIC I Regular Xxxxxxxx XX-X0,
REMIC
I
Regular Xxxxxxxx XX-X0,
REMIC I
Regular Xxxxxxxx XX-X0, REMIC I Regular Interest LT-M1, REMIC I Regular Interest
LT-M2, REMIC I Regular Interest LT-M3, REMIC I Regular Interest LT-M4 and REMIC
I Regular Interest LT-ZZ, pro rata based on, and to the extent of, one month’s
interest at the then applicable respective Uncertificated REMIC I Pass-Through
Rate on the respective Uncertificated Principal Balance of each such REMIC
I
Regular Interest.
ARTICLE
II
CONVEYANCE
OF TRUST FUND
REPRESENTATIONS
AND WARRANTIES
Section
2.01 Conveyance
of Trust Fund.
The
Sponsor hereby sells, transfers, assigns, sets over and otherwise conveys to
the
Depositor, without recourse, all the right, title and interest of the Sponsor
in
and to the assets in the Trust Fund.
The
Sponsor has entered into this Agreement in consideration for the purchase of
the
Mortgage Loans by the Depositor and has agreed to take the actions specified
herein.
The
Depositor, concurrently with the execution and delivery hereof, hereby sells,
transfers, assigns, sets over and otherwise conveys to the Trustee for the
use
and benefit of the Certificateholders, without recourse, all the right, title
and interest of the Depositor in and to the Trust Fund. The Depositor herewith
delivers to the Trustee or its Custodian an executed copy of the PMI Policy,
and
the Trustee or its Custodian, as applicable, acknowledges receipt of the same
on
behalf of the Certificateholders.
Concurrently
with the execution and delivery of this Agreement, the Depositor does hereby
assign to the Trustee all of its rights and interest under the Mortgage Loan
Purchase Agreement, to the extent of the Mortgage Loans sold under the Mortgage
Loan Purchase Agreement. The Trustee hereby accepts such assignment, and shall
be entitled to exercise all rights of the Depositor under the Mortgage Loan
Purchase Agreement as if, for such purpose, it were the Depositor. The foregoing
sale, transfer, assignment, set-over, deposit and conveyance does not and is
not
intended to result in creation or assumption by the Trustee of any obligation
of
the Depositor, the Sponsor or any other Person in connection with the Mortgage
Loans or any other agreement or instrument relating thereto except as
specifically set forth herein.
In
connection with such sale, the Depositor does hereby deliver to, and deposit
with the Custodian pursuant to the Custodial Agreement the documents with
respect to each Mortgage Loan as described under Section 2 of the Custodial
Agreement (the “Mortgage Loan Documents”). In connection with such delivery and
as further described in the Custodial Agreement, the Custodian will be required
to review such Mortgage Loan Documents and deliver to the Trustee, the
Depositor, the Servicer and the Sponsor certifications (in the forms attached
to
the Custodial Agreement) with respect to such review with exceptions noted
thereon. In addition, under the Custodial Agreement the Depositor will be
required to cure certain defects with respect to the Mortgage Loan Documents
for
the Mortgage Loans after the delivery thereof by the Depositor to the Custodian
as more particularly set forth therein.
Notwithstanding
anything to the contrary contained herein, the parties hereto acknowledge that
the functions of the Trustee with respect to the custody, acceptance, inspection
and release of the Mortgage Files, including but not limited to certain
insurance policies and documents contemplated by this Agreement, and preparation
and delivery of the certifications shall be performed by the Custodian pursuant
to the terms and conditions of the Custodial Agreement.
The
Depositor shall deliver or cause to be delivered to the Servicer copies of
all
trailing documents required to be included in the related Mortgage File at
the
same time the originals or certified copies thereof are delivered to the
Custodian, such documents including the mortgagee policy of title insurance
and
any Mortgage Loan Documents upon return from the recording office. The Servicer
shall not be responsible for any custodial fees or other costs incurred in
obtaining such documents and the Depositor shall cause the Servicer to be
reimbursed for any such costs the Servicer may incur in connection with
performing its obligations under the Servicing Agreement.
The
Mortgage Loans permitted by the terms of this Agreement to be included in the
Trust Fund are limited to (i) Mortgage Loans (which the Depositor acquired
pursuant to the Mortgage Loan Purchase Agreement, which contains, among other
representations and warranties, a representation and warranty of the Sponsor
that no Mortgage Loan is a “High-Cost Home Loan” as defined in the New Jersey
Home Ownership Act effective November 27, 2003, as defined in the New Mexico
Home Loan Protection Act effective January 1, 2004) as defined in the
Massachusetts Predatory Home Loan Practices Act, effective November 7, 2004
(Mass. Xxx. Laws Ch. 183C) or as defined in the Indiana Home Loan Practices
Act,
effective January 1, 2005 (Ind. Code Xxx. Sections 24-9-1 through 24-9-9) and
(ii) Qualified Substitute Mortgage Loans (which, by definition as set forth
herein and referred to in the Mortgage Loan Purchase Agreement, are required
to
conform to, among other representations and warranties, the representation
and
warranty of the Sponsor that no Qualified Substitute Mortgage Loan is a
“High-Cost Home Loan” as defined in the New Jersey Home Ownership Act effective
November 27, 2003, as defined in the New Mexico Home Loan Protection Act
effective January 1, 2004, as defined in the Massachusetts Predatory Home Loan
Practices Act, effective November 7, 2004 (Mass. Xxx. Laws Ch. 183C) or as
defined in the Indiana Home Loan Practices Act, effective January 1, 2005 (Ind.
Code Xxx. Sections 24-9-1 through 24-9-9). The Depositor and the Trustee on
behalf of the Trust Fund understand and agree that it is not intended that
any
mortgage loan be included in the Trust Fund that is a “High-Cost Home Loan” as
defined in the New Jersey Home Ownership Act effective November 27, 2003, as
defined in the New Mexico Home Loan Protection Act effective January 1, 2004,
as
defined in the Massachusetts Predatory Home Loan Practices Act, effective
November 7, 2004 (Mass. Xxx. Laws Ch. 183C) or as defined in the Indiana Home
Loan Practices Act, effective January 1, 2005 (Ind. Code Xxx. Sections 24-9-1
through 24-9-9).
Section
2.02 Acceptance
of the Mortgage Loans.
(a) Based
on
the initial trust receipt received by it from the Custodian pursuant to the
Custodial Agreement, the Trustee acknowledges receipt, subject to the provisions
of Section 2.01 hereof and Section 2 of the Custodial Agreement, of
the Mortgage Loan Documents and all other assets included in the definition
of
“REMIC I” under clauses (i), (ii) (iii), (v) and (vi) (to the extent of amounts
deposited into the Distribution Account) and declares that it holds (or the
Custodian on its behalf holds) and will hold such documents and the other
documents delivered to it constituting a Mortgage Loan Document, and that it
holds (or the Custodian on its behalf holds) or will hold all such assets and
such other assets included in the definition of “REMIC I” in trust for the
exclusive use and benefit of all present and future
Certificateholders.
(b) In
conducting the review of the Mortgage Files in accordance with the Custodial
Agreement, the Custodian on the Trustee’s behalf will ascertain whether all
required documents have been executed and received and whether those documents
relate to the Mortgage Loans identified in Exhibit B to this Agreement, as
supplemented. If the Custodian finds any document constituting part of the
Mortgage File not to have been executed or received, or to be unrelated to
the
Mortgage Loans identified in Exhibit B, the Sponsor shall correct or cure any
such defect or, if prior to the end of the second anniversary of the Closing
Date, the Sponsor may substitute for the related Mortgage Loan a Replacement
Mortgage Loan, which substitution shall be accomplished in the manner and
subject to the conditions set forth in Section 2.03 or shall deliver to the
Trustee an Opinion of Counsel to the effect that such defect does not materially
or adversely affect the interests of the Certificateholders in such Mortgage
Loan within sixty (60) days from the date of notice from the Custodian of the
defect and if the Sponsor fails to correct or cure the defect or deliver such
opinion within such period, the Sponsor will, subject to Section 2.03,
within ninety (90) days from the notification of the Custodian purchase such
Mortgage Loan at the Purchase Price; provided, however, that if such defect
relates solely to the inability of the Sponsor to deliver the Mortgage,
assignment thereof to the Custodian, or intervening assignments thereof with
evidence of recording thereon because such documents have been submitted for
recording and have not been returned by the applicable jurisdiction, the Sponsor
shall not be required to purchase such Mortgage Loan if the Sponsor delivers
such documents promptly upon receipt, but in no event later than 360 days after
the Closing Date.
(c) No
later
than 180 days after the Closing Date, the Custodian on the Trustee’s behalf will
review, for the benefit of the Certificateholders, the Mortgage Files and will
execute and deliver or cause to be executed and delivered to the Sponsor and
the
Trustee, a final trust receipt substantially in the form annexed to the
Custodial Agreement. In conducting such review, the Custodian on the Trustee’s
behalf and in accordance with the terms of the Custodial Agreement will
ascertain whether each document required to be recorded has been returned from
the recording office with evidence of recording thereon and the Custodian on
the
Trustee’s behalf has received either an original or a copy thereof, as required
in the Custodial Agreement. If the Custodian finds that any document with
respect to a Mortgage Loan has not been received, or is unrelated to the
Mortgage Loans identified in Exhibit B or appears to be defective on its face,
the Custodian shall note such defect in the exception report attached the final
trust receipt issued pursuant to the Custodial Agreement and the Sponsor shall
correct or cure any such defect or, if prior to the end of the second
anniversary of the Closing Date, the Sponsor may substitute for the related
Mortgage Loan a Replacement Mortgage Loan, which substitution shall be
accomplished in the manner and subject to the conditions set forth in
Section 2.03 or shall deliver to the Trustee an Opinion of Counsel to the
effect that such defect does not materially or adversely affect the interests
of
Certificateholders in such Mortgage Loan within sixty (60) days from the date
of
notice from the Trustee of the defect and if the Sponsor is unable within such
period to correct or cure such defect, or to substitute the related Mortgage
Loan with a Replacement Mortgage Loan or to deliver such opinion, the Sponsor
shall, subject to Section 2.03, within ninety (90) days from the
notification of the Trustee, purchase such Mortgage Loan at the Purchase Price;
provided, however, that if such defect relates solely to the inability of the
Sponsor to deliver the Mortgage, assignment thereof to the Trustee or
intervening assignments thereof with evidence of recording thereon, because
such
documents have not been returned by the applicable jurisdiction, the Sponsor
shall not be required to purchase such Mortgage Loan, if the Sponsor delivers
such documents promptly upon receipt, but in no event later than 360 days after
the Closing Date.
(d) In
the
event that a Mortgage Loan is purchased by the Sponsor in accordance with
subsections 2.02(a) or (b) above or Section 2.03, the Sponsor shall remit
the applicable Purchase Price to the Servicer for deposit in the Custodial
Account and shall provide written notice to the Securities Administrator
detailing the components of the Purchase Price, signed by an authorized officer.
Upon receipt of notice of the deposit of the Purchase Price in the Custodial
Account and upon receipt of a request for release (in the form attached to
the
Custodial Agreement) with respect to such Mortgage Loan, the Custodian, on
behalf of the Trustee, will release to the Sponsor the related Mortgage File
and
the Trustee shall execute and deliver all instruments of transfer or assignment,
without recourse, furnished to it by the Sponsor, as are necessary to vest
in
the Sponsor title to and rights under the Mortgage Loan. Such purchase shall
be
deemed to have occurred on the date on which the deposit into the Custodial
Account was made. The Trustee shall promptly notify the Rating Agencies of
such
repurchase. The obligation of the Sponsor to cure, repurchase or substitute
for
any Mortgage Loan as to which a defect in a constituent document exists shall
be
the sole remedies respecting such defect available to the Certificateholders
or
to the Trustee on their behalf. The Sponsor shall promptly reimburse the Trustee
for any expenses incurred by the Trustee in respect of enforcing the remedies
for such breach.
(e) The
Sponsor shall deliver to the Custodian the Mortgage Note and other documents
constituting the Mortgage File with respect to any Replacement Mortgage Loan,
which the Custodian will review as provided in the Custodial Agreement,
provided, that the Closing Date referred to therein shall instead be the date
of
delivery of the Mortgage File with respect to each Replacement Mortgage
Loan.
Section
2.03 Representations,
Warranties and Covenants of the Sponsor and the Master Servicer.
(a) The
Sponsor hereby represents and warrants to and covenants with, the Depositor,
the
Master Servicer, the Securities Administrator and the Trustee as follows, as
of
the Closing Date:
(i) The
Sponsor is duly organized, validly existing and in good standing under the
laws
of the State of Delaware and is duly authorized and qualified to transact any
and all business contemplated by this Agreement to be conducted by the Sponsor
in any state in which a Mortgaged Property is located or is otherwise not
required under applicable law to effect such qualification and, in any event,
is
in compliance with the doing business laws of any such state, to the extent
necessary to ensure its ability to enforce each Mortgage Loan, to sell the
Mortgage Loans in accordance with the terms of this Agreement and to perform
any
of its other obligations under this Agreement in accordance with the terms
hereof.
(ii) The
Sponsor has the full corporate power and authority to sell each Mortgage Loan,
and to execute, deliver and perform, and to enter into and consummate the
transactions contemplated by this Agreement and has duly authorized by all
necessary corporate action on the part of the Sponsor the execution, delivery
and performance of this Agreement; and this Agreement, assuming the due
authorization, execution and delivery hereof by the other parties hereto,
constitutes a legal, valid and binding obligation of the Sponsor, enforceable
against the Sponsor in accordance with its terms, except that (a) the
enforceability hereof may be limited by bankruptcy, insolvency, moratorium,
receivership and other similar laws relating to creditors’ rights generally and
(b) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion
of
the court before which any proceeding therefor may be brought and further
subject to public policy with respect to indemnity and contribution under
applicable securities law.
(iii) The
execution and delivery of this Agreement by the Sponsor, the sale of the
Mortgage Loans by the Sponsor under this Agreement, the consummation of any
other of the transactions contemplated by this Agreement, and the fulfillment
of
or compliance with the terms hereof are in the ordinary course of business
of
the Sponsor and will not (A) result in a material breach of any term or
provision of the charter or by-laws of the Sponsor or (B) materially conflict
with, result in a material breach, violation or acceleration of, or result
in a
material default under, the terms of any other material agreement or instrument
to which the Sponsor is a party or by which it may be bound, or (C) constitute
a
material violation of any statute, order or regulation applicable to the Sponsor
of any court, regulatory body, administrative agency or governmental body having
jurisdiction over the Sponsor; and the Sponsor is not in breach or violation
of
any material indenture or other material agreement or instrument, or in
violation of any statute, order or regulation of any court, regulatory body,
administrative agency or governmental body having jurisdiction over it which
breach or violation may materially impair the Sponsor’s ability to perform or
meet any of its obligations under this Agreement.
(iv) The
Sponsor is an approved seller of conventional mortgage loans for Xxxxxx Xxx
or
Xxxxxxx Mac and is a mortgagee approved by the Secretary of Housing and Urban
Development pursuant to sections 203 and 211 of the National Housing
Act.
(v) No
litigation is pending or, to the best of the Sponsor’s knowledge, threatened,
against the Sponsor that would materially and adversely affect the execution,
delivery or enforceability of this Agreement or the ability of the Sponsor
to
sell the Mortgage Loans or to perform any of its other obligations under this
Agreement in accordance with the terms hereof.
(vi) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Sponsor
of,
or compliance by the Sponsor with, this Agreement or the consummation of the
transactions contemplated hereby, or if any such consent, approval,
authorization or order is required, the Sponsor has obtained the
same.
(vii) The
representations and warranties set forth in Section 8 of the Mortgage Loan
Purchase Agreement are true and correct as of the Closing Date.
(viii) No
Mortgage Loan is subject to the Home Ownership and Equity Protection Act of
1994
or any comparable law and no Mortgage Loan is classified and/or defined as
a
“high cost”, “covered”, “high risk home” or “predatory” loan under any other
state, federal or local law or regulation or ordinance (or a similarly
classified loan using different terminology under a law imposing heightened
regulatory scrutiny or additional legal liability for residential mortgage
loans
having high interest rates, points and/or fees).
(ix) No
loan
is a High Cost Loan or Covered Loan, as applicable (as such terms are defined
in
Appendix E of the Standard & Poor's Glossary For File Format For LEVELS®
Version 5.6 Revised (attached hereto as Exhibit K) and no Mortgage Loan
originated on or after October 1, 2002 through March 6, 2003 is governed by
the
Georgia Fair Lending Act.
(x) Any
and
all requirements of any federal, state or local law including, without
limitation, usury, truth in lending, real estate settlement procedures, consumer
credit protection, equal credit opportunity, fair housing, predatory, abusive
lending or disclosure laws applicable to the origination and servicing of the
Mortgage Loans have been complied with in all material respects.
(b) Upon
discovery by any of the parties hereto of a breach of a representation or
warranty set forth in Section 2.03(b)(viii), (ix) and (x) and
Section 8 of the Mortgage Loan Purchase Agreement that materially and
adversely affects the interests of the Certificateholders in any Mortgage Loan,
the party discovering such breach shall give prompt written notice thereof
to
the other parties. The Sponsor hereby covenants with respect to the
representations and warranties set forth in Section 2.03(b)(viii), (ix) and
(x) and Section 8 of the Mortgage Loan Purchase Agreement, that within
ninety (90) days of the discovery of a breach of any representation or warranty
set forth therein that materially and adversely affects the interests of the
Certificateholders in any Mortgage Loan, it shall cure such breach in all
material respects and, if such breach is not so cured, (i) prior to the second
anniversary of the Closing Date, remove such Mortgage Loan (a “Deleted Mortgage
Loan”) from the Trust Fund and substitute in its place a Replacement Mortgage
Loan, in the manner and subject to the conditions set forth in this Section;
or
(ii) repurchase the affected Mortgage Loan or Mortgage Loans from the Trustee
at
the Purchase Price in the manner set forth below; provided that any such
substitution pursuant to (i) above or repurchase pursuant to (ii) above shall
not be effected prior to the delivery to the Trustee of an Opinion of Counsel
if
required by Section 2.05 and any such substitution pursuant to (i) above
shall not be effected prior to the additional delivery to the Custodian of
a
request for release in accordance with the Custodial Agreement. The Sponsor
shall promptly reimburse the Trustee for any expenses reasonably incurred by
the
Trustee in respect of enforcing the remedies for such breach. To enable the
Servicer to amend the Mortgage Loan Schedule, the Sponsor shall, unless it
cures
such breach in a timely fashion pursuant to this Section 2.03, promptly
notify the Trustee whether it intends either to repurchase, or to substitute
for, the Mortgage Loan affected by such breach. With respect to the
representations and warranties in Section 8 of the Mortgage Loan Purchase
Agreement that are made to the best of the Sponsor’s knowledge, if it is
discovered by any of the Depositor, the Sponsor or the Trustee that the
substance of such representation and warranty is inaccurate and such inaccuracy
materially and adversely affects the value of the related Mortgage Loan,
notwithstanding the Sponsor’s lack of knowledge with respect to the substance of
such representation or warranty, the Sponsor shall nevertheless be required
to
cure, substitute for or repurchase the affected Mortgage Loan in accordance
with
the foregoing. Notwithstanding the foregoing, any breach of a representation
or
warranty contained in clauses (xxxvii), (xxxviii), (xxxix), (xl) and/or (xlv)
of
Section 8 of the Mortgage Loan Purchase Agreement shall be automatically
deemed to materially and adversely affect the interests of the
Certificateholders.
With
respect to any Replacement Mortgage Loan or Loans, the Sponsor shall deliver
to
the Custodian for the benefit of the Certificateholders such documents and
agreements as are required by Section 2 of the Custodial Agreement. No
substitution will be made in any calendar month after the Determination Date
for
such month. Scheduled Payments due with respect to Replacement Mortgage Loans
in
the Due Period related to the Distribution Date on which such proceeds are
to be
distributed shall not be part of the Trust Fund and will be retained by the
Sponsor. For the month of substitution, distributions to Certificateholders
will
include the Scheduled Payment due on any Deleted Mortgage Loan for the related
Due Period and thereafter the Sponsor shall be entitled to retain all amounts
received in respect of such Deleted Mortgage Loan. The Servicer shall amend
the
Mortgage Loan Schedule for the benefit of the Certificateholders to reflect
the
removal of such Deleted Mortgage Loan and the substitution of the Replacement
Mortgage Loan or Loans and shall deliver the amended Mortgage Loan Schedule
to
the Trustee, the Master Servicer and the Securities Administrator. Upon such
substitution, the Replacement Mortgage Loan or Loans shall be subject to the
terms of this Agreement in all respects, and the Sponsor shall be deemed to
have
made with respect to such Replacement Mortgage Loan or Loans, as of the date
of
substitution, the representations and warranties set forth in Section 8 of
the Mortgage Loan Purchase Agreement with respect to such Mortgage Loan. Upon
any such substitution and receipt of notice of the deposit into the related
Custodial Account of the amount required to be deposited therein in connection
with such substitution as described in the following paragraph and receipt
by
the Custodian of a request for release for such Mortgage Loan in accordance
with
the Custodial Agreement, the Custodian on behalf of the Trustee shall release
to
the Sponsor the Mortgage File relating to such Deleted Mortgage Loan and held
for the benefit of the Certificateholders and the Trustee shall execute and
deliver at the Sponsor’s direction such instruments of transfer or assignment as
have been prepared by the Sponsor, in each case without recourse, as shall
be
necessary to vest in the Sponsor, or its respective designee, title to the
Trustee’s interest in any Deleted Mortgage Loan substituted for pursuant to this
Section 2.03. Neither the Trustee nor the Custodian shall have any further
responsibility with regard to such Mortgage File.
For
any
month in which the Sponsor substitutes one or more Replacement Mortgage Loans
for a Deleted Mortgage Loan, the Securities Administrator will determine the
amount (if any) by which the aggregate principal balance of all the Replacement
Mortgage Loans as of the date of substitution is less than the Stated Principal
Balance (after application of the principal portion of the Scheduled Payment
due
in the month of substitution) of such Deleted Mortgage Loan. An amount equal
to
the aggregate of such deficiencies, described in the preceding sentence for
any
Distribution Date (such amount, the “Substitution Adjustment Amount”) shall be
remitted to the Servicer for deposit in the Custodial Account by the Sponsor
delivering such Replacement Mortgage Loan on or before the Determination Date
for the Distribution Date relating to the Prepayment Period during which the
related Mortgage Loan was required to be purchased or replaced
hereunder.
In
the
event that the Sponsor shall be required to repurchase a Mortgage Loan, the
Purchase Price therefor shall be remitted to the Servicer for deposit in the
Custodial Account, on or before the Determination Date immediately following
the
date on which the Sponsor was required to repurchase such Mortgage Loan. The
Purchase Price shall be remitted by the Servicer to the Securities Administrator
on the Remittance Date occurring in the month immediately following the month
in
which the Purchase Price was deposited in the related Custodial Account. In
addition, upon such deposit of the Purchase Price, the delivery of an Officer’s
Certificate by the Servicer to the Trustee certifying that the Purchase Price
has been deposited in the Custodial Account, the delivery of an Opinion of
Counsel if required by Section 2.05 and the receipt of a Request for
Release, the Trustee shall release the related Mortgage File held for the
benefit of the related Certificateholders to the Sponsor, and the Trustee shall
execute and deliver at such Person’s direction the related instruments of
transfer or assignment prepared by the Sponsor, in each case without recourse,
as shall be necessary to transfer title from the Trustee for the benefit of
the
Certificateholders and transfer the Trustee’s interest to the Sponsor to any
Mortgage Loan purchased pursuant to this Section 2.03. It is understood and
agreed that the obligation under this Agreement of the Sponsor to cure,
repurchase or replace any Mortgage Loan as to which a breach has occurred or
is
continuing shall constitute the sole remedies against the Sponsor respecting
such breach available to each Certificateholder, the Depositor or the
Trustee.
(c) The
Master Servicer hereby represents, warrants and covenants with the Sponsor,
the
Depositor and the Trustee as follows, as of the Closing Date:
(i) The
Master Servicer is a national banking association duly formed, validly existing
and in good standing under the laws of the United States of America and is
duly
authorized and qualified to transact any and all business contemplated by this
Agreement to be conducted by the Master Servicer;
(ii) The
Master Servicer has the full power and authority to conduct its business as
presently conducted by it and to execute, deliver and perform, and to enter
into
and consummate, all transactions contemplated by this Agreement. The Master
Servicer has duly authorized the execution, delivery and performance of this
Agreement, has duly executed and delivered this Agreement, and this Agreement,
assuming due authorization, execution and delivery by the other parties hereto,
constitutes a legal, valid and binding obligation of the Master Servicer,
enforceable against it in accordance with its terms except as the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization or similar
laws
affecting the enforcement of creditors’ rights generally and by general
principles of equity;
(iii) The
execution and delivery of this Agreement by the Master Servicer, the
consummation by the Master Servicer of any other of the transactions herein
contemplated, and the fulfillment of or compliance with the terms hereof are
in
the ordinary course of business of the Master Servicer and will not (A) result
in a breach of any term or provision of charter and by-laws of the Master
Servicer or (B) conflict with, result in a breach, violation or acceleration
of,
or result in a default under, the terms of any other material agreement or
instrument to which the Master Servicer is a party or by which it may be bound,
or any statute, order or regulation applicable to the Master Servicer of any
court, regulatory body, administrative agency or governmental body having
jurisdiction over the Master Servicer; and the Master Servicer is not a party
to, bound by, or in breach or violation of any indenture or other agreement
or
instrument, or subject to or in violation of any statute, order or regulation
of
any court, regulatory body, administrative agency or governmental body having
jurisdiction over it, which materially and adversely affects or, to the Master
Servicer’s knowledge, would in the future materially and adversely affect, (x)
the ability of the Master Servicer to perform its obligations under this
Agreement or (y) the business, operations, financial condition, properties
or
assets of the Master Servicer taken as a whole;
(iv) The
Master Servicer does not believe, nor does it have any reason or cause to
believe, that it cannot perform each and every covenant made by it and contained
in this Agreement;
(v) No
litigation is pending against the Master Servicer that would materially and
adversely affect the execution, delivery or enforceability of this Agreement
or
the ability of the Master Servicer to perform any of its other obligations
hereunder in accordance with the terms hereof,
(vi) There
are
no actions or proceedings against, or investigations known to it of, the Master
Servicer before any court, administrative or other tribunal (A) that might
prohibit its entering into this Agreement, (B) seeking to prevent the
consummation of the transactions contemplated by this Agreement or (C) that
might prohibit or materially and adversely affect the performance by the Master
Servicer of its obligations under, or validity or enforceability of, this
Agreement; and
(vii) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Master
Servicer of, or compliance by the Master Servicer with, this Agreement or the
consummation by it of the transactions contemplated by this Agreement, except
for such consents, approvals, authorizations or orders, if any, that have been
obtained prior to the Closing Date.
(d) The
representations and warranties set forth in Section 2.03 shall survive
delivery of the respective Mortgage Loans and Mortgage Files to the Trustee
or
the Custodian for the benefit of the Certificateholders.
Section
2.04 Representations
and Warranties of the Depositor.
The
Depositor hereby represents and warrants to, and covenants, with the Sponsor,
the Master Servicer, the Securities Administrator and the Trustee as follows,
as
of the date hereof and as of the Closing Date:
(i) The
Depositor is duly organized and is validly existing as a corporation in good
standing under the laws of the State of Delaware and has full power and
authority (corporate and other) necessary to own or hold its properties and
to
conduct its business as now conducted by it and to enter into and perform its
obligations under this Agreement.
(ii) The
Depositor has the full corporate power and authority to execute, deliver and
perform, and to enter into and consummate the transactions contemplated by,
this
Agreement and has duly authorized, by all necessary corporate action on its
part, the execution, delivery and performance of this Agreement; and this
Agreement, assuming the due authorization, execution and delivery hereof by
the
other parties hereto, constitutes a legal, valid and binding obligation of
the
Depositor, enforceable against the Depositor in accordance with its terms,
subject, as to enforceability, to (i) bankruptcy, insolvency, moratorium
receivership and other similar laws relating to creditors’ rights generally and
(ii) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion
of
the court before which any proceeding therefor may be brought and further
subject to public policy with respect to indemnity and contribution under
applicable securities law.
(iii) The
execution and delivery of this Agreement by the Depositor, the consummation
of
the transactions contemplated by this Agreement, and the fulfillment of or
compliance with the terms hereof are in the ordinary course of business of
the
Depositor and will not (A) result in a material breach of any term or provision
of the charter or by-laws of the Depositor or (B) materially conflict with,
result in a material breach, violation or acceleration of, or result in a
material default under, the terms of any other material agreement or instrument
to which the Depositor is a party or by which it may be bound or (C) constitute
a material violation of any statute, order or regulation applicable to the
Depositor of any court, regulatory body, administrative agency or governmental
body having jurisdiction over the Depositor; and the Depositor is not in breach
or violation of any material indenture or other material agreement or
instrument, or in violation of any statute, order or regulation of any court,
regulatory body, administrative agency or governmental body having jurisdiction
over it which breach or violation may materially impair the Depositor’s ability
to perform or meet any of its obligations under this Agreement.
(iv) No
litigation is pending, or, to the best of the Depositor’s knowledge, threatened,
against the Depositor that would materially and adversely affect the execution,
delivery or enforceability of this Agreement or the ability of the Depositor
to
perform its obligations under this Agreement in accordance with the terms
hereof.
(v) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Depositor
of, or compliance by the Depositor with, this Agreement or the consummation
of
the transactions contemplated hereby, or if any such consent, approval,
authorization or order is required, the Depositor has obtained the
same.
The
Depositor hereby represents and warrants to the Trustee as of the Closing Date,
following the transfer of the Mortgage Loans to it by the Sponsor, the Depositor
had good title to the Mortgage Loans and the related Mortgage Notes were subject
to no offsets, claims, defenses or counterclaims.
It
is
understood and agreed that the representations and warranties set forth in
this
Section 2.04 shall survive delivery of the Mortgage Files to the Trustee or
the Custodian for the benefit of the Certificateholders. Upon discovery by
the
Depositor, the Servicer, the Master Servicer or the Trustee of a breach of
such
representations and warranties, the party discovering such breach shall give
prompt written notice to the others and to each Rating Agency.
Section
2.05 Delivery
of Opinion of Counsel in Connection with Substitutions and
Repurchases.
(a) Notwithstanding
any contrary provision of this Agreement, with respect to any Mortgage Loan
that
is not in default or as to which default is not imminent, no repurchase or
substitution pursuant to Sections 2.02 or 2.03 shall be made unless the Sponsor
delivers to the Trustee an Opinion of Counsel, addressed to the Trustee, to
the
effect that such repurchase or substitution would not (i) result in the
imposition of the tax on “prohibited transactions” of any REMIC executed
hereunder or contributions after the Closing Date, as defined in sections
860F(a)(2) and 860G(d) of the Code, respectively or (ii) cause any REMIC to
fail
to qualify as a REMIC at any time that any Certificates are outstanding. Any
Mortgage Loan as to which repurchase or substitution was delayed pursuant to
this paragraph shall be repurchased or the substitution therefor shall occur
(subject to compliance with Sections 2.02 or 2.03) upon the earlier of (a)
the
occurrence of a default or imminent default with respect to such Mortgage Loan
and (b) receipt by the Trustee of an Opinion of Counsel to the effect that
such
repurchase or substitution, as applicable, will not result in the events
described in clause (i) or clause (ii) of the preceding sentence.
(b) Upon
discovery by the Depositor or the Sponsor that any Mortgage Loan does not
constitute a “qualified mortgage” within the meaning of section 860G(a)(3) of
the Code, the party discovering such fact shall promptly (and in any event
within five (5) Business Days of discovery) give written notice thereof to
the
other parties and the Trustee. In connection therewith, the Sponsor, at its
option, shall either (i) substitute, if the conditions in Section 2.03(c)
with respect to substitutions are satisfied, a Replacement Mortgage Loan for
the
affected Mortgage Loan, or (ii) repurchase the affected Mortgage Loan within
ninety (90) days of such discovery in the same manner as it would a Mortgage
Loan for a breach of representation or warranty contained in Section 2.03.
The Trustee shall reconvey to the Sponsor the Mortgage Loan to be released
pursuant hereto in the same manner, and on the same terms and conditions, as
it
would a Mortgage Loan repurchased for breach of a representation or warranty
contained in Section 2.03.
Section
2.06 Issuance
of the REMIC I Regular Interests.
The
Trustee acknowledges the assignment to it of the Mortgage Loans and the delivery
to the Custodian on its behalf of the related Mortgage Files, subject to the
provisions of Section 2.01 and Section 2.02, together with the assignment to
it
of all other assets included in REMIC I, the receipt of which is hereby
acknowledged. The interests evidenced by the Class R-1 Interest, together with
the REMIC I Regular Interests, constitute the entire beneficial ownership
interest in REMIC I. The rights of the Holders of the Class R-1 Interest and
REMIC I (as holder of the REMIC I Regular Interests) to receive distributions
from the proceeds of REMIC I in respect of the Class R-1 Interest and the REMIC
I Regular Interests, respectively, and all ownership interests evidenced or
constituted by the Class R-1 Interest and the REMIC I Regular Interests, shall
be as set forth in this Agreement.
Section
2.07 Conveyance
of the REMIC I Regular Interests; Issuance and Conveyance of the Class X
Interest, the Class P Interest, and the Class IO Interest.
The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey to the Trustee, without recourse
all the right, title and interest of the Depositor in and to the REMIC I Regular
Interests for the benefit of the Class R-2 Interest and REMIC II (as holder
of
the REMIC I Regular Interests). The Trustee acknowledges receipt of the REMIC
I
Regular Interests and declares that it holds and will hold the same in trust
for
the exclusive use and benefit of all present and future Holders of the Class
R-2
Interest and REMIC II (as holder of the REMIC I Regular Interests). The rights
of the Holder of the Class R-2 Interest and REMIC II (as holder of the REMIC
I
Regular Interests) to receive distributions from the proceeds of REMIC II in
respect of the Class R-2 Interest and the Regular Certificates (other than
the
Class X Certificates and the Class P Certificates), the Class X Interest, the
Class P Interest and the Class IO Interest, respectively, and all ownership
interests evidenced or constituted by the Class R-2 Interest and the Regular
Certificates (other than the Class X Certificates and the Class P Certificates),
the Class X Interest, the Class P Interest, and the Class IO Interest, shall
be
as set forth in this Agreement. The Class R-2 Interest, the Regular Certificates
(other than the Class X Certificates and the Class P Certificates), the Class
X
Interest, the Class P Interest and the Class IO Interest shall constitute the
entire beneficial ownership interest in REMIC II.
The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey to the Trustee, without recourse
all the right, title and interest of the Depositor in and to the Class X
Interest for the benefit of the Class R-3 Interest and REMIC III (as holder
of
the Class X Interest). The Trustee acknowledges receipt of the Class X Interest
and declares that it holds and will hold the same in trust for the exclusive
use
and benefit of all present and future Holders of the Class R-3 Interest and
REMIC III (as holder of the Class X Interest). The rights of the Holder of
the
Class R-3 Interest and REMIC III (as holder of the Class X Interest) to receive
distributions from the proceeds of REMIC III in respect of the Class R-3
Interest, the Class X Certificates, and all ownership interests evidenced or
constituted by the Class R-3 Interest and the Class X Certificates, shall be
as
set forth in this Agreement. The Class R-3 Interest and the Class X Certificates
shall constitute the entire beneficial ownership interest in REMIC
III.
The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey to the Trustee, without recourse
all the right, title and interest of the Depositor in and to the Class P
Interest for the benefit of the Class R-4 Interest and REMIC IV (as holder
of
the Class P Interest). The Trustee acknowledges receipt of the Class P Interest
and declares that it holds and will hold the same in trust for the exclusive
use
and benefit of all present and future Holders of the Class R-4 Interest and
REMIC IV (as holder of the Class P Interest). The rights of the Holder of the
Class R-4 Interest and REMIC IV (as holder of the Class P Interest) to receive
distributions from the proceeds of REMIC IV in respect of the Class R-4
Interest, the Class P Certificates, and all ownership interests evidenced or
constituted by the Class R-4 Interest and the Class P Certificates, shall be
as
set forth in this Agreement. The Class R-4 Interest and the Class P Certificates
shall constitute the entire beneficial ownership interest in REMIC
IV.
The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey to the Trustee, without recourse
all the right, title and interest of the Depositor in and to the Class IO
Interest for the benefit of the Class R-5 Interest and REMIC V (as holder of
the
Class IO Interest). The Trustee acknowledges receipt of the Class IO Interest
and declares that it holds and will hold the same in trust for the exclusive
use
and benefit of all present and future Holders of the Class R-5 Interest and
REMIC V (as holder of the Class IO Interest). The rights of the Holder of the
Class R-5 Interest and REMIC V (as holder of the Class IO Interest) to receive
distributions from the proceeds of REMIC V in respect of the Class R-5 Interest,
the Class IO Certificates, and all ownership interests evidenced or constituted
by the Class R-5 Interest and the Class IO Certificates, shall be as set forth
in this Agreement. The Class R-5 Interest and the Class IO Certificates shall
constitute the entire beneficial ownership interest in REMIC V.
Section
2.08 Issuance
of the Class R Certificates and the Class R-X Certificates.
The
Trustee acknowledges the assignment to it of the REMIC I Regular Interests
and,
concurrently therewith and in exchange therefor, pursuant to the written request
of the Depositor executed by an officer of the Depositor, the Securities
Administrator has executed, authenticated and delivered to or upon the order
of
the Depositor, the Class R Certificates in authorized denominations.
The
Trustee acknowledged the assignment to it of the Class X Interest, the Class
P
Interest and the Class IO Interest and, concurrently therewith and in exchange
therefor, pursuant to the written request of the Depositor executed by an
officer of the Depositor, the Securities Administrator has executed,
authenticated and delivered to or upon the order of the Depositor, the Class
R-X
Certificates in authorized denominations.
Section
2.09 Establishment
of Trust.
The
Depositor does hereby establish, pursuant to the further provisions of this
Agreement and the laws of the State of New York, an express trust to be known,
for convenience, as “Nomura Asset Acceptance Corporation, Alternative Loan
Trust, Series 2006-WF1” and does hereby appoint HSBC Bank USA, National
Association, as Trustee in accordance with the provisions of this
Agreement.
Section
2.10 Purpose
and Powers of the Trust.
The
purpose of the common law trust, as created hereunder, is to engage in the
following activities:
(a) acquire
and hold the Mortgage Loans and the other assets of the Trust Fund and the
proceeds therefrom;
(b) to
issue
the Certificates sold to the Depositor in exchange for the Mortgage
Loans;
(c) to
make
payments on the Certificates;
(d) to
engage
in those activities that are necessary, suitable or convenient to accomplish
the
foregoing or are incidental thereto or connected therewith; and
(e) subject
to compliance with this Agreement, to engage in such other activities as may
be
required in connection with conservation of the Trust Fund and the making of
distributions to the Certificateholders.
The
trust
is hereby authorized to engage in the foregoing activities. The Trustee shall
not cause the trust to engage in any activity other than in connection with
the
foregoing or other than as required or authorized by the terms of this Agreement
while any Certificate is outstanding, and this Section 2.10 may not be amended,
without the consent of the Certificateholders evidencing 51% or more of the
aggregate voting rights of the Certificates.
ARTICLE
III
ADMINISTRATION
OF THE MORTGAGE LOANS; ACCOUNTS
Section
3.01 Reserved.
Section
3.02 Reserved.
Section
3.03 Reserved.
Section
3.04 Reserved.
Section
3.05 Reserved.
Section
3.06 Reserved.
Section
3.07 Reserved.
Section
3.08 Reserved.
Section
3.09 Reserved.
Section
3.10 Reserved.
Section
3.11 Reserved.
Section
3.12 Reserved.
Section
3.13 Annual
Statement as to Compliance.
(a) The
Master Servicer and the Securities Administrator shall deliver or otherwise
make
available (and shall cause each Servicing Function Participant engaged by it
to
deliver) to the Depositor and the Securities Administrator and in the case
of
the Master Servicer, to the Trustee on or before March 15 of each year,
commencing in March 2007, an Officer’s Certificate stating, as to the signer
thereof, that (A) a review of such party’s activities during the preceding
calendar year or portion thereof and of such party’s performance under this
Agreement, or such other applicable agreement in the case of a Servicing
Function Participant, has been made under such officer’s supervision and (B) to
the best of such officer’s knowledge, based on such review, such party has
fulfilled all its obligations under this Agreement, or such other applicable
agreement in the case of a Servicing Function Participant (other than the Master
Servicer or the Securities Administrator), in all material respects throughout
such year or portion thereof, or, if there has been a failure to fulfill any
such obligation in any material respect, specifying each such failure known
to
such officer and the nature and status thereof.
The
Master Servicer shall enforce the obligation of the Servicer as set forth in
the
Servicing Agreement to deliver to the Master Servicer an annual statement of
compliance within the time frame set forth in, and in such form and substance
as
may be required pursuant to, the Servicing Agreement The Master Servicer shall
include such annual statement of compliance with its own annual statement of
compliance to be submitted to the Securities Administrator pursuant to this
Section. For so long as the Trust Fund is subject to Exchange Act reporting
requirements, failure of the Servicer to timely deliver an annual statement
of
compliance pursuant to the Servicing Agreement shall be deemed a Servicer
Default under the Servicing Agreement, automatically, without notice and without
any cure period, and the Master Servicer shall notify the Trustee and the
Trustee may, in addition to whatever rights the Trustee may have under this
Agreement, the Servicing Agreement and at law or in equity or to damages,
including injunctive relief and specific performance, terminate all the rights
and obligations of the Servicer under the Servicing Agreement and in and to
the
Mortgage Loans and the proceeds thereof without compensating the Servicer for
the same. The Trustee shall so terminate the Servicer by delivery of notice
thereof via first class mail, facsimile or electronic mail. After the Trust
Fund
ceases to be subject to Exchange Act reporting requirements, failure of the
Servicer to perform deliver an annual statement of compliance on or before
March
31 of each such year shall be deemed a Servicer Default under the Servicing
Agreement. The Master Servicer shall notify the Trustee and the Trustee may
terminate the Servicer by delivery of notice thereof via first class mail,
facsimile or electronic mail.
(b) (i)For
so
long as the Trust Fund is subject to Exchange Act reporting requirements,
failure of the Master Servicer to comply timely with this Section 3.13 shall
be
deemed a Master Servicer Default, without any cure period, and the Trustee
may,
in addition to whatever rights the Trustee may have under this Agreement and
at
law or in equity or to damages, including injunctive relief and specific
performance, terminate all the rights and obligations of the Master Servicer
under this Agreement and in and to the Mortgage Loans and the proceeds thereof
without compensating the Master Servicer for the same. The Trustee shall so
terminate the Master Servicer by delivery of notice thereof via first class
mail, facsimile or electronic mail. This paragraph shall supersede any other
provision in this Agreement or any other agreement to the contrary.
(ii) After
the
Trust Fund ceases to be subject to Exchange Act reporting requirements, failure
of the Master Servicer to duly perform its obligations under this Section 3.13
on or before March 31 of each such year shall be deemed a Master Servicer
Default as provided for in Section 8.01(a)(x). The Trustee may terminate the
Master Servicer by delivery of notice thereof via first class mail, facsimile
or
electronic mail.
(c) The
Master Servicer shall include all annual statements of compliance received
by it
from the Servicer with its own annual statement of compliance to be submitted
to
the Securities Administrator pursuant to this Section 3.13.
(d) Copies
of
any Master Servicer annual statements of compliance required to be delivered
hereunder shall be provided to any Certificateholder upon request at the Master
Servicer’s expense.
(e) In
the
event the Servicer, the Master Servicer, the Securities Administrator or any
Servicing Function Participant is terminated or resigns pursuant to the terms
of
this Agreement or the Servicing Agreement, or any applicable agreement in the
case of such Servicing Function Participant, as the case may be, such party
shall provide or cause such Servicing Function Participant to provide an
Officer’s Certificate pursuant to this Section 3.13 or pursuant to the Servicing
Agreement with respect to the period of time it was subject to this Agreement,
the Servicing Agreement or any other applicable agreement, as the case may
be
notwithstanding any such termination, assignment or resignation.
Section
3.14 Assessments
of Compliance and Attestation Reports.
(a) By
March
15 of
each
year, commencing in March 2007,
the
Master Servicer and the Securities Administrator, each at its own expense and
pursuant to Item 1122(a) of Regulation AB, shall furnish or otherwise make
available, and shall cause any Servicing Function Participant engaged by it
to
furnish, which in each case shall not be an expense of the Trust Fund, to the
Securities Administrator and the Depositor, a report on an assessment of
compliance with the Relevant Servicing Criteria that contains (A) a statement
by
such party of its responsibility for assessing compliance with the Relevant
Servicing Criteria, (B) a statement that such party used the Relevant Servicing
Criteria to assess compliance with the Relevant Servicing Criteria, (C) such
party’s assessment of compliance with the Relevant Servicing Criteria for the
period consisting of the prior calendar year, including, if there has been
any
material instance of noncompliance with the Relevant Servicing Criteria, a
discussion of each such failure and the nature and status thereof, and (D)
a
statement that a registered public accounting firm has issued an attestation
report on such party’s assessment of compliance with the Relevant Servicing
Criteria for the period consisting of the prior calendar year.
(b) No
later
than February 1 of each year, commencing in February 2007, the Master Servicer
shall forward to the Securities Administrator and the Depositor the name of
each
Servicing Function Participant engaged by it and what Relevant Servicing
Criteria will be addressed in the report on assessment of compliance prepared
by
such Servicing Function Participant; provided, however, that the Master Servicer
need not provide such information to the Securities Administrator so long as
the
Master Servicer and the Securities Administrator are the same entity. When
the
Master Servicer (or any Servicing Function Participant engaged by them) submits
its assessments to the Securities Administrator, such party will also at such
time include the assessment (and attestation pursuant to paragraph (c) below)
of
each Servicing Function Participant engaged by it.
Promptly
after receipt of each such report on assessment of compliance pursuant to this
Agreement and the Servicing Agreement, (i) the Depositor shall review each
such
report and, if applicable, consult with the Servicer, the Master Servicer,
the
Securities Administrator and any Servicing Function Participant engaged by
such
parties as to the nature of any material instance of noncompliance with the
Relevant Servicing Criteria by each such party, and (ii) the Securities
Administrator shall confirm that the assessments, taken as a whole, address
all
of the Servicing Criteria and taken individually address the Relevant Servicing
Criteria for each party as set forth on Exhibit L and on any similar exhibit
set
forth in the Servicing Agreement in respect of the Servicer and notify the
Depositor of any exceptions.
In
the
event the Master Servicer, Securities Administrator or any Servicing Function
Participant is terminated, assigns its rights and obligations under or resigns
pursuant to the terms of this Agreement, or any other applicable agreement,
as
the case may be, such party shall provide, or cause a Servicing Function
Participant engaged by it to provide, a report on assessment of compliance
pursuant to this Section 3.14 with respect to the period of time it was subject
to this Agreement or any other applicable agreement, as the case may be,
notwithstanding any such termination, assignment or resignation.
The
Master Servicer shall include all annual reports on assessment of compliance
received by it from each Servicer with its own assessment of compliance to
be
submitted to the Securities Administrator pursuant to this Section.
(c) By
March
15 of each year, commencing in March 2007, the Master Servicer and the
Securities Administrator, each at its own expense, shall cause, and shall cause
any Servicing Function Participant engaged by such party to cause, which in
each
case shall not be an expense of the trust, a registered public accounting firm
(which may also render other services to such Servicing Function Participants)
and that is a member of the American Institute of Certified Public Accountants
to furnish an attestation report to the Master Servicer and Securities
Administrator to the effect that (i) it has obtained a representation regarding
certain matters from the management of such party, which includes an assertion
that such party has complied with the Relevant Servicing Criteria, and (ii)
on
the basis of an examination conducted by such firm in accordance with standards
for attestation engagements issued or adopted by the PCAOB, it is expressing
an
opinion as to whether such party’s compliance with the Relevant Servicing
Criteria was fairly stated in all material respects, or it cannot express an
overall opinion regarding such party’s assessment of compliance with the
Relevant Servicing Criteria. In the event that an overall opinion cannot be
expressed, such registered public accounting firm shall state in such report
why
it was unable to express such an opinion. Such report must be available for
general use and not contain restricted use language.
Promptly
after receipt of each such report on assessment of compliance and attestation
report from a Servicing Function Participant, the Securities Administrator
shall
confirm that each assessment submitted pursuant to paragraph (a) above is
coupled with an attestation meeting the requirements of this Section and notify
the Depositor of any exceptions.
In
the
event the Master Servicer, Securities Administrator or any Servicing Function
Participant is terminated, assigns its rights and obligations under or resigns
pursuant to the terms of this Agreement, or any other applicable agreement,
as
the case may be, such party shall cause a registered public accounting firm
to
provide an attestation pursuant to this Section 3.14 or such other agreement
with respect to the period of time it was subject to this Agreement or such
other agreement, as the case may be, notwithstanding any such termination,
assignment or resignation.
Section
3.15 Reserved.
Section
3.16 The
Trustee.
The
Trustee shall furnish the Servicer with any powers of attorney and other
documents prepared and submitted by the Servicer to the Trustee in a form as
mutually agreed upon and necessary or appropriate to enable the Servicer to
service and administer the Mortgage Loans and REO Properties.
The
Trustee shall provide access to the records and documentation in possession
of
the Trustee regarding the related Mortgage Loans and REO Property and the
servicing thereof to the Certificateholders, the FDIC, and the supervisory
agents and examiners of the FDIC, such access being afforded only upon
reasonable prior written request and during normal business hours at the office
of the Trustee; provided, however, that, unless otherwise required by law,
the
Trustee shall not be required to provide access to such records and
documentation if the provision thereof would violate the legal right to privacy
of any Mortgagor. The Trustee shall allow representatives of the above entities
to photocopy any of the records and documentation and shall provide equipment
for that purpose at a charge that covers the Trustee’s actual
costs.
The
Trustee shall execute and deliver as directed in writing by the Servicer any
court pleadings, requests for trustee’s sale or other documents necessary or
desirable to (i) the foreclosure or trustee’s sale with respect to a Mortgaged
Property; (ii) any legal action brought to obtain judgment against any Mortgagor
on the Mortgage Note; (iii) obtain a deficiency judgment against the Mortgagor;
or (iv) enforce any other rights or remedies provided by the Mortgage Note or
otherwise available at law or equity.
Section
3.17 REMIC-Related
Covenants.
For
as
long as each REMIC shall exist, the Trustee and the Securities Administrator
shall act in accordance herewith to treat each REMIC as a REMIC, and the Trustee
and the Securities Administrator shall comply with any directions of the
Sponsor, the Servicer or the Master Servicer with respect to such treatment.
In
particular, the Trustee shall not (a) knowingly sell or permit the sale of
all
or any portion of the Mortgage Loans or of any investment of deposits in an
Account unless such sale is as a result of a repurchase of the Mortgage Loans
pursuant to this Agreement or the Trustee has received a REMIC Opinion prepared
at the expense of the Trust Fund; and (b) other than with respect to a
substitution pursuant to the Mortgage Loan Purchase Agreement or
Section 2.04 of this Agreement, as applicable, accept any contribution to
any REMIC after the Startup Day without receipt of a REMIC Opinion.
Section
3.18 Annual
Xxxxxxxx-Xxxxx Certification; Additional Information.
The
Master Servicer and the Securities Administrator shall and shall cause any
Servicing Function Participant engaged by such party to, provide to the
Certifying Person, by March 15 of each year in which the Trust Fund is subject
to the reporting requirements of the Exchange Act and otherwise within a
reasonable period of time upon request, a certification (each, a “Back-Up
Certification”),
in
the form attached hereto as Exhibit
M,
upon
which the Certifying Person, the entity for which the Certifying Person acts
as
an officer, and such entity’s officers, directors and Affiliates (collectively
with the Certifying Person, “Certification
Parties”)
can
reasonably rely. The senior officer of the Master Servicer in charge of the
master servicing function shall prepare a Xxxxxxxx-Xxxxx Certification and
sign
the same on behalf of the Trust Fund serving as the “Certifying Person”. Such
officer of the Certifying Person can be contacted by e-mail at xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx
or by
facsimile at (000) 000-0000. In the event the Servicer, the Master Servicer
or
the Securities Administrator, or any Servicing Function Participant engaged
by
such party, is terminated or resigns pursuant to the terms of this Agreement,
or
any other applicable agreement, as the case may be, such party shall provide
a
Back-Up Certification to the Certifying Person pursuant to this Section 3.18
with respect to the period of time it was subject to this Agreement or any
other
applicable agreement, as the case may be.
Notwithstanding
the foregoing, (i) the Master Servicer and the Securities Administrator shall
not be required to deliver a Back-Up Certification to each other if each is
the
same Person and the Master Servicer is the Certifying Person and (ii) the Master
Servicer shall not be obligated to execute any Xxxxxxxx-Xxxxx Certification
in
the event that it does not receive a Back-Up Certification from any party
required to deliver such Back-Up Certification pursuant to this Section or
the
Custodial Agreement; provided, however, in the event the Master Servicer shall
not be required to execute a Xxxxxxxx-Xxxxx Certification pursuant to clause
(ii), the Master Servicer shall prepare such Xxxxxxxx-Xxxxx Certification and
deliver it to the Depositor for execution.
Section
3.19 Release
of Mortgage Files.
(a) Upon
becoming aware of the payment in full of any Mortgage Loan, or the receipt
by
the Servicer of a notification that payment in full has been escrowed in a
manner customary for such purposes for payment to Certificateholders on the
next
Distribution Date, the Servicer will (or if the Servicer does not, the Master
Servicer may) promptly furnish to the Trustee if required by the Servicing
Agreement and the Custodian, on behalf of the Trustee, two copies of a request
for release substantially in the form attached to the Custodial Agreement signed
by an Authorized Servicer Representative or in a mutually agreeable electronic
format which will, in lieu of a signature on its face, originate from an
Authorized Servicer Representative (which certification shall include a
statement to the effect that all amounts received in connection with such
payment that are required to be deposited in the Custodial Account pursuant
to
the Servicing Agreement have been or will be so deposited) and shall request
that the Custodian, on behalf of the Trustee, deliver to the Servicer the
related Mortgage File. Within five (5) Business Days of receipt of such
certification and request, the Custodian, on behalf of the Trustee, shall
release the related Mortgage File to the Servicer and the Trustee and the
Custodian shall have no further responsibility with regard to such Mortgage
File. Upon any such payment in full, the Servicer is authorized, to give, as
agent for the Trustee, as the mortgagee under the Mortgage that secured the
related Mortgage Loan, an instrument of satisfaction (or assignment of mortgage
without recourse) regarding the Mortgaged Property subject to the Mortgage,
which instrument of satisfaction or assignment, as the case may be, shall be
delivered to the Person or Persons entitled thereto against receipt therefor
of
such payment, it being understood and agreed that no expenses incurred in
connection with such instrument of satisfaction or assignment, as the case
may
be, shall be chargeable to the Custodial Account.
(b) From
time
to time and as appropriate for the servicing or foreclosure of any Mortgage
Loan
and in accordance with this Agreement, the Trustee shall execute such documents
as shall be prepared and furnished to the Trustee by the Servicer (in form
reasonably acceptable to the Trustee) and as are necessary to the prosecution
of
any such proceedings. The Custodian, on behalf of the Trustee, shall, upon
the
written request of the Servicer, and delivery to the Custodian, on behalf of
the
Trustee, of two copies of a request for release signed by an Authorized Servicer
Representative substantially in the form attached to the Custodial Agreement
(or
in a mutually agreeable electronic format which will, in lieu of a signature
on
its face, originate from an Authorized Servicer Representative), release the
related Mortgage File held in its possession or control to the Servicer. Such
request for release shall obligate the Servicer to return the Mortgage File
to
the Custodian on behalf of the Trustee, when the need therefor by such Person
no
longer exists unless the Mortgage Loan shall be liquidated, in which case,
upon
receipt of a certificate of an Authorized Servicer Representative similar to
that hereinabove specified, the Mortgage File shall be released by the
Custodian, on behalf of the Trustee, to the Servicer.
Section
3.20 Reserved.
Section
3.21 Reserved.
Section
3.22 Reserved.
Section
3.23 Reserved.
Section
3.24 Optional
Purchase of Defaulted Mortgage Loans.
With
respect to any Mortgage Loan which is delinquent in payment by ninety-one (91)
days or more or is an REO Property, the Sponsor shall have the right to purchase
such Mortgage Loan or REO Property from the Trust Fund at a price equal to
the
Purchase Price. The Purchase Price shall be remitted to the Servicer for deposit
in the Custodial Account and remitted by the Servicer to the Securities
Administrator on the Servicer Remittance Date in the month immediately following
the month in which the Purchase Price was deposited in the Custodial
Account.
In
addition, the Sponsor shall, at its option, purchase any Mortgage Loan from
the
Trust if the first or second Due Date for such Mortgage Loan is subsequent
to
the Cut-off Date and the first or second Monthly Payment is not made within
thirty (30) days of such Due Date. Such purchase shall only be made if such
Monthly Payments have not been received as of the date of purchase and such
purchase shall be made at a price equal to the Purchase Price.
If
at any
time the Sponsor remits to the Servicer a payment for deposit in the Custodial
Account covering the amount of the Purchase Price for such a Mortgage Loan
and
the Servicer delivers an Officer’s Certificate to the Trustee certifying that
the Purchase Price has been deposited in the Custodial Account (which shall
be
delivered no more than two Business Days following such deposit), the Trustee
shall execute the assignment of such Mortgage Loan at the request of the Sponsor
without recourse to the Sponsor which shall succeed to all the Trustee’s, right,
title and interest in and to such Mortgage Loan, and all security and documents
relative thereto. Such assignment shall be an assignment outright and not for
security. The Sponsor will thereupon own such Mortgage, and all such security
and documents, free of any further obligation to the Trustee or the
Certificateholders with respect thereto. The Sponsor shall be responsible for
any transfer costs incurred with respect to a Mortgage Loan purchased pursuant
to this Section 3.24.
If
the
Sponsor is required to repurchase a Mortgage Loan pursuant to this Section
3.24,
the Servicer shall continue to service such Mortgage Loan unless the Sponsor
shall repurchase the servicing rights thereon on terms mutually agreed to by
the
Sponsor and the Servicer. Notwithstanding the foregoing, the Master Servicer
shall have no obligation to master service any Mortgage Loan that has been
so
repurchased.
Section
3.25 Obligations
of the Servicer Under Credit Risk Management Agreement.
Notwithstanding
anything in this Agreement or the Credit Risk Management Agreements to the
contrary, the Trustee shall not have any duty or obligation to enforce any
Credit Risk Management Agreement or to supervise, monitor or oversee the
activities of the Credit Risk Manager or the Servicer under the Credit Risk
Management Agreements or this Agreement with respect to any action taken or
not
taken by the Servicer pursuant to a recommendation of the Credit Risk Manager
or
otherwise in connection with obligations of the Servicer under the related
Credit Risk Management Agreement.
Section
3.26 Reserved.
Section
3.27 Reserved.
Section
3.28 Reserved.
Section
3.29 Reserved.
Section
3.30 Reserved.
Section
3.31 Distribution
Account.
(a) The
Securities Administrator shall establish and maintain for the benefit of the
Certificateholders a Distribution Account as a segregated non-interest bearing
trust account or accounts. The Securities Administrator will deposit in the
Distribution Account as identified by the Securities Administrator and as
received by the Securities Administrator, the following amounts:
(i) All
payments and recoveries in respect of principal on the Mortgage Loans,
including, without limitation, Principal Prepayments, Subsequent Recoveries,
Liquidation Proceeds, Insurance Proceeds, condemnation proceeds, all payments
of
claims under the PMI Policy and all payments and recoveries in respect of
interest on the related Mortgage Loans withdrawn by the Servicer from the
Custodial Account and remitted by Servicer to the Securities
Administrator;
(ii) Any
Advance and any Compensating Interest Payments;
(iii) Any
Prepayment Charges collected by the Servicer in connection with the Principal
Prepayment of any of the Mortgage Loans (including any Servicer Prepayment
Charge Payment Amounts);
(iv) Any
Insurance Proceeds or Liquidation Proceeds received by or on behalf of the
Securities Administrator or which were not deposited in the Custodial
Account;
(v) The
Purchase Price with respect to any related Mortgage Loans purchased by the
Sponsor or Section 2.02 or 2.03, any amounts which are to be treated
pursuant to Section 2.04 of this Agreement as the payment of such a
Purchase Price, the Purchase Price with respect to any related Mortgage Loans
purchased by the Sponsor pursuant to Section 3.24, and all proceeds of any
related Mortgage Loans or property acquired with respect thereto repurchased
by
the Master Servicer pursuant to Section 10.01;
(vi) Any
amounts required to be deposited with respect to losses on investments of
deposits in an Account; and
(vii) Any
other
amounts received by or on behalf of the Securities Administrator and required
to
be deposited in the Distribution Account pursuant to this
Agreement.
(b) All
amounts deposited to the Distribution Account shall be held by the Securities
Administrator in the name of the Trustee in trust for the benefit of the related
Certificateholders in accordance with the terms and provisions of this
Agreement. The requirements for crediting the Distribution Account shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments in the nature of late payment charges or assumption,
tax service, statement account or payoff, substitution, satisfaction, release
and other like fees and charges, need not be credited by the Securities
Administrator to the Distribution Account.
(c) The
amount at any time credited to the Distribution Account may be invested by
the
Securities Administrator in Permitted Investments that mature no later than
the
Business Day prior to the next succeeding Distribution Date as directed by
the
Master Servicer, unless the investment is managed by the Securities
Administrator or an affiliate of the Securities Administrator, in which case
such Permitted Investments may mature on the Distribution Date. All such
investment income shall be for the benefit of the Master Servicer, and any
losses incurred shall be deposited by the Master Servicer in the Distribution
Account immediately as realized.
Section
3.32 Permitted
Withdrawals and Transfers from the Distribution Account.
(a) The
Securities Administrator will from time to time make or cause to be made such
withdrawals or transfers from the Distribution Account pursuant to this
Agreement for the following purposes:
(i) to
pay to
the Trustee any expenses recoverable by the Trustee pursuant to this
Agreement.
(ii) to
reimburse the Master Servicer as Successor Servicer or the Servicer for any
Advance or Servicing Advance of its own funds, the right of the Master Servicer
as Successor Servicer or the Servicer to reimbursement pursuant to this
subclause (ii) being limited to amounts received on a particular Mortgage Loan
(including, for this purpose, the Purchase Price therefor, Insurance Proceeds,
Liquidation Proceeds and condemnation proceeds) which represent late payments
or
recoveries of the principal of or interest on such Mortgage Loan respecting
which such Advance or Servicing Advance was made;
(iii) to
reimburse the Master Servicer or the Servicer from Insurance Proceeds or
Liquidation Proceeds relating to a particular Mortgage Loan for amounts expended
by the Master Servicer as Successor Servicer or the Servicer in good faith
in
connection with the restoration of the related Mortgaged Property which was
damaged by an uninsured cause or in connection with the liquidation of such
Mortgage Loan;
(iv) to
reimburse the Master Servicer as Successor Servicer or the Servicer from
Insurance Proceeds relating to a particular Mortgage Loan for insured expenses
incurred with respect to such Mortgage Loan and to reimburse the Master Servicer
as Successor Servicer or the Servicer from Liquidation Proceeds from a
particular Mortgage Loan for Liquidation Expenses incurred with respect to
such
Mortgage Loan;
(v) to
reimburse the Master Servicer as Successor Servicer or the Servicer for advances
of funds pursuant to this Agreement, and the right to reimbursement pursuant
to
this subclause being limited to amounts received on the related Mortgage Loan
(including, for this purpose, the Purchase Price therefor, Insurance Proceeds,
Liquidation Proceeds and condemnation proceeds) which represent late recoveries
of the payments for which such advances were made;
(vi) to
reimburse the Master Servicer as Successor Servicer or the Servicer for any
Advance or advance, after a Realized Loss has been allocated with respect to
the
related Mortgage Loan if the Advance or advance has not been reimbursed pursuant
to clauses (ii) and (v);
(vii) to
pay
the PMI Insurer Fee to the PMI Insurer and to pay the Credit Risk Management
Fee
to the Credit Risk Manager; provided, however, that upon the termination of
the
Credit Risk Manager pursuant to Section 3.33 hereof, the amount of the
Credit Risk Management Fee (or any portion thereof) previously payable to the
Credit Risk Manager as described herein shall be paid to the
Sponsor;
(viii) to
reimburse the Trustee or the Securities Administrator for expenses, costs and
liabilities incurred by and reimbursable to it pursuant to this Agreement
(including the expenses of the Securities Administrator in connection with
a tax
audit in connection with the performance of its obligations pursuant to
Section 9.13);
(ix) to
pay to
the Trust Fund, as additional servicing compensation, any Excess Liquidation
Proceeds to the extent not retained by the Servicer;
(x) to
reimburse or pay the Servicer any such amounts as are due thereto under this
Agreement and have not been retained by or paid to the Servicer, to the extent
provided herein or therein;
(xi) to
reimburse the Trustee for expenses incurred in the transfer of servicing
responsibilities of the terminated Servicer after the occurrence and continuance
of a Servicer Default to the extent not paid by the terminated
Servicer;
(xii) to
reimburse the Master Servicer for any costs and expenses reimbursable to the
Master Servicer pursuant to this Agreement;
(xiii) to
reimburse the Custodian for expenses, costs and liabilities incurred or
reimbursable to it pursuant to this Agreement or the Custodial
Agreement;
(xiv) to
remove
amounts deposited in error; and
(xv) to
clear
and terminate the Distribution Account pursuant to
Section 10.01.
(b) The
Securities Administrator shall keep and maintain separate accounting, on a
Mortgage Loan by Mortgage Loan basis, for the purpose of accounting for any
reimbursement from the Distribution Account pursuant to subclauses (ii) through
(v), inclusive, and (vii) or with respect to any such amounts which would have
been covered by such subclauses had the amounts not been retained by the
Securities Administrator without being deposited in the Distribution Account
under Section 3.31.
(c) On
each
Distribution Date, the Securities Administrator shall distribute the Available
Distribution Amount, to the extent of funds on deposit in the Distribution
Account after taking into account permitted withdrawals therefrom pursuant
to
clause (a) above, to the holders of the Certificates in accordance with
Section 5.04.
Section
3.33 Duties
of the Credit Risk Manager; Termination.
(a) The
Depositor appoints Portfolio Surveillance Analytics, LLC, a wholly owned
subsidiary of InformationLogix, Inc. as Credit Risk Manager. For and on behalf
of the Depositor, the Credit Risk Manager will provide reports and
recommendations concerning the Mortgage Loans that are past due, as to which
there has been commencement of foreclosure, as to which there has been
forbearance in exercise of remedies which are in default, as to which a
Mortgagor is the subject of bankruptcy, receivership, or an arrangement of
creditors, or as to which have become REO Properties. Such reports and
recommendations will be based upon information provided to the Credit Risk
Manager pursuant to the related Credit Risk Management Agreement and the Credit
Risk Manager shall look solely to the Servicer and/or Master Servicer for all
information and data (including loss and delinquency information and data)
and
loan level information and data relating to the servicing of the related
Mortgage Loans. If the Credit Risk Manager is no longer able to perform its
duties hereunder, the Credit Risk Manager may be terminated by the Depositor
at
the direction of Certificateholders evidencing not less than 66 2/3% of the
Voting Rights. The Depositor may, at its option, cause the appointment of a
successor Credit Risk Manager. Upon any termination of the Credit Risk Manager
or the appointment of a successor Credit Risk Manager, the Depositor shall
give
written notice thereof to the Servicer, the Trustee, each Rating Agency and
the
Credit Risk Manager. Notwithstanding the foregoing, the termination of the
Credit Risk Manager pursuant to Section 3.33(b) shall not become effective
until the appointment of a successor Credit Risk Manager. The Trustee is hereby
authorized to enter into any Credit Risk Management Agreement necessary to
effect the foregoing.
(b) Within
six months of the Closing Date, the Sponsor may, at its option, terminate the
Credit Risk Manager if, in its reasonable judgment, (i) the value of the
servicing rights with respect to the Mortgage Loans is adversely affected as
a
result of the presence of the Credit Risk Manager or (ii) the presence of the
Credit Risk Manager impairs the ability of the Sponsor to transfer the servicing
rights with respect to the Mortgage Loans as permitted by this Agreement. Upon
the termination of the Credit Risk Manager, the Sponsor may, at its option,
cause the Depositor to appoint a successor Credit Risk Manager. Notice of such
termination shall be provided by the Sponsor to the Rating Agencies, the
Trustee, the Securities Administrator, the Depositor, the Servicer and the
Credit Risk Manager. Upon the appointment of a successor Credit Risk Manager,
the Depositor shall provide written notice thereof to each Rating Agency, the
Trustee, the Servicer, the Securities Administrator and the Credit Risk
Manager.
If
the
Credit Risk Manager is terminated pursuant to this Section 3.33(b), the
Credit Risk Manager shall only be entitled to a fee equal to 0.0050% with
respect to each Mortgage Loan for the one year period following such
termination. After the expiration of such one year period, the Credit Risk
Manager shall not be entitled to the Credit Risk Management Fee or any portion
thereof with respect to any Mortgage Loan. The excess of the Credit Risk
Management Fee with respect to each Mortgage Loan over the amount payable to
the
Credit Risk Manager as described in this paragraph shall be paid to the Sponsor
pursuant to Section 5.04(a).
Section
3.34 Limitation
Upon Liability of the Credit Risk Manager.
Neither
the Credit Risk Manager, nor any of the directors, officers, employees or agents
of the Credit Risk Manager, shall be under any liability to the Servicer, the
Master Servicer, the Securities Administrator, the Trustee, the
Certificateholders or the Depositor for any action taken or for refraining
from
the taking of any action in good faith pursuant to this Agreement, in reliance
upon information provided by the Servicer and/or Master Servicer under the
related Credit Risk Management Agreement or of errors in judgment; provided,
however, that this provision shall not protect the Credit Risk Manager or any
such person against liability that would otherwise be imposed by reason of
willful malfeasance, bad faith or gross negligence in its performance of its
duties under this Agreement or the applicable Credit Risk Management Agreement.
The Credit Risk Manager and any director, officer, employee or agent of the
Credit Risk Manager may rely in good faith on any document of any kind prima
facie properly executed and submitted by any Person respecting any matters
arising hereunder, and may rely in good faith upon the accuracy of information
furnished by the Servicer and/or Master Servicer pursuant to the related Credit
Risk Management Agreement in the performance of its duties thereunder and
hereunder.
ARTICLE
IV
ADMINISTRATION
AND MASTER SERVICING OF THE MORTGAGE LOANS
Section
4.01 The
Master Servicer.
The
Master Servicer shall supervise, monitor and oversee the obligation of the
Servicer to
service and administer the Mortgage Loans in accordance with the terms of the
Servicing Agreement and shall have full power and authority to do any and all
things which it may deem necessary or desirable in connection with such master
servicing and administration. In performing its obligations hereunder, the
Master Servicer shall act in a manner consistent with Accepted Master Servicing
Practices. Furthermore, the Master Servicer shall oversee and consult with
the
Servicer as necessary from time-to-time to carry out the Master Servicer’s
obligations hereunder, shall receive, review and evaluate all reports,
information and other data provided to the Master Servicer by the Servicer
and
shall cause the Servicer to perform and observe the covenants, obligations
and
conditions to be performed or observed by the Servicer under the Servicing
Agreement. The Master Servicer shall independently and separately monitor the
servicing activities of the Servicer with respect to each Mortgage Loan,
reconcile the results of such monitoring with such information provided in
the
previous sentence on a monthly basis and coordinate corrective adjustments
to
the Servicer’s and Master Servicer’s records, and based on such reconciled and
corrected information, provide such information relating to the Mortgage Loans
to the Securities Administrator as shall be necessary to enable it to prepare
the statements specified in Section 5.06 and any other information and
statements required to be provided by the Securities Administrator hereunder.
The Master Servicer shall reconcile the results of its Mortgage Loan monitoring
with the actual remittances of the Servicer to the Distribution
Account.
Notwithstanding
anything in this Agreement to the contrary, the Master Servicer shall not have
any duty or obligation to enforce any Credit Risk Management Agreement that
the
Servicer is a party to (the “Servicer Credit Risk Management Agreement”) or to
supervise, monitor or oversee the activities of the Credit Risk Manager under
the Servicer Credit Risk Management Agreement with respect to any action taken
or not taken by the Servicer pursuant to a recommendation of the Credit Risk
Manager.
The
Trustee shall furnish the Servicer and the Master Servicer with any limited
powers of attorney and other documents in form acceptable to the Trustee
necessary or appropriate to enable the Servicer and the Master Servicer to
service or master service and administer the Mortgage Loans and REO Property.
The Trustee shall have no responsibility for any action of the Master Servicer
or the Servicer pursuant to any such limited power of attorney and shall be
indemnified by the Master Servicer or the Servicer for any cost, liability
or
expense arising from the misuse thereof by the Master Servicer or the
Servicer.
The
Trustee, the Custodian and the Securities Administrator shall provide access
to
the records and documentation in possession of the Trustee, the Custodian or
the
Securities Administrator regarding the Mortgage Loans and REO Property and
the
servicing thereof to the Certificateholders, the FDIC, and the supervisory
agents and examiners of the FDIC, such access being afforded only upon
reasonable prior written request and during normal business hours at the office
of the Trustee, the Custodian or the Securities Administrator; provided,
however, that, unless otherwise required by law, none of the Trustee, the
Custodian or the Securities Administrator shall be required to provide access
to
such records and documentation if the provision thereof would violate the legal
right to privacy of any Mortgagor. The Trustee, the Custodian and the Securities
Administrator shall allow representatives of the above entities to photocopy
any
of the records and documentation and shall provide equipment for that purpose
at
a charge that covers the Trustee’s, the Custodian’s or the Securities
Administrator’s actual costs.
The
Trustee shall execute and deliver to the Servicer or the Master Servicer upon
request any court pleadings, requests for trustee’s sale or other documents
necessary or desirable and, in each case, provided to the Trustee by the
Servicer or the Master Servicer to (i) the foreclosure or trustee’s sale with
respect to a Mortgaged Property; (ii) any legal action brought to obtain
judgment against any Mortgagor on the Mortgage Note or any other Loan Document;
(iii) obtain a deficiency judgment against the Mortgagor; or (iv) enforce any
other rights or remedies provided by the Mortgage Note or any other Mortgage
Loan Document or otherwise available at law or equity.
Section
4.02 Monitoring
of Servicer.
The
Master Servicer shall be responsible for monitoring the compliance by the
Servicer with its duties under the Servicing Agreement. In the review of the
Servicer’s activities, the Master Servicer may rely upon an officer’s
certificate of the Servicer with regard to the Servicer’s compliance with the
terms of the Servicing Agreement. In the event that the Master Servicer, in
its
judgment, determines that the Servicer should be terminated in accordance with
the Servicing Agreement, or that a notice should be sent pursuant to the
Servicing Agreement with respect to the occurrence of an event that, unless
cured, would constitute grounds for such termination, the Master Servicer shall
notify the Sponsor and the Trustee thereof and the Master Servicer shall issue
such notice or take such other action as it deems appropriate.
The
Master Servicer, for the benefit of the Trustee and the Certificateholders,
shall enforce the obligations of the Servicer under the Servicing Agreement,
and
shall, in the event that the Servicer fails to perform its obligations in
accordance with the Servicing Agreement, subject to this Section and
Article VIII, shall notify the Trustee and the Trustee shall terminate the
rights and obligations of the Servicer under the Servicing Agreement in
accordance with the provisions of Article VIII. The Trustee shall act as
servicer of the Mortgage Loans or enter in to a new servicing agreement with
a
successor servicer selected by the Trustee with the consent of the Master
Servicer (such consent not to be unreasonably withheld); provided, however,
it
is understood and acknowledged by the parties hereto that there will be a period
of transition (not to exceed 90 days) before the actual servicing functions
can
be fully transferred to the Trustee or such successor servicer. Such
enforcement, including, without limitation, the legal prosecution of claims
and
the pursuit of other appropriate remedies, shall be in such form and carried
out
to such an extent and at such time as the Trustee, in its good faith business
judgment, would require were it the owner of the Mortgage Loans. The Trustee
shall pay the costs of such enforcement, provided that no provision of this
Agreement shall require the Trustee, to expend or risk its own funds or
otherwise incur any financial liability in the performance or any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to
it.
To
the
extent that the costs and expenses related to the termination of the Servicer,
appointment of a Successor Servicer or the transfer and assumption of servicing
by the Trustee as Successor Servicer (including, without limitation, (i) all
legal costs and expenses and all due diligence costs and expenses associated
with an evaluation of the potential termination of the Servicer as a result
of
an event of default by the Servicer and (ii) all costs and expenses associated
with the complete transfer of servicing, including all servicing files and
all
servicing data and the completion, correction or manipulation of such servicing
data as may be required by the Successor Servicer to correct any errors or
insufficiencies in the servicing data or otherwise to enable the Successor
Servicer to service the Mortgage Loans in accordance with the Servicing
Agreement) are not fully and timely reimbursed by the terminated Servicer,
the
Trustee shall be entitled to reimbursement of such costs and expenses from
the
Distribution Account.
The
Master Servicer shall require the Servicer to comply with the remittance
requirements and other obligations set forth in the Servicing
Agreement.
If
the
Trustee acts as Successor Servicer, it shall not assume liability for the
representations and warranties of the Servicer, if any, that it
replaces.
Section
4.03 Fidelity
Bond.
The
Master Servicer, at its expense, shall maintain in effect a blanket fidelity
bond and an errors and omissions insurance policy that shall be in such form
and
amount generally acceptable for entities serving as master servicers or
trustees, affording coverage with respect to all directors, officers, employees
and other Persons acting on such Master Servicer’s behalf, and covering errors
and omissions in the performance of the Master Servicer’s obligations hereunder.
Any such errors and omissions policy and fidelity bond may not be cancelable
without thirty (30) days’ prior written notice to the Trustee.
Section
4.04 Power
to Act; Procedures.
The
Master Servicer shall master service the Mortgage Loans and shall have full
power and authority, subject to the REMIC Provisions and the provisions of
Section 9.13 hereof, to do any and all things that it may deem necessary or
desirable in connection with the master servicing and administration of the
Mortgage Loans, including but not limited to the power and authority (i) to
execute and deliver, on behalf of the Certificateholders and the Trustee,
customary consents or waivers and other instruments and documents, (ii) to
consent to transfers of any Mortgaged Property and assumptions of the Mortgage
Notes and related Mortgages, (iii) to collect any Insurance Proceeds and
Liquidation Proceeds, and (iv) to effectuate foreclosure or other conversion
of
the ownership of the Mortgaged Property securing any Loan, in each case, in
accordance with the provisions of this Agreement; provided, however, that the
Master Servicer shall not (and, consistent with its responsibilities under
Section 4.02, shall not permit the Servicer to) knowingly or intentionally
take any action, or fail to take (or fail to cause to be taken) any action
reasonably within its control and the scope of duties more specifically set
forth herein, that, under the REMIC Provisions, if taken or not taken, as the
case may be, would cause any REMIC to fail to qualify as a REMIC or result
in
the imposition of a tax upon the Trust Fund (including but not limited to the
tax on prohibited transactions as defined in Section 860F(a)(2) of the Code
and the tax on contributions to a REMIC set forth in Section 860G(d) of the
Code) unless the Master Servicer has received an Opinion of Counsel (but not
at
the expense of the Master Servicer) to the effect that the contemplated action
will not cause any REMIC to fail to qualify as a REMIC or result in the
imposition of a tax upon any REMIC. The Trustee shall furnish the Master
Servicer, upon written request from a Servicing Officer or an Authorized
Servicer Representative, with any powers of attorney (in form acceptable to
Trustee) empowering the Master Servicer, or the Servicer to execute and deliver
instruments of satisfaction or cancellation, or of partial or full release
or
discharge, and to foreclose upon or otherwise liquidate Mortgaged Property,
and
to appeal, prosecute or defend in any court action relating to the Mortgage
Loans or the Mortgaged Property, in accordance with this Agreement, and the
Trustee shall execute and deliver such other documents, as the Master Servicer
or the Servicer may request, to enable the Master Servicer to master service
and
administer the Mortgage Loans and carry out its duties hereunder, in each case
in accordance with Accepted Master Servicing Practices (and the Trustee shall
have no liability for the misuse of any such powers of attorney by the Master
Servicer or the Servicer and shall be indemnified by the Master Servicer or
the
Servicer, as applicable, for any costs, liabilities or expenses incurred by
the
Trustee in connection with such misuse). If the Master Servicer or the Trustee
has been advised that it is likely that the laws of the state in which action
is
to be taken prohibit such action if taken in the name of the Trustee or that
the
Trustee would be adversely affected under the “doing business” or tax laws of
such state if such action is taken in its name, the Master Servicer shall join
with the Trustee in the appointment of a co-trustee pursuant to
Section 9.10 hereof. In the performance of its duties hereunder, the Master
Servicer shall be an independent contractor and shall not, except in those
instances where it is taking action authorized pursuant to this Agreement to
be
taken by it in the name of the Trustee, be deemed to be the agent of the
Trustee.
Section
4.05 Due-on-Sale
Clauses; Assumption Agreements.
To
the
extent provided in the Servicing Agreement and to the extent the Mortgage Loans
contain enforceable due-on-sale clauses, the Master Servicer shall cause the
Servicer to enforce such clauses in accordance with the Servicing Agreement.
If
applicable law prohibits the enforcement of a due-on-sale clause or such clause
is otherwise not enforced in accordance with the Servicing Agreement, and,
as a
consequence, a Mortgage Loan is assumed, the original Mortgagor may be released
from liability in accordance with the Servicing Agreement.
Section
4.06 Documents,
Records and Funds in Possession of Master Servicer To Be Held for
Trustee.
The
Master Servicer shall transmit and the Servicer (to the extent required under
the Servicing Agreement) shall transmit to the Trustee or Custodian such
documents and instruments coming into the possession of the Master Servicer
or
the Servicer from time to time as are required by the terms hereof or in the
case of the Servicer, the Servicing Agreement, to be delivered to the Trustee
or
the Custodian. Any funds received by the Master Servicer in respect of any
Mortgage Loan or which otherwise are collected by the Master Servicer or the
Servicer as Liquidation Proceeds, Insurance Proceeds or Subsequent Recoveries
in
respect of any Mortgage Loan shall be held for the benefit of the Trustee and
the Certificateholders subject to the Master Servicer’s right to retain or
withdraw from the Distribution Account the Master Servicing Compensation and
other amounts provided in this Agreement, and to the right of the Servicer
to
retain its Servicing Fee and other amounts as provided in the Servicing
Agreement. The Master Servicer shall (and to the extent provided in the
Servicing Agreement) cause the Servicer to, provide access to information and
documentation regarding the Mortgage Loans to the Trustee, its agents and
accountants at any time upon reasonable request and during normal business
hours, and to Certificateholders that are savings and loan associations, banks
or insurance companies, the OTS, the FDIC and the supervisory agents and
examiners of such Office and Corporation or examiners of any other federal
or
state banking or insurance regulatory authority if so required by applicable
regulations of the OTS or other regulatory authority, such access to be afforded
without charge but only upon reasonable request in writing and during normal
business hours at the offices of the Master Servicer designated by it. In
fulfilling such a request the Master Servicer shall not be responsible for
determining the sufficiency of such information.
All
Mortgage Files and funds collected or held by, or under the control of, the
Master Servicer, in respect of any Mortgage Loans, whether from the collection
of principal and interest payments or from Liquidation Proceeds or Insurance
Proceeds, shall be held by the Master Servicer for and on behalf of the Trustee
and the Certificateholders and shall be and remain the sole and exclusive
property of the Trustee; provided, however, that the Master Servicer and the
Servicer shall be entitled to setoff against, and deduct from, any such funds
any amounts that are properly due and payable to the Master Servicer or the
Servicer under this Agreement.
Section
4.07 Standard
Hazard Insurance and Flood Insurance Policies.
For
each
Mortgage Loan, the Master Servicer shall enforce any obligation of the Servicer
under the Servicing Agreement to maintain or cause to be maintained standard
fire and casualty insurance and, where applicable, flood insurance, all in
accordance with the provisions of the Servicing Agreement. It is understood
and
agreed that such insurance shall be with insurers meeting the eligibility
requirements set forth in the Servicing Agreement and that no earthquake or
other additional insurance is to be required of any Mortgagor or to be
maintained on property acquired in respect of a defaulted loan, other than
pursuant to such applicable laws and regulations as shall at any time be in
force and as shall require such additional insurance.
Pursuant
to Section 3.31, any amounts collected by the Master Servicer or by the
Servicer, under any insurance policies (other than amounts to be applied to
the
restoration or repair of the property subject to the related Mortgage or
released to the Mortgagor in accordance with the Servicing Agreement) shall
be
deposited into the Distribution Account, subject to withdrawal pursuant to
Section 3.32. Any
cost
incurred by the Servicer in maintaining any such insurance if the Mortgagor
defaults in its obligation to do so shall be added to the amount owing under
the
Mortgage Loan where the terms of the Mortgage Loan so permit; provided, however,
that the addition of any such cost shall not be taken into account for purposes
of calculating the distributions to be made to Certificateholders and shall
be
recoverable by the Servicer pursuant to the Servicing Agreement.
Section
4.08 Presentment
of Claims and Collection of Proceeds.
The
Master Servicer shall enforce (to the extent provided in the Servicing
Agreement) the Servicer’s obligations to prepare and present on behalf of the
Trustee and the Certificateholders all claims under any insurance policies
and
take such actions (including the negotiation, settlement, compromise or
enforcement of the insured’s claim) as shall be necessary to realize recovery
under such policies. Any proceeds disbursed to the Master Servicer (or disbursed
to the Servicer and remitted to the Master Servicer) in respect of such
policies, bonds or contracts shall be promptly deposited in the Distribution
Account upon receipt, except that any amounts realized that are to be applied
to
the repair or restoration of the related Mortgaged Property as a condition
precedent to the presentation of claims on the related Mortgage Loan to the
insurer under any applicable insurance policy need not be so deposited (or
remitted).
Section
4.09 Maintenance
of the Primary Mortgage Insurance Policies.
The
Master Servicer shall not take, or (to the extent within its control) permit
the
Servicer (to the extent such action is prohibited under the Servicing Agreement)
to take, any action that would result in noncoverage under any primary mortgage
insurance policy or any loss which, but for the actions of such Master Servicer
or the Servicer, would have been covered thereunder. The Master Servicer shall
use its best reasonable efforts to enforce Servicer’s obligation (to the extent
required under the Servicing Agreement) to keep in force and effect (to the
extent that the Mortgage Loan requires the Mortgagor to maintain such
insurance), primary mortgage insurance applicable to each Mortgage Loan in
accordance with the provisions of this Agreement and the Servicing Agreement,
as
applicable. The Master Servicer shall not, and (to the extent within its
control) shall not permit the Servicer (to the extent provided in the Servicing
Agreement) to, cancel or refuse to renew any primary mortgage insurance policy
that is in effect at the date of the initial issuance of the Mortgage Note
and
is required to be kept in force hereunder except in accordance with the
provisions of this Agreement and the Servicing Agreement, as
applicable.
The
Master Servicer agrees to enforce the Servicer’s obligation (to the extent
required under the Servicing Agreement) to present, on behalf of the Trustee
and
the Certificateholders, claims to the insurer under any primary mortgage
insurance policies and, in this regard, to take such reasonable action as shall
be necessary to permit recovery under any primary mortgage insurance policies
respecting defaulted Mortgage Loans. Pursuant to Section 3.31, any amounts
collected by the Master Servicer or the Servicer under any primary mortgage
insurance policies shall be deposited by the Servicer or by the Master Servicer
in the Distribution Account, subject to withdrawal pursuant to
Section 3.32.
Section
4.10 Trustee
to Retain Possession of Certain Insurance Policies and Documents.
The
Trustee or the Custodian, shall retain possession and custody of the originals
(to the extent available) of any primary mortgage insurance policies, or
certificate of insurance if applicable, and any certificates of renewal as
to
the foregoing as may be issued from time to time as contemplated by this
Agreement. Until all amounts distributable in respect of the Certificates have
been distributed in full and the Master Servicer and the Servicer otherwise
have
fulfilled its obligations under this Agreement and the Servicing Agreement,
the
Trustee or the Custodian shall also retain possession and custody of each
Mortgage File in accordance with and subject to the terms and conditions of
this
Agreement and the Custodial Agreement. The Master Servicer shall promptly
deliver or cause to be delivered to the Trustee or the Custodian, upon the
execution or receipt thereof the originals of any primary mortgage insurance
policies, any certificates of renewal, and such other documents or instruments
that constitute Mortgage Loan Documents that come into the possession of the
Master Servicer from time to time.
Section
4.11 Realization
Upon Defaulted Loans.
The
Master Servicer shall enforce the Servicer’s obligation (to the extent required
under the Servicing Agreement) to foreclose upon, repossess or otherwise
comparably convert the ownership of Mortgaged Properties securing such of the
Mortgage Loans as come into and continue in default and as to which no
satisfactory arrangements can be made for collection of delinquent payments,
all
in accordance with the Servicing Agreement.
Section
4.12 Compensation
for the Master Servicer.
As
compensation for its services hereunder, the Master Servicer shall be entitled
to receive the Master Servicing Fee and all income and gain realized from any
investment of funds in the Distribution Account (the “Master Servicing
Compensation”). The Master Servicer shall be required to pay all expenses
incurred by it in connection with its activities hereunder and shall not be
entitled to reimbursement therefor except as provided in this
Agreement.
The
amount of the Master Servicing Compensation payable to the Master Servicer
in
respect of any Distribution Date shall be reduced in accordance with
Section 4.14.
Section
4.13 REO
Property.
In
the
event the Trust Fund acquires ownership of any REO Property in respect of any
Mortgage Loan, the deed or certificate of sale shall be issued to the Trustee,
or to its nominee, on behalf of the Certificateholders. The Master Servicer
shall enforce, to the extent provided in the Servicing Agreement, the Servicer’s
obligation to sell, and the Servicer agrees to sell, any REO Property as
expeditiously as possible and in accordance with the provisions of this
Agreement and the Servicing Agreement, as applicable. Further, the Master
Servicer shall to the extent provided in the Servicing Agreement, enforce the
Servicer’s obligation to sell any REO Property prior to three (3) years after
the end of the calendar year of its acquisition by REMIC I, unless (i) the
Trustee and the Securities Administrator shall have been supplied with an
Opinion of Counsel to the effect that the holding by the Trust Fund of such
REO
Property subsequent to such three-year period will not result in the imposition
of taxes on “prohibited transactions” of any REMIC hereunder as defined in
Section 860F of the Code or cause any REMIC hereunder to fail to qualify as
a REMIC at any time that any Certificates are outstanding, in which case the
Trust Fund may continue to hold such Mortgaged Property (subject to any
conditions contained in such Opinion of Counsel) or (ii) the Servicer shall
have
applied for, prior to the expiration of such three-year period, an extension
of
such three-year period in the manner contemplated by Section 856(e)(3) of
the Code, in which case the three-year period shall be extended by the
applicable extension period. The Master Servicer shall to the extent provided
in
the Servicing Agreement, cause the Servicer to protect and conserve, such REO
Property in the manner and to the extent required by the Servicing Agreement,
in
accordance with the REMIC Provisions and in a manner that does not result in
a
tax on “net income from foreclosure property” or cause such REO Property to fail
to qualify as “foreclosure property” within the meaning of
Section 860G(a)(8) of the Code.
The
Master Servicer shall enforce, to the extent required by the Servicing
Agreement, the Servicer’s obligation to deposit all funds collected and received
in connection with the operation of any REO Property in the Custodial Account
maintained by the Servicer.
The
Master Servicer and the Servicer, upon the final disposition of any REO
Property, shall be entitled to reimbursement for any related unreimbursed
Advances and other unreimbursed advances as well as any unpaid Servicing Fees
and Master Servicing Fees from Liquidation Proceeds received in connection
with
the final disposition of such REO Property; provided, that any such unreimbursed
Advances as well as any unpaid Master Servicing Fees may be reimbursed or paid,
as the case may be, prior to final disposition, out of any net rental income
or
other net amounts derived from such REO Property.
Section
4.14 Obligation
of the Master Servicer in Respect of Prepayment Interest
Shortfalls.
The
Master Servicer shall deposit in the Distribution Account not later than each
Distribution Date an amount equal to the lesser of (i) the aggregate amounts
required to be paid by the Servicer under the Servicing Agreement with respect
to Prepayment Interest Shortfalls on the Mortgage Loans for the related
Distribution Date, and not so paid by the Servicer and (ii) the Master Servicing
Compensation for such Distribution Date without reimbursement
therefor.
ARTICLE
V
ADVANCES
AND DISTRIBUTIONS
Section
5.01 Advances.
If
the
Scheduled Payment on a Mortgage Loan or a portion thereof is delinquent as
of
its Due Date, other than as a result of interest shortfalls due to bankruptcy
proceedings or application of the Relief Act, and the Servicer fails to make
an
advance of the delinquent amount pursuant to the Servicing Agreement, then
the
Trustee (in its capacity as Successor Servicer) shall deposit in the
Distribution Account on the Remittance Date on which such Advance was required
to be remitted by the Servicer, from its own funds an amount equal to such
delinquency, net of the Servicing Fee for such Mortgage Loan except to the
extent the Trustee determines any such advance to be nonrecoverable from
Liquidation Proceeds, Insurance Proceeds, or future payments on the Mortgage
Loan for which such Advance was made; provided, however, that if the Trustee
is
prohibited by law or regulation from obligating itself to make advances
regarding delinquent mortgage loans, then the Trustee shall not be obligated
to
make Advances pursuant to this Section 5.01; and provided further, that any
failure to perform such duties or responsibilities caused by the Servicer’s
failure to provide information required by the Trustee in connection with the
making of any such required Advance shall not be considered a default by the
Trustee as successor to the Servicer; provided, however, that (1) it is
understood and acknowledged by the parties hereto that there will be a period
of
transition (not to exceed 90 days) before the actual servicing functions can
be
fully transferred to the Trustee or any Successor Servicer and (2) any failure
to perform such duties or responsibilities caused by the Servicer’s failure to
provide information required by the Trustee in connection with the making of
any
such Advance shall not be considered a default by the Trustee as successor
to
the Servicer.
Section
5.02 Compensating
Interest Payments.
In
the
event that there is a Prepayment Interest Shortfall arising from a voluntary
Principal Prepayment in full by the Mortgagor with respect to any Mortgage
Loan,
the Servicer shall, to the extent of the Servicing Fee for such Distribution
Date, deposit into the Custodial Account, no later than the close of business
on
the Remittance Date immediately preceding such Distribution Date, an amount
equal to the Prepayment Interest Shortfall; and in case of such deposit, the
Servicer shall not be entitled to any recovery or reimbursement from the
Depositor, the Trustee, the Sponsor, the Trust Fund, the Master Servicer or
the
Certificateholders. In the event that the Servicer fails to make such payments,
the Master Servicer shall deposit in the Distribution Account not later than
each Distribution Date an amount equal to the lesser of (i) the aggregate
amounts required to be paid by the Servicer under the Servicing Agreement with
respect to Prepayment Interest Shortfalls on the Mortgage Loans for the related
Distribution Date, and (ii) the Master Servicing Compensation for such
Distribution Date without reimbursement therefor.
Section
5.03 REMIC
Distributions.
On
each
Distribution Date the Securities Administrator, shall be deemed to allocate
distributions to the REMIC I Regular Interests in accordance with
Section 5.07 hereof.
Section
5.04 Distributions.
(a) On
each
Distribution Date, the Available Distribution Amount for such Distribution
Date
shall be withdrawn by the Securities Administrator to the extent of funds on
deposit in the Distribution Account, in the following order of
priority:
First,
in the
following order of priority:
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1.
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from
the Interest Remittance Amount to the holders of the Senior Certificates
on a pro rata basis, based on the entitlement of each such Class,
the
Senior Interest Distribution Amount for each such Class and for such
Distribution Date;
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2.
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to
the extent of the Interest Remittance Amount remaining after distribution
of the Senior Interest Distribution Amount to the Holders of the
Senior
Certificates, to
the Holders
of
the Class M-1 Certificates, the Interest Distribution Amount for
such
Class for such Distribution Date;
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3.
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to
the extent of the Interest Remittance Amount remaining after distribution
of the Senior Interest Distribution Amount to the Holders
of
the Senior Certificates and the Interest Distribution Amount to
Holders
of
the Class M-1 Certificates, to the Holders
of
the Class M-2 Certificates, the Interest Distribution Amount for
such
Class for such Distribution Date;
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4.
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to
the extent of the Interest Remittance Amount remaining after distribution
of the Senior Interest Distribution Amount to the Holders of the
Senior
Certificates, the Interest Distribution Amount to the Holders of
the Class
M-1 Certificates and the Interest Distribution Amount to the Holders
of
the Class M-2 Certificates, to the Holders of the Class M-3 Certificates,
the Interest Distribution Amount for such Class for such Distribution
Date;
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5.
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to
the extent of the Interest Remittance Amount remaining after distribution
of the Senior Interest Distribution Amount to the Holders of the
Senior
Certificates, the Interest Distribution Amount to the Holders of
the Class
M-1 Certificates, the
Interest Distribution Amount to the Holders of the Class M-2
Certificates
and the Interest Distribution Amount to the Holders of the Class
M-3
Certificates, to the Holders of the Class M-4 Certificates, the Interest
Distribution Amount for such Class for such Distribution
Date;
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Second,
to pay
principal on the Certificates, to the extent of the Principal Distribution
Amount for each Distribution Date, in the following amount and order of
priority:
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1.
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The
Senior Principal Distribution Amount for such Distribution Date will
be
distributed to the Senior Certificates as follows:
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first,
to the Class A-6 Certificates, in an amount up to the Class A-6 Lockout
Principal Distribution Amount for such Distribution Date, until the
Certificate Principal Balance thereof has been reduced to zero;
and
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second,
any remaining Senior Principal Distribution Amount after the distribution
described in clause first above, sequentially:
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· to
the Class A-1 Certificates, until the Certificate Principal Balance
of
each such Class has been reduced to zero;
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· to
the Class A-2 Certificates, until the Certificate Principal Balance
thereof has been reduced to zero;
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· to
the Class A-3 Certificates, until the Certificate Principal Balance
thereof has been reduced to zero;
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· to
the Class A-4 Certificates, until the Certificate Principal Balance
thereof has been reduced to zero;
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· to
the Class A-5 Certificates, until the Certificate Principal Balance
thereof has been reduced to zero; and
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· to
the Class A-6 Certificates, until the Certificate Principal Balance
thereof has been reduced to zero.
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provided,
however, on any Distribution Date after the Certificate Principal Balances
of
the Mezzanine Certificates have been reduced to zero, distributions of principal
to the Senior Certificates will be allocated among such Senior Certificates
concurrently on a pro rata basis, based on the Certificate Principal Balances
thereof, until the Certificate Principal Balance of each such Class has been
reduced to zero.
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2.
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To
the extent of any Principal Distribution Amount remaining after
distribution of the Senior Principal Distribution Amount to the
Holders
of
the Senior Certificates on such Distribution Date, to the Class M-1
Certificates, in an amount equal to the Class M-1 Principal Distribution
Amount for such Distribution Date, until the Certificate Principal
Balance
thereof has been reduced to zero.
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3.
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To
the extent of any Principal Distribution Amount remaining after
distribution of the Senior Principal Distribution Amount to the
Holders
of
the Senior Certificates on such Distribution Date and the distribution
of
the Class M-1 Principal Distribution Amount to the Holders
of
the Class M-1 Certificates on such Distribution Date, to the Class
M-2
Certificates, in an amount equal to the Class M-2 Principal Distribution
Amount for such Distribution Date, until the Certificate Principal
Balance
thereof has been reduced to zero.
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4.
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To
the extent of any Principal Distribution Amount remaining after
distribution of the Senior Principal Distribution Amount to the
Holders
of
the Senior Certificates on such Distribution Date, the distribution
of the
Class M-1 Principal Distribution Amount to the Holders
of
the Class M-1 Certificates on such Distribution Date and the distribution
of the Class M-2 Principal Distribution Amount to the Holders
of
the Class M-2 Certificates on such Distribution Date, to the Class
M-3
Certificates in an amount equal to the Class M-3 Principal Distribution
Amount for such Distribution Date, until the Certificate Principal
Balance
thereof has been reduced to zero.
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5.
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To
the extent of any Principal Distribution Amount remaining after
distribution of the Senior Principal Distribution Amount to the
Holders
of
the Senior Certificates on such Distribution Date, the distribution
of the
Class M-1 Principal Distribution Amount to the Holders
of
the Class M-1 Certificates on such Distribution Date, the distribution
of
the Class M-2 Principal Distribution Amount to the Holders
of
the Class M-2 Certificates on such Distribution Date and the distribution
of the Class M-3 Principal Distribution Amount to the Holders
of
the Class M-3 Certificates on such Distribution Date, to the Class
M-4
Certificates in an amount equal to the Class M-4 Principal Distribution
Amount for such Distribution Date, until the Certificate Principal
Balance
thereof has been reduced to zero.
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Third,
after
the payment of interest and principal to the Certificates as described in
clauses First
and
Second
above,
any Net Monthly Excess Cashflow for such Distribution Date will be distributed
as follows:
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1.
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To
the Holders of the Publicly Offered Certificates in an amount equal
to any
Extra Principal Distribution Amount for such Distribution Date, payable
to
such Holders as part of the Principal Distribution Amount in accordance
with clause Second
above;
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2.
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To
the Holders of the Class M-1 Certificates, then to the Holders of
the
Class M-2 Certificates, then to the Holders of the Class M-3 Certificates
and then to the Holders of the Class M-4 Certificates, the related
Interest Carry Forward Amount for each such Class and such Distribution
Date;
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3.
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To
the Net WAC Reserve Fund, in respect of the Senior Certificates,
an amount
equal to (i) with respect to the Senior Certificates (other than
the Class
A-1 Certificates), the sum of the related Net WAC Rate Carryover
Amounts,
if any, for each such Class for such Distribution Date or any prior
Distribution Dates and (ii) with respect to the Class A-1 Certificates,
the amount by which the sum of the Net WAC Rate Carryover Amounts
with
respect to the Class A-1 Certificates exceeds the amount received
by the
Securities Administrator with respect to the Cap Contract for such
Distribution Date or any prior Distribution Date;
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4.
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To
the Net WAC Reserve Fund, in respect of the Class M-1 Certificates,
the
Net WAC Rate Carryover Amount for such Class for such Distribution
Date or
any prior Distribution Dates to the extent unpaid;
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5.
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To
the Net WAC Reserve Fund, in respect of the Class M-2 Certificates,
the
Net WAC Rate Carryover Amount for such Class for such Distribution
Date or
any prior Distribution Dates to the extent unpaid;
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6.
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To
the Net WAC Reserve Fund, in respect of the Class M-3 Certificates,
the
Net WAC Rate Carryover Amount for such Class for such Distribution
Date or
any prior Distribution Dates to the extent unpaid;
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7.
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To
the Net WAC Reserve Fund, in respect of the Class M-4 Certificates,
the
Net WAC Rate Carryover Amount for such Class for such Distribution
Date or
any prior Distribution Dates to the extent unpaid;
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8.
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To
the Holders of the Class X Certificates, the Class X Distribution
Amount;
and
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9.
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To
the Holders of the Class R Certificates, in respect of the Class
R-2
Interest, any remaining amounts.
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On
each
Distribution Date, the Securities Administrator, after making the required
distributions of interest and principal to the Certificates as described in
clauses First
and
Second
above
and
after the distribution of the Net Monthly Excess Cashflow as described in clause
Third
above,
will withdraw from the Net WAC Reserve Fund the amounts on deposit therein
and
distribute such amounts to the Senior Certificates and the Mezzanine
Certificates in respect of any Net WAC Rate Carryover Amounts due to each such
Class in the following manner and order of priority: first, concurrently to
the
Senior Certificates, on a pro rata basis, based on the entitlement of each
such
Class, the related Net WAC Rate Carryover Amount (after taking into account
payments made pursuant to the Cap Contract with respect to the Class A-1
Certificates) for such Distribution Date for each such Class; second, to the
Class M-1 Certificates, the related Net WAC Rate Carryover Amount for such
Distribution Date for such Class; third, to the Class M-2 Certificates, the
related Net WAC Rate Carryover Amount for such Distribution Date for such Class;
fourth, to the Class M-3 Certificates, the related Net WAC Rate Carryover Amount
for such Distribution Date for such Class and fifth, to the Class M-4
Certificates, the related Net WAC Rate Carryover Amount for such Distribution
Date for such Class.
On
each
Distribution Date, all amounts representing Prepayment Charges in respect of
the
Mortgage Loans received during the related Prepayment Period and deposited
in
the Distribution Account will be withdrawn from such Distribution Account and
distributed by the Securities Administrator to the Class P Certificates and
shall not be available for distribution to the Holders of any other Class of
Certificates. The payment of such Prepayment Charges shall not reduce the
Certificate Principal Balance of the Class P Certificates.
On
the
Distribution Date in August 2011, the Securities Administrator shall make a
payment of principal to the Class P Certificates in reduction of the Certificate
Principal Balance thereof from amounts on deposit in a separate reserve account
established and maintained by the Securities Administrator for the exclusive
benefit of the Class P Certificateholders.
(b) Subject
to Section 10.02 hereof respecting the final distribution on a Class of
Publicly Offered Certificates, on each Distribution Date the Securities
Administrator shall make distributions to each Holder of a Publicly Offered
Certificate of record on the preceding Record Date either by wire transfer
in
immediately available funds to the account of such holder at a bank or other
entity having appropriate facilities therefor, if (i) such Holder has so
notified the Securities Administrator at least five (5) Business Days prior
to
the related Record Date and (ii) such Holder shall hold Regular Certificates
with aggregate principal denominations of not less than $1,000,000 or evidencing
a Percentage Interest aggregating ten percent (10%) or more with respect to
such
Class or, if not, by check mailed by First Class Mail to such Certificateholder
at the address of such holder appearing in the Certificate Register.
Notwithstanding the foregoing, but subject to Section 10.02 hereof
respecting the final distribution, distributions with respect to Publicly
Offered Certificates registered in the name of a Depository shall be made to
such Depository in immediately available funds.
Section
5.05 Allocation
of Realized Losses.
(a) On
or
prior to each Determination Date, the Securities Administrator shall determine
the amount of any Realized Loss in respect of each Mortgage Loan that occurred
during the immediately preceding calendar month, based solely on the reports
delivered by the Servicer pursuant to the Servicing Agreement.
(b) The
interest portion of Realized Losses shall be allocated to the Certificates
as
described in Section 1.02 hereof.
(c) The
principal portion of all Realized Losses on the Mortgage Loans allocated to
any
REMIC I Regular Interest pursuant to Section 5.05(d) shall be
allocated on each Distribution Date as follows: first, in reduction of the
Net
Monthly Excess Cashflow; second, to the Class X Certificates, until the
Certificate Principal Balance thereof has been reduced to zero; third, to the
Class M-4 Certificates, until the Certificate Principal Balance thereof has
been
reduced to zero; fourth, to the Class M-3 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero; fifth, to the Class M-2
Certificates, until the Certificate Principal Balance thereof has been reduced
to zero; and sixth, to the Class M-1 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero. All such Realized Losses
to
be allocated to the Certificate Principal Balances of the Mezzanine Certificates
on any Distribution Date shall be so allocated after the actual distributions
to
be made on such date as provided above. All references above to the Certificate
Principal Balance of any Class of Mezzanine Certificates shall be to the
Certificate Principal Balance of such Class immediately prior to the relevant
Distribution Date, before reduction thereof by any Realized Losses, in each
case
to be allocated to such Mezzanine Certificates, on such Distribution
Date.
Any
allocation of the principal portion of Realized Losses to a Mezzanine
Certificate on any Distribution Date shall be made by reducing the Certificate
Principal Balance thereof by the amount so allocated; any allocation of Realized
Losses to the Class X Certificates shall be made by reducing the amount
otherwise payable in respect thereof pursuant to Section 5.04(a) clause
Third.
No
allocations of any Realized Losses shall be made to the Certificate Principal
Balances of the Senior Certificates or Class P Certificates.
All
such
Realized Losses and all other losses allocated to a Class of Certificates
hereunder will be allocated among the Certificates of such Class in proportion
to the Percentage Interests evidenced thereby.
(d) The
principal portion of all Realized Losses on the Mortgage Loans shall be
allocated on each Distribution Date to the following REMIC I Regular
Interests in the specified percentages, as follows: first, to Uncertificated
Accrued Interest payable to the REMIC I Regular Interest LT-AA and
REMIC I Regular Interest LT-ZZ up to an aggregate amount equal to the
REMIC I Interest Loss Allocation Amount, 98% and 2%, respectively; second,
to the Uncertificated Principal Balances of the REMIC I Regular Interest LT-AA
and REMIC I Regular Interest LT-ZZ up to an aggregate amount equal to the REMIC
I Principal Loss Allocation Amount, 98% and 2%, respectively; third, to the
Uncertificated Principal Balances of REMIC I Regular Interest LT-AA, REMIC
I
Regular Interest LT-M4 and REMIC I Regular Interest LT-ZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Principal Balance of REMIC I Regular
Interest LT-M3 has been reduced to zero; fourth, to the Uncertificated Principal
Balances of REMIC I Regular Interest LT-AA, REMIC I Regular Interest LT-M3
and
REMIC I Regular Interest LT-ZZ, 98%, 1% and 1%, respectively, until the
Uncertificated Principal Balance of REMIC I Regular Interest LT-M3 has been
reduced to zero; fifth, to the Uncertificated Principal Balances of REMIC I
Regular Interest LT-AA, REMIC I Regular Interest LT-M2 and REMIC I Regular
Interest LT-ZZ, 98%, 1% and 1%, respectively, until the Uncertificated Principal
Balance of REMIC I Regular Interest LT-M2 has been reduced to zero; and sixth,
to the Uncertificated Principal Balances of REMIC I Regular Interest LT-AA,
REMIC I Regular Interest LT-M1 and REMIC I Regular Interest LT-ZZ, 98%, 1%
and
1%, respectively, until the Uncertificated Principal Balance of REMIC I Regular
Interest LT-M1 has been reduced to zero.
(e) Notwithstanding
anything to the contrary contained herein, if on any Distribution Date the
Securities Administrator discovers, based solely on the reports delivered by
the
Servicer under the Servicing Agreement, that any Subsequent Recoveries have
been
collected by the Servicer with respect to a Mortgage Loan, the amount of such
Subsequent Recoveries will be applied to increase the Certificate Principal
Balance of the Class of Mezzanine Certificates with the highest payment priority
to which Realized Losses have been allocated, but not by more than the amount
of
Realized Losses previously allocated to that Class of Mezzanine Certificates
pursuant to this Section 5.05. The amount of any remaining Subsequent
Recoveries will be applied to sequentially increase the Certificate Principal
Balance of the Mezzanine Certificates, beginning with the Class of Mezzanine
Certificates with the next highest payment priority, up to the amount of such
Realized Losses previously allocated to such Class of Certificates pursuant
to
this Section 5.05. Holders of such Certificates will not be entitled to any
payment in respect of current interest on the amount of such increases for
any
Accrual Period preceding the Distribution Date on which such increase occurs.
Any such increases shall be applied to the Certificate Principal Balance of
each
Mezzanine Certificate of such Class in accordance with its respective Percentage
Interest.
Section
5.06 Reserved.
Section
5.07 Monthly
Statements to Certificateholders.
(a) Not
later
than each Distribution Date, the Securities Administrator shall prepare and
make
available to each Holder of Certificates, the Depositor, the Credit Risk Manager
and the PMI Insurer via its website a statement setting forth the following
information for the Certificates:
(i) the
Interest Accrual Period and general Distribution Dates for each Class of
Certificates;
(ii) the
Pass-Through Rate for each Class of Certificates with respect to the current
Accrual Period;
(iii) the
total
cash flows received and the general sources thereof;
(iv) the
amount of the related distribution to Holders of each Class allocable to
principal, separately identifying (A) the aggregate amount of any Principal
Prepayments included therein, (B) the aggregate of all scheduled payments of
principal included therein, (C) the amount of Prepayment Charges distributed
to
the Class P Certificates and (D) the Extra Principal Distribution
Amount;
(v) the
amount distributed to Holders of each Class on such Distribution Date allocable
to interest;
(vi) the
Certificate Principal Balance or Certificate Notional Balance of each Class
of
Certificates, if applicable, after giving effect (i) to all distributions
allocable to principal on such Distribution Date and (ii) the allocation of
any
Realized Losses for such Distribution Date;
(vii) the
aggregate amount of P&I Advances included in the distributions on the
Distribution Date;
(viii) the
aggregate amount of Relief Act Interest Shortfalls for such Distribution
Date;
(ix) the
aggregate amount of any Prepayment Interest Shortfall for such Distribution
Date, to the extent not covered by payments by the Servicer pursuant to the
Servicing Agreement or the Master Servicer pursuant to Section 4.14 of this
Agreement;
(x) the
cumulative amount of Realized Losses for the Mortgage Loans to date and, in
addition, if the Certificate Principal Balance of any Class of Certificates
have
been reduced to zero, the cumulative amount of any Realized Losses that have
not
been allocated to any Class of Certificates;
(xi) the
Overcollateralization Amount, the Credit Enhancement Percentage, any
Overcollateralization Increase Amount and any Overcollateralization Reduction
Amount for such Distribution Date;
(xii) the
amount of any Prepayment Charges remitted by the Servicer;
(xiii) the
number, aggregate principal balance, weighted average remaining term to maturity
and weighted average Mortgage Rate of the Mortgage Loans as of the related
Due
Date;
(xiv) the
number and Scheduled Principal Balance of all the Mortgage Loans for the
following Distribution Date;
(xv) the
number and aggregate principal balance of any Mortgage Loans that were (A)
delinquent (exclusive of Mortgage Loans in foreclosure) using the “OTS” method
(1) one scheduled payment is delinquent, (2) two scheduled payments are
delinquent, (3) three scheduled payments are delinquent and (4) foreclosure
proceedings have been commenced, and loss information for the period; the number
and aggregate principal balance of any Mortgage Loans in respect of which (A)
one scheduled payment is delinquent, (B) two scheduled payments are delinquent,
(C) three or more scheduled payments are delinquent and (D) foreclosure
proceedings have been commenced, and loss information for the
period;
(xvi) with
respect to any Mortgage Loan that was liquidated during the preceding calendar
month, the loan number and the Stated Principal Balance of, and Realized Loss
on, such Mortgage Loan as of the close of business on the Determination Date
preceding such Distribution Date;
(xvii) the
total
number and principal balance of any real estate owned or REO Properties as
of
the close of business on the Determination Date preceding such Distribution
Date;
(xviii) the
three
month rolling average of the percent equivalent of a fraction, the numerator
of
which is the aggregate scheduled principal balance of the Mortgage Loans that
are sixty (60) days or more delinquent or are in bankruptcy or foreclosure
or
are REO Properties, and the denominator of which is the scheduled principal
balances of all of the Mortgage Loans as of the last day of such Distribution
Date;
(xix) the
aggregate Servicing Fee received by the Servicer and the Master Servicing Fees
received by the Master Servicer during the related Due Period;
(xx) the
amount of the Credit Risk Management Fees paid to the Credit Risk Manager and/or
the Sponsor for such Distribution Date;
(xxi) the
amount, if any, of other fees or expenses accrued and paid, with an
identification of the payee and the general purpose of such fees;
(xxii) the
amount of any Net WAC Rate Carryover Amounts and the amount in the Net
WAC
Reserve Fund after
all
deposits and withdrawals on such Distribution Date;
(xxiii) whether
the Stepdown Date has occurred and whether any Trigger Event is in
effect;
(xxiv) the
amount of payments received from the Servicer related to claims under the PMI
Policy during the related Prepayment Period (based solely on information
provided by the Servicer);
(xxv) (A)
the
dollar amount of claims made under each PMI Policy that were denied (as
identified by the Servicer) during the Prepayment Period (and the number of
Mortgage Loans to which such denials related) and (B) the dollar amount of
the
cumulative claims made under the PMI Policy that were denied since the Closing
Date (and the number of Mortgage Loans to which such denials related) (based
solely on information provided by the Servicer);
(xxvi) the
PMI
Threshold Percentage for such Distribution Date; and
(xxvii) amounts
payable in respect of the Cap Contract.
The
Securities Administrator may make the foregoing monthly statement (and, at
its
option, any additional files containing the same information in an alternative
format) available each month to Certificateholders via the Securities
Administrator’s internet website. The Securities Administrator’s internet
website shall initially be located at “xxx.xxxxxxx.xxx”. Assistance in using the
website can be obtained by calling the Securities Administrator’s customer
service desk at (000) 000-0000. Parties that are unable to use the above
distribution options are entitled to have a paper copy mailed to them via first
class mail by calling the customer service desk and indicating such. The
Securities Administrator may change the way monthly statements are distributed
in order to make such distributions more convenient or more accessible to the
above parties.
The
Securities Administrator shall be entitled to rely on but shall not be
responsible for the content or accuracy of any information provided by third
parties for purposes of preparing such statement and may affix thereto any
disclaimer it deems appropriate in its reasonable discretion (without suggesting
liability on the part of any other party hereto).
(b) The
Securities Administrator’s responsibility for making the above information
available to the Certificateholders is limited to the availability, timeliness
and accuracy of the information provided by the Servicer and the Cap Provider.
The Securities Administrator will make available a copy of each statement
provided pursuant to this Section 5.06 to each Rating Agency.
(c) Within
a
reasonable period of time after the end of each calendar year, the Securities
Administrator shall cause to be furnished upon written request to each Person
who at any time during the calendar year was a Certificateholder, a statement
containing the information set forth in clauses (a)(i) and (a)(ii) of this
Section 5.06 aggregated for such calendar year or applicable portion
thereof during which such Person was a Certificateholder. Such obligation of
the
Securities Administrator shall be deemed to have been satisfied to the extent
that substantially comparable information shall be provided by the Securities
Administrator pursuant to any requirements of the Code as from time to time
in
effect.
(d) Upon
filing with the Internal Revenue Service, the Securities Administrator shall
furnish to the Holders of the Residual Certificates the applicable Form 1066
and
each applicable Form 1066Q and shall respond promptly to written requests made
not more frequently than quarterly by any Holder of a Residual Certificate
with
respect to the following matters:
(i) The
original projected principal and interest cash flows on the Closing Date on
each
Class of regular and residual interests created hereunder and on the Mortgage
Loans, based on the Prepayment Assumption;
(ii) The
projected remaining principal and interest cash flows as of the end of any
calendar quarter with respect to each Class of regular and residual interests
created hereunder and the Mortgage Loans, based on the Prepayment
Assumption;
(iii) The
applicable Prepayment Assumption and any interest rate assumptions used in
determining the projected principal and interest cash flows described
above;
(iv) The
original issue discount (or, in the case of the Mortgage Loans, market discount)
or premium accrued or amortized through the end of such calendar quarter with
respect to each Class of regular or residual interests created hereunder and
to
the Mortgage Loans, together with each constant yield to maturity used in
computing the same;
(v) The
treatment of losses realized with respect to the Mortgage Loans or the regular
interests created hereunder, including the timing and amount of any cancellation
of indebtedness income of a REMIC with respect to such regular interests or
bad
debt deductions claimed with respect to the Mortgage Loans;
(vi) The
amount and timing of any non-interest expenses of a REMIC; and
(vii) Any
taxes
(including penalties and interest) imposed on the REMIC, including, without
limitation, taxes on “prohibited transactions,” “contributions” or “net income
from foreclosure property” or state or local income or franchise
taxes.
The
information pursuant to clauses (i), (ii), (iii) and (iv) above shall be
provided by the Depositor pursuant to Section 9.13.
Section
5.08 REMIC
Designations and REMIC Allocations.
(a) The
Securities Administrator shall elect that each of REMIC I and REMIC II shall
be
treated as a REMIC under Section 860D of the Code. Any inconsistencies or
ambiguities in this Agreement or in the administration of this Agreement shall
be resolved in a manner that preserves the validity of such REMIC elections.
The
REMIC I Regular Interests shall constitute the assets of REMIC II.
(b) On
each
Distribution Date, the Available Distribution Amount, in the following order
of
priority, shall be distributed by REMIC I to REMIC II on account of the REMIC
I
Regular Interests or withdrawn from the Distribution Account and distributed
to
the Holders of the Class R Certificates, as the case may be:
(i) to
Holders of REMIC I Regular Interest LT-AA, REMIC Regular Interest LT-A1, REMIC
I
Regular Xxxxxxxx XX-X0, REMIC I Regular Xxxxxxxx XX-X0, REMIC I Regular Xxxxxxxx
XX-X0, REMIC I Regular Xxxxxxxx XX-X0, REMIC I Regular Xxxxxxxx XX-X0, REMIC
I
Regular Interest LT-M1, REMIC I Regular Interest LT-M2, REMIC I Regular Interest
LT-M3, REMIC I Regular Interest LT-M4 and REMIC I Regular Interest LT-ZZ, pro
rata, in an amount equal to (A) the Uncertificated Accrued Interest for each
such REMIC I Regular Interest for such Distribution Date, plus (B) any amounts
in respect thereof remaining unpaid from previous Distribution Dates. Amounts
payable as Uncertificated Accrued Interest in respect of REMIC I Regular
Interest LT-ZZ shall be reduced and deferred when the REMIC I
Overcollateralization Amount is less than the REMIC I Required
Overcollateralization Amount, by the lesser of (x) the amount of such difference
and (y) the REMIC I Regular Interest LT-ZZ Maximum Interest Deferral Amount
and
such amount will be payable to the Holders of REMIC Regular Interest LT-A1,
REMIC Regular Xxxxxxxx XX-X0, REMIC I Regular Xxxxxxxx XX-X0, REMIC I Regular
Xxxxxxxx XX-X0, REMIC I Regular Xxxxxxxx XX-X0, REMIC I Regular Xxxxxxxx XX-X0,
REMIC I Regular Interest LT-M1, REMIC I Regular Interest LT-M2, REMIC I Regular
Interest LT-M3 and REMIC I Regular Interest LT-M4 in the same proportion as
the
Overcollateralization Increase Amount is allocated to the Corresponding
Certificates and the Uncertificated Principal Balance of REMIC I Regular
Interest LT-ZZ shall be increased by such amount;
(ii) second,
to the Holders of REMIC I Regular Interests, in an amount equal to the remainder
of the Available Distribution Amount for such Distribution Date after the
distributions made pursuant to clause (i) above, allocated as
follows:
(A) 98.00%
of
such remainder (other than amounts payable under clause (c) below) to the
Holders of REMIC I Regular Interest LT-AA and REMIC I Regular Interest LT-P,
until the Uncertificated Principal Balance of such REMIC I Regular Interest
is
reduced to zero, provided, however, that the Uncertificated Principal Balance
of
REMIC I Regular Interest LT-P shall not be reduced until the Distribution Date
in August 2011 or any Distribution Date thereafter, at which point such amount
shall be distributed to REMIC I Regular Interest LT-P, until $100 has been
distributed pursuant to this clause;
(B) 2.00%
of
such remainder (other than amounts payable under clause (c) below, first, to
the
Holders of REMIC I Regular Xxxxxxxx XX-X0, REMIC Regular Xxxxxxxx XX-X0, REMIC
I
Regular Xxxxxxxx XX-X0, REMIC I Regular Xxxxxxxx XX-X0, REMIC I Regular Xxxxxxxx
XX-X0, REMIC I Regular Xxxxxxxx XX-X0, REMIC I Regular Interest LT-M1, REMIC
I
Regular Interest LT-M2, REMIC I Regular Interest LT-M3 and REMIC I Regular
Interest LT-M4, 1.00%, in the same proportion as principal payments are
allocated to the Corresponding Certificates, until the Uncertificated Principal
Balances of such REMIC I Regular Interests are reduced to zero and second,
to
the Holders of REMIC I Regular Interest LT-ZZ until the Uncertificated Principal
Balance of such REMIC I Regular Interest is reduced to zero; then
(iii) any
remaining amount to the Holders of the Class R Certificates;
provided,
however, that (i) 98.00% and (ii) 2.00% of any principal payments that are
attributable to an Overcollateralization Reduction Amount shall be allocated
to
Holders of (i) REMIC I Regular Interest LT-AA and REMIC I Regular Interest
LT-P,
in that order and (ii) REMIC I Regular Interest LT-ZZ, respectively; provided
that REMIC I Regular Interest LT-P shall not be reduced until the Distribution
Date in August 2011, at which point such amount shall be distributed to REMIC
I
Regular Interest LT-P, until $100 has been distributed pursuant to this
clause.
Section
5.09 Prepayment
Charges.
(a) On
each
Distribution Date, all amounts representing Prepayment Charges in respect of
the
Mortgage Loans received during the related Prepayment Period and deposited
in
the Distribution Account will be withdrawn from the Distribution Account and
distributed by the Securities Administrator to the Class P Certificates and
shall not be available for distribution to the holders of any other Class of
Certificates. The payment of such Prepayment Charges shall not reduce the
Certificate Principal Balance of the Class P Certificates.
(b) The
Master Servicer shall not be obligated to recalculate or verify Prepayment
Charges collected by the Servicer and remitted to the related Deposit Account
for distribution to the related Certificateholders.
Section
5.10 Class
P Certificate Account.
The
Securities Administrator shall establish and maintain with itself a separate,
segregated trust account titled “Xxxxx Fargo Bank, N.A., for the benefit of
Nomura Asset Acceptance Corporation, Alternative Loan Trust 2006-WF1 Class
P
Certificate Account”. On the Closing Date, the Depositor will deposit, or cause
to be deposited in the Class P Certificate Account $100.00. The amount on
deposit in the Class P Certificate Account shall be held uninvested. On the
Distribution Date in August 2011, the Securities Administrator shall withdraw
the amount on deposit in the Class P Certificate Account and remit such amount
to the Holders of the Class P Certificates, in reduction of the Certificate
Principal Balance thereof.
Section
5.11 Net
WAC Reserve Fund.
(a) The
Securities Administrator shall establish a Net WAC Reserve Fund on behalf of
the
holders of the Publicly Offered Certificates. The Net WAC Reserve Fund must
be
an Eligible Account. The Net WAC Reserve Fund shall be entitled “Net WAC Reserve
Fund, Xxxxx Fargo Bank, National Association for the benefit of holders of
Nomura Asset Acceptance Corporation, Mortgage Pass-Through Certificates, Series
2006-WF1, Class A-1, Class X-0, Xxxxx X-0, Class A-4, Class X-0, Xxxxx X-0,
Class M-1, Class M-2, Class M-3 and Class M-4”. Any payments received by the
Securities Administrator under the Cap Contract shall be deposited into the
Net
WAC Reserve Fund for the benefit of the Class A-1 Certificates. On the Closing
Date, the Depositor will deposit, or cause to be deposited, into the Net WAC
Reserve Fund $5,000. On each Distribution Date as to which there is a Net WAC
Rate Carryover Amount payable to any Class of Certificates, the Securities
Administrator shall deposit the amounts pursuant to paragraphs 3, 4, 5, 6 and
7
of clause Third
of
Section 5.04(a) into the Net WAC Reserve Fund and the Securities
Administrator has been directed by the Class X Certificateholder to distribute
such amounts to the Holders of the Publicly Offered Certificates in the amounts
and priorities set forth in clause Third
of
Section 5.04(a).
(b) The
Net
WAC Reserve Fund is an “outside reserve fund” within the meaning of Treasury
Regulation §1.860G-2(h) and shall be an asset of the Trust Fund but not an asset
of any REMIC. The Securities Administrator on behalf of the Trust Fund shall
be
the nominal owner of the Net WAC Reserve Fund. The Class X Certificateholders
shall be the beneficial owners of the Net WAC Reserve Fund, subject to the
power
of the Securities Administrator to transfer amounts under Section 5.04(a).
Amounts in the Net WAC Reserve Fund shall be held either uninvested in a trust
or deposit account of the Securities Administrator with no liability for
interest or other compensation thereof or, at the written direction of the
Majority Class X Certificateholder, be invested in Permitted Investments that
mature no later than the Business Day prior to the next succeeding Distribution
Date. All net income and gain from such investments shall be distributed to
the
Majority Class X Certificateholder, not as a distribution in respect of any
interest in any REMIC (pursuant to Section 5.08). All amounts earned on amounts
on deposit in the Net WAC Reserve Fund shall be taxable to the Majority Class
X
Certificateholder. Any losses on such investments shall be deposited in the
Net
WAC Reserve Fund by the Majority Class X Certificateholder out of its own funds
immediately as realized. In the event that the Majority Class X
Certificateholder shall fail to provide investment instructions to the
Securities Administrator, the amounts on deposit in the Net WAC Reserve Fund
shall be held uninvested.
(c) For
federal tax return and information reporting, the value of the right of the
holder of the Class A-1 Certificates to receive payments from the Net WAC
Reserve Fund shall be $9,000.00 and the amount allocated to the right of the
holders of the Publicly Offered Certificates (other than the Class A-1
Certificates) to receive payments from the Net WAC Reserve Fund in respect
of
any Net WAC Rate Carryover Amount shall be zero.
Section
5.12 Reports
Filed with Securities and Exchange Commission.
(a) (i)For
so
long as the Trust Fund is subject to Exchange Act reporting requirements, within
fifteen (15) days after each Distribution Date (subject to permitted extensions
under the Exchange Act), the Securities Administrator shall prepare and file
on
behalf of the Trust Fund any Form 10-D required by the Exchange Act, in form
and
substance as required by the Exchange Act. The Securities Administrator shall
file each Form 10-D with a copy of the related Monthly Statement attached
thereto. Any disclosure in addition to the Monthly Statement that is required
to
be included on Form 10-D (“Additional Form 10-D Disclosure”) shall be reported
to the Depositor and the Securities Administrator by the entity indicated on
Exhibit N and approved by the Depositor pursuant to the following paragraph.
The
Securities Administrator will have no duty or liability for any failure
hereunder to determine or prepare any Additional Form 10-D Disclosure, except
as
set forth in the next paragraph.
(ii) As
set
forth on Exhibit N hereto, within five (5) calendar days after the related
Distribution Date, (i) each Transaction Party shall be required to provide
to
the Securities Administrator and to the Depositor, to the extent known by a
responsible officer thereof, in XXXXX-compatible form, or in such other form
as
otherwise agreed upon by the Securities Administrator and such party, the form
and substance of any Additional Form 10-D Disclosure, if applicable, together
with an Additional Disclosure Notification in the form of Exhibit H hereto
(an
“Additional Disclosure Notification”) and (ii) the Depositor will approve, as to
form and substance, or disapprove, as the case may be, the inclusion of the
Additional Form 10-D Disclosure on Form 10-D. The Depositor will be responsible
for any reasonable fees and expenses assessed or incurred by the Securities
Administrator in connection with including any Additional Form 10-D Disclosure
on Form 10-D pursuant to this paragraph.
(iii) After
preparing the Form 10-D, the Securities Administrator shall forward
electronically a copy of the Form 10-D to the Depositor (provided that such
Form
10-D includes any Additional Form 10-D Disclosure). Within two (2) calendar
days
after receipt of such copy, but no later than the twelfth (12th) calendar day
after the Distribution Date, the Depositor shall notify the Securities
Administrator in writing (which may be furnished electronically) of any changes
to or approval of such Form 10-D. In the absence of receipt of any written
changes or approval, the Securities Administrator shall be entitled to assume
that such Form 10-D is in final form and the Securities Administrator may
proceed with the execution and filing of the Form 10-D. A duly authorized
representative of the Master Servicer shall sign each Form 10-D. If a Form
10-D
cannot be filed on time or if a previously filed Form 10-D needs to be amended,
the Securities Administrator will follow the procedures set forth in Section
5.12(c)(ii). Promptly (but no later than one (1) Business Day) after filing
with
the Commission, the Securities Administrator will make available on its internet
website a final executed copy of each Form 10-D filed by the Securities
Administrator. Each party to this Agreement acknowledges that the performance
by
the Master Servicer and the Securities Administrator of its duties under this
Section 5.12(a) related to the timely preparation, execution and filing of
Form
10-D is contingent upon such parties strictly observing all applicable deadlines
in the performance of their duties as set forth in this Agreement. Neither
the
Master Servicer nor the Securities Administrator shall have any liability for
any loss, expense, damage, claim arising out of or with respect to any failure
to properly prepare, execute and/or timely file such Form 10-D, where such
failure results from the Securities Administrator’s inability or failure to
obtain or receive, on a timely basis, any information from any other party
hereto needed to prepare, arrange for execution or file such Form 10-D, not
resulting from its own negligence, bad faith or willful misconduct.
Each
of
Form 10-D and Form 10-K requires the registrant to indicate (by checking “yes”
or “no”) that it “(1) has filed all reports required to be filed by Section 13
or 15(d) of the Exchange Act during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has
been
subject to such filing requirements for the past 90 days.” The Depositor hereby
represents to the Securities Administrator that the Depositor has filed all
such
required reports during the preceding 12 months and that it has been subject
to
such filing requirement for the past 90 days. The Depositor shall notify the
Securities Administrator in writing, no later than the fifth calendar day after
the related Distribution Date with respect to the filing of a report on Form
10-D and no later than March 15th
with
respect to the filing of a report on Form 10-K, if the answer to the questions
should be “no.” The Securities Administrator shall be entitled to rely on such
representations in preparing, executing and/or filing any such
report.
(b) (i)For
so
long as the Trust Fund is subject to Exchange Act reporting requirements, within
four (4) Business Days after the occurrence of an event set forth on Exhibit
N
hereto or such other event requiring disclosure on Form 8-K (each such event,
a
“Reportable
Event”),
or if
requested by the Depositor, and subject to receipt of such information by the
Securities Administrator from the entity indicated on Exhibit N as the
responsible party for providing that information, the Securities Administrator
shall prepare and file on behalf of the Trust Fund any Form 8-K, as required
by
the Exchange Act, provided
that the
Depositor shall file the initial Form 8-K in connection with the issuance of
the
Certificates. Any disclosure or information related to a Reportable Event or
that is otherwise required to be included on Form 8-K other than the initial
Form 8-K (“Form
8-K Disclosure Information”)
shall
be reported by the parties set forth on Exhibit
N
to the
Depositor and the Securities Administrator and directed and approved by the
Depositor pursuant to the following paragraph and the Securities Administrator
will have no duty or liability for any failure hereunder to determine or prepare
any Form 8-K Disclosure Information or any Form 8-K, except as set forth in
the
next paragraph.
(ii) As
set
forth on Exhibit N hereto, for so long as the Trust is subject to the Exchange
Act reporting requirements, no later than the close of business (New York City
time) on the second (2nd) Business Day after the occurrence of a Reportable
Event (i) the parties to this transaction shall be required to provide to the
Securities Administrator and to the Depositor, to the extent known by a
responsible officer thereof, in XXXXX-compatible form, or in such other form
as
otherwise agreed upon by the Securities Administrator and such party, the form
and substance of any Form 8-K Disclosure Information, if applicable, together
with an Additional Disclosure Notification and (ii) the Depositor will approve,
as to form and substance, or disapprove, as the case may be, the inclusion
of
the Form 8-K Disclosure Information. The Depositor will be responsible for
any
reasonable fees and expenses assessed or incurred by the Securities
Administrator in connection with including any Form 8-K Disclosure Information
on Form 8-K pursuant to this paragraph.
(iii) After
preparing the Form 8-K, the Securities Administrator shall forward
electronically a copy of the Form 8-K to the Depositor. Promptly, but no later
than the close of business on the third (3rd) Business Day after the Reportable
Event, the Depositor shall notify the Securities Administrator in writing (which
may be furnished electronically) of any changes to or approval of such Form
8-K.
In the absence of receipt of any written changes or approval, the Securities
Administrator shall be entitled to assume that such Form 8-K is in final form
and the Securities Administrator may proceed with the execution and filing
of
the Form 8-K. A duly authorized representative of the Master Servicer shall
sign
each Form 8-K. If a Form 8-K cannot be filed on time or if a previously filed
Form 8-K needs to be amended, the Securities Administrator will follow the
procedures set forth in Section 5.12(c)(ii). Promptly (but no later than 1
Business Day) after filing with the Commission, the Securities Administrator
will, make available on its internet website a final executed copy of each
Form
8-K that it has filed. The parties to this Agreement acknowledge that the
performance by the Master Servicer and the Securities Administrator of its
duties under this Section 5.12(b) related to the timely preparation, execution
and filing of Form 8-K is contingent upon such parties strictly observing all
applicable deadlines in the performance of their duties under this Agreement.
Neither the Master Servicer nor the Securities Administrator shall have any
liability for any loss, expense, damage, claim arising out of or with respect
to
any failure to properly prepare, execute and/or timely file such Form 8-K,
where
such failure results from the Securities Administrator’s inability or failure to
obtain or receive, on a timely basis, any information from any other party
hereto needed to prepare, arrange for execution or file such Form 8-K, not
resulting from its own negligence, bad faith or willful misconduct.
(c) (i)On
or
prior to January 30 of the first year in which the Securities Administrator
is
able to do so under applicable law, the Securities Administrator shall prepare
and file a Form 15 Suspension Notification relating to the automatic suspension
of reporting in respect of the Trust Fund under the Exchange Act.
(ii) In
the
event that the Securities Administrator is unable to timely file with the
Commission all or any required portion of any Form 8-K, 10-D or 10-K required
to
be filed by this Agreement because required disclosure information was either
not delivered to it or delivered to it after the delivery deadlines set forth
in
this Agreement or for any other reason, the Securities Administrator will
promptly notify electronically the Depositor. In the case of Form 10-D and
10-K,
the parties to this Agreement will cooperate to prepare and file a Form 12b-25
and a 10-D/A and 10-K/A as applicable, pursuant to Rule 12b-25 of the Exchange
Act. In the case of Form 8-K, the Securities Administrator will, upon receipt
of
all required Form 8-K Disclosure Information and upon the approval and direction
of the Depositor, include such disclosure information on the next Form 10-D.
In
the event that any previously filed Form 8-K, 10-D or 10-K needs to be amended
in connection with any Additional Form 10-D Disclosure (other than for the
purpose of restating any monthly report), Additional Form 10-K Disclosure or
Form 8-K Disclosure Information, the Securities Administrator will
electronically notify the Depositor and such other parties to the transaction
as
are affected by such amendment, and such parties will cooperate to prepare
any
necessary 8-K/A, 10-D/A or 10-K/A. Any Form 15, Form 12b-25 or any amendment
to
Form 8-K, 10-D or 10-K shall be signed by a duly authorized representative,
or
senior officer in charge of master servicing, as applicable, of the Master
Servicer. The parties to this Agreement acknowledge that the performance by
the
Master Servicer and the Securities Administrator of its duties under this
Section 5.12(c) related to the timely preparation, execution and filing of
Form
15, a Form 12b-25 or any amendment to Form 8-K, 10-D or 10-K is contingent
upon
each such party performing its duties under this Section. Neither the Master
Servicer nor the Securities Administrator shall have any liability for any
loss,
expense, damage, claim arising out of or with respect to any failure to properly
prepare, execute and/or timely file any such Form 15, Form 12b-25 or any
amendments to Forms 8-K, 10-D or 10-K, where such failure results from the
Securities Administrator’s inability or failure to obtain or receive, on a
timely basis, any information from any other party hereto needed to prepare,
arrange for execution or file such Form 15, Form 12b-25 or any amendments to
Forms 8-K, 10-D or 10-K, not resulting from its own negligence, bad faith or
willful misconduct.
(d) (i)For
so
long as the trust is subject to Exchange Act reporting requirements, within
ninety (90) days after the end of each calendar year or such earlier date as
may
be required by the Exchange Act (the “10-K
Filing Deadline”),
(it
being understood that the fiscal year for the trust ends on December 31 of
each
year) commencing in March 2007, the Securities Administrator shall prepare
and
file on behalf of the Trust Fund a Form 10-K, in form and substance as required
by the Exchange Act. Each such Form 10-K shall include the following items,
in
each case to the extent they have been delivered to the Securities Administrator
within the applicable time frames set forth in this Agreement, (i) an annual
compliance statement for each Servicing Function Participant (other than the
Custodian), as described under Section 3.13, (ii)(A) the annual reports on
assessment of compliance with servicing criteria for each Servicing Function
Participant, as described under Section 3.14 and the Custodial Agreement, and
(B) if any Servicing Function Participant’s report on assessment of compliance
with servicing criteria described under Section 3.14 identifies any material
instance of noncompliance, disclosure identifying such instance of
noncompliance, or if any Servicing Function Participant’s report on assessment
of compliance with servicing criteria described under Section 3.14 is not
included as an exhibit to such Form 10-K, disclosure that such report is not
included and an explanation why such report is not included, (iii)(A) the
registered public accounting firm attestation report for each Servicing Function
Participant, as described under Section 3.14, and (B) if any registered public
accounting firm attestation report described under Section 3.14 identifies
any
material instance of noncompliance, disclosure identifying such instance of
noncompliance, or if any such registered public accounting firm attestation
report is not included as an exhibit to such Form 10-K, disclosure that such
report is not included and an explanation why such report is not included,
and
(iv) a Xxxxxxxx-Xxxxx Certification as described in Section 3.18. Any disclosure
or information in addition to (i) through (iv) above that is required to be
included on Form 10-K as set forth on Exhibit N under Form 10-K (“Additional
Form 10-K Disclosure”)
shall
be reported to the Depositor and the Securities Administrator by the parties
set
forth on Exhibit N, and shall be approved by the Depositor pursuant to the
following paragraph. The Securities Administrator will have no duty or liability
for any failure hereunder to determine or prepare any Additional Form 10-K
Disclosure, except as set forth in the next paragraph.
(ii) As
set
forth on Exhibit N hereto, no later than March 15 of each year that the Trust
is
subject to the Exchange Act reporting requirements, commencing in 2007, (i)
each
Transaction Party shall be required to provide to the Securities Administrator
and to the Depositor, to the extent known by a responsible officer thereof,
in
XXXXX-compatible form, or in such other form as otherwise agreed upon by the
Securities Administrator and such party, the form and substance of any
Additional Form 10-K Disclosure, if applicable, together with an Additional
Disclosure Notification and (ii) the Depositor will approve, as to form and
substance, or disapprove, as the case may be, the inclusion of the Additional
Form 10-K Disclosure on Form 10-K. The Depositor will be responsible for any
reasonable fees and expenses assessed or incurred by the Securities
Administrator in connection with including any Additional Form 10-K Disclosure
on Form 10-K pursuant to this paragraph.
(iii) After
preparing the Form 10-K, the Securities Administrator shall, upon request,
forward electronically a copy of the Form 10-K to the Depositor. Within three
(3) Business Days after receipt of such copy, but no later than March 25th,
the
Depositor shall notify the Securities Administrator in writing (which may be
furnished electronically) of any changes to or approval of such Form 10-K.
In
the absence of receipt of any written changes or approval, or if the Depositor
does not request a copy of a Form 10-D, the Securities Administrator shall
be
entitled to assume that such Form 10-K is in final form and the Securities
Administrator may proceed with the execution and filing of the Form 10-K. A
senior officer of the Master Servicer in charge of the master servicing function
shall sign the Form 10-K. If a Form 10-K cannot be filed on time or if a
previously filed Form 10-K needs to be amended, the Securities Administrator
will follow the procedures set forth in Section 5.12(c)(ii). Promptly (but
no
later than one (1) Business Day) after filing with the Commission, the
Securities Administrator will make available on its internet website a final
executed copy of each Form 10-K to be filed by the Securities Administrator.
The
parties to this Agreement acknowledge that the performance by the Master
Servicer and the Securities Administrator of its duties under this Section
5.12(d) related to the timely preparation, execution and filing of Form 10-K
is
contingent upon such parties (and any Servicing Function Participant) strictly
observing all applicable deadlines in the performance of their duties under
this
Section 5.12(d), Section 3.13, Section 3.14 and Section 3.18. Neither the Master
Servicer nor the Securities Administrator shall have any liability for any
loss,
expense, damage or claim arising out of or with respect to any failure to
properly prepare and/or timely file such Form 10-K, where such failure results
from the Securities Administrator’s inability or failure to obtain or receive,
on a timely basis, any information from any other party hereto needed to
prepare, arrange for execution or file such Form 10-K, not resulting from its
own negligence, bad faith or willful misconduct.
(e) On
each
Distribution Date, the Securities Administrator will calculate the PMI Threshold
Percentage based on information provided by the Servicer and the PMI Insurer.
The PMI Threshold Percentage will be included in the statement to
Certificateholders prepared and made available by the Securities Administrator
pursuant to Section 5.07 of this Agreement. The Depositor will be obligated
to
provide to the Securities Administrator any financial statements of or other
information relating to the PMI Insurer that may be required to be included
in
any Form 10-D, Form 8-K or Form 10-K or written notification instructing the
Securities Administrator that such Additional Disclosure is not necessary for
such Distribution Date. The Depositor shall be responsible for any reasonable
fees and expenses assessed or incurred by the Securities Administrator in
connection with including any Additional Disclosure information pursuant to
this
Section.
(f) The
Master Servicer, the Depositor, the Custodian, the Sponsor and Securities
Administrator shall indemnify and hold harmless the Depositor, the Trustee
and
their respective officers, directors and Affiliates from and against any losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal fees
and
related costs, judgments and other costs and expenses arising out of or based
upon a breach of such party’s obligations under this Section 5.12 or such
party’s negligence, bad faith or willful misconduct in connection therewith.
Notwithstanding
the provisions of Section 11.01, this Section 5.12 may be amended without the
consent of the Certificateholders.
Any
notice required to be delivered by the Securities Administrator to the Depositor
pursuant to this Sections 3.13, 3.14, 3.18 or 5.12 shall be delivered by the
Securities Administrator by facsimile and electronic mail to Xxxxxx Xxxx, Esq.
at (000) 000-0000 and xxxxx@xx.xxxxxx.xxx,
with a
copy to Xxxx Xxxxxx at (000) 000-0000 and xxxxxxx@xx.xxxxxx.xxx
and a
copy to N. Xxxxx XxXxxxx at (000) 000-0000 and xxxxxxxx@xx.xxxxxx.xxx.
ARTICLE
VI
THE
CERTIFICATES
Section
6.01 The
Certificates.
(a) The
Certificates shall be substantially in the forms attached hereto as Exhibits
A-1
through A-5. The Certificates shall be issuable in registered form, in the
minimum dollar denominations, integral dollar multiples in excess thereof
(except that one Certificate of each Class may be issued in a different amount
which must be in excess of the applicable minimum dollar denomination) and
aggregate dollar denominations as set forth in the following table:
|
Class
|
Minimum
Denomination
|
Integral
Multiple in Excess of Minimum
|
Original
Certificate Principal Balance
|
Pass-Through
Rate
|
|
A-1
|
$ 25,000
|
$1
|
$ 133,955,000
|
Class
A-1 Pass-Through Rate
|
|
A-2
|
$ 25,000
|
$1
|
$
28,480,000
|
Class
A-2 Pass-Through Rate
|
|
A-3
|
$ 25,000
|
$1
|
$
37,886,000
|
Class
A-3 Pass-Through Rate
|
|
A-4
|
$ 25,000
|
$1
|
$
50,423,000
|
Class
A-4 Pass-Through Rate
|
|
A-5
|
$ 25,000
|
$1
|
$
26,149,000
|
Class
A-5 Pass-Through Rate
|
|
A-6
|
$ 25,000
|
$1
|
$
30,670,000
|
Class
A-6 Pass-Through Rate
|
|
M-1
|
$ 25,000
|
$1
|
$
11,764,000
|
Class
M-1 Pass-Through Rate
|
|
M-2
|
$ 25,000
|
$1
|
$
10,400,000
|
Class
M-2 Pass-Through Rate
|
|
M-3
|
$ 25,000
|
$1
|
$
5,967,000
|
Class
M-3 Pass-Through Rate
|
|
M-4
|
$ 25,000
|
$1
|
$
3,410,000
|
Class
M-4 Pass-Through Rate
|
|
P
|
$
1
|
$1
|
$
100.00
|
N/A
|
|
X
|
$
1
|
$1
|
$
|
Class
X Pass-Through Rate
|
|
R
|
N/A
|
N/A
|
N/A
|
N/A
|
Upon
original issue, the Certificates shall be executed and authenticated by the
Securities Administrator and delivered by the Trustee to and upon the written
order of the Depositor. The Certificates shall be executed by manual or
facsimile signature on behalf of the Trust Fund by the Securities Administrator
by an authorized signatory. Certificates bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the
Securities Administrator shall bind the Trust, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Certificates or did not hold such offices
at
the date of such Certificates. No Certificate shall be entitled to any benefit
under this Agreement or be valid for any purpose, unless there appears on such
Certificate a certificate of authentication substantially in the form provided
herein executed by the Securities Administrator by manual signature, and such
certificate of authentication shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their
authentication.
The
Depositor shall provide, or cause to be provided, to the Securities
Administrator on a continuous basis, an adequate inventory of Certificates
to
facilitate transfers.
(b) The
Class
X Certificates and Class P Certificates offered and sold to Qualified
Institutional Buyers in reliance on Rule 144A under the Securities Act (“Rule
144A”) will be issued in the form of Definitive Certificates.
Section
6.02 Certificate
Register; Registration of Transfer and Exchange of Certificates.
(a) The
Securities Administrator shall maintain, or cause to be maintained in accordance
with the provisions of Section 6.09, a Certificate Register for the
Certificates in which, subject to the provisions of subsections (b) and (c)
below and to such reasonable regulations as it may prescribe, the Securities
Administrator shall provide for the registration of Certificates and of
Transfers and exchanges of Certificates as herein provided. Upon surrender
for
registration of Transfer of any Certificate, the Securities Administrator shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Certificates of the same Class and of like
aggregate Percentage Interest.
At
the
option of a Certificateholder, Certificates may be exchanged for other
Certificates of the same Class in authorized denominations and evidencing the
same aggregate Percentage Interest upon surrender of the Certificates to be
exchanged at the office or agency of the Securities Administrator. Whenever
any
Certificates are so surrendered for exchange, the Securities Administrator
shall
execute, authenticate, and deliver the Certificates that the Certificateholder
making the exchange is entitled to receive. Every Certificate presented or
surrendered for registration of Transfer or exchange shall be accompanied by
a
written instrument of Transfer in form satisfactory to the Securities
Administrator duly executed by the holder thereof or his attorney duly
authorized in writing.
No
service charge to the Certificateholders shall be made for any registration
of
Transfer or exchange of Certificates, but payment of a sum sufficient to cover
any tax or governmental charge that may be imposed in connection with any
Transfer or exchange of Certificates may be required.
All
Certificates surrendered for registration of Transfer or exchange shall be
canceled and subsequently destroyed by the Securities Administrator in
accordance with the Securities Administrator’s customary
procedures.
(b) No
Transfer of a Private Certificate shall be made unless such Transfer is made
pursuant to an effective registration statement under the Securities Act and
any
applicable state securities laws or is exempt from the registration requirements
under the Securities Act and such state securities laws. In the event that
a
Transfer is to be made in reliance upon an exemption from the Securities Act
and
such laws, in order to assure compliance with the Securities Act and such laws,
the Certificateholder desiring to effect such Transfer and such
Certificateholder’s prospective transferee shall each certify to the Securities
Administrator in writing the facts surrounding the Transfer in substantially
the
forms set forth in Exhibit E (the “Transferor Certificate”) and (x) deliver a
letter in substantially the form of either Exhibit F (the “Investment Letter”)
or Exhibit G (the “Rule 144A Letter”) or (y) there shall be delivered to the
Securities Administrator an Opinion of Counsel, at the expense of the
transferor, that such Transfer may be made pursuant to an exemption from the
Securities Act, which Opinion of Counsel shall not be an expense of the
Depositor, the Sponsor, the Securities Administrator, the Trustee or the Trust
Fund. The Depositor shall provide to any Holder of a Private Certificate and
any
prospective transferee designated by any such Holder, information regarding
the
related Certificates and the Mortgage Loans and such other information as shall
be necessary to satisfy the condition to eligibility set forth in Rule
144A(d)(4) for Transfer of any such Certificate without registration thereof
under the Securities Act pursuant to the registration exemption provided by
Rule
144A. The Securities Administrator shall cooperate with the Depositor in
providing the Rule 144A information referenced in the preceding sentence,
including providing to the Depositor such information regarding the
Certificates, the Mortgage Loans and other matters regarding the Trust Fund
as
the Depositor shall reasonably request to meet its obligation under the
preceding sentence. Each Holder of a Private Certificate desiring to effect
such
Transfer shall, and does hereby agree to, indemnify the Securities
Administrator, the Depositor and the Sponsor against any liability that may
result if the Transfer is not so exempt or is not made in accordance with such
federal and state laws.
No
Transfer of an ERISA Restricted Certificate shall be made unless the Securities
Administrator shall have received either (i) a representation from the
transferee of such Certificate acceptable to and in form and substance
satisfactory to the Securities Administrator to the effect that such transferee
is not an employee benefit plan subject to Section 406 of ERISA and/or a
plan subject to Section 4975 of the Code, or a Person acting on behalf of
any such plan or using the assets of any such plan, or (ii) in the case of
any
such ERISA Restricted Certificate presented for registration in the name of
an
employee benefit plan subject to ERISA, or a plan subject to Section 4975
of the Code (or comparable provisions of any subsequent enactments), or a
trustee of any such plan or any other person acting on behalf of any such plan,
an Opinion of Counsel satisfactory to the Securities Administrator for the
benefit of the Securities Administrator, the Depositor and the Servicer and
on
which they may rely to the effect that the purchase and holding of such ERISA
Restricted Certificate is permissible under applicable law, will not result
in
any prohibited transactions under ERISA or Section 4975 of the Code and
will not subject the Securities Administrator, the Depositor or any Servicer
to
any obligation in addition to those expressly undertaken in this Agreement,
which Opinion of Counsel shall not be an expense of the Securities
Administrator, the Depositor or any Servicer. Notwithstanding anything else
to
the contrary herein, any purported transfer of an ERISA Restricted Certificate
to or on behalf of an employee benefit plan subject to Section 406 of ERISA
and/or a plan subject to Section 4975 of the Code other than in compliance
with the foregoing shall be void and of no effect; provided that the restriction
set forth in this sentence shall not be applicable if there has been delivered
to the Securities Administrator an Opinion of Counsel meeting the requirements
of clause (ii) of the first sentence of this paragraph. The Securities
Administrator shall not be under any liability to any Person for any
registration of transfer of any ERISA Restricted Certificate that is in fact
not
permitted by this Section 6.02(b) or for making any payments due on such
Certificate to the Holder thereof or taking any other action with respect to
such Holder under the provisions of this Agreement. The Securities Administrator
shall be entitled, but not obligated, to recover from any Holder of any ERISA
Restricted Certificate that was in fact an employee benefit plan subject to
Section 406 of ERISA or a plan subject to Section 4975 of the Code or
a Person acting on behalf of any such plan at the time it became a Holder or,
at
such subsequent time as it became such a plan or Person acting on behalf of
such
a plan, all payments made on such ERISA Restricted Certificate at and after
either such time. Any such payments so recovered by the Securities Administrator
shall be paid and delivered by the Securities Administrator to the last
preceding Holder of such Certificate that is not such a plan or Person acting
on
behalf of a plan.
Each
beneficial owner of a Mezzanine Certificate or Subordinate Certificate or any
interest therein shall be deemed to have represented, by virtue of its
acquisition or holding of that certificate or interest therein, that either
(i)
it is not a Plan or investing with “Plan Assets”, (ii) it has acquired and is
holding such certificate in reliance on the Exemption, and that it understands
that there are certain conditions to the availability of the Exemption,
including that the certificate must be rated, at the time of purchase, not
lower
than “BBB-“ (or its equivalent) by S&P or Xxxxx’x, and the certificate is so
rated or (iii) (1) it is an insurance company, (2) the source of funds used
to
acquire or hold the certificate or interest therein is an “insurance company
general account,” as such term is defined in Prohibited Transaction Class
Exemption (“PTCE”) 95-60 and (3) the conditions in Sections I and III of PTCE
95-60 have been satisfied.
(c) (i)
Each
Person who has or who acquires any Ownership Interest in a Residual Certificate
shall be deemed by the acceptance or acquisition of such Ownership Interest
to
have agreed to be bound by the following provisions, and the rights of each
Person acquiring any Ownership Interest in a Residual Certificate are expressly
subject to the following provisions:
(A) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall be a Permitted Transferee and shall promptly notify the Securities
Administrator of any change or impending change in its status as a Permitted
Transferee.
(B) In
connection with any proposed Transfer of any Ownership Interest in a Residual
Certificate, the Securities Administrator shall require delivery to it, and
shall not register the Transfer of any Residual Certificate until its receipt
of, an affidavit and agreement (a “Transfer Affidavit and Agreement,” in the
form attached hereto as Exhibit D) from the proposed Transferee, in form and
substance satisfactory to the Securities Administrator, representing and
warranting, among other things, that such Transferee is a Permitted Transferee,
that it is not acquiring its Ownership Interest in the Residual Certificate
that
is the subject of the proposed Transfer as a nominee, trustee or agent for
any
Person that is not a Permitted Transferee, that for so long as it retains its
Ownership Interest in a Residual Certificate, it will endeavor to remain a
Permitted Transferee, and that it has reviewed the provisions of this
Section 6.02(d) and agrees to be bound by them.
(C) Notwithstanding
the delivery of a Transfer Affidavit and Agreement by a proposed Transferee
under clause (B) above, if an authorized officer of the Securities Administrator
who is assigned to this transaction has actual knowledge that the proposed
Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest
in a Residual Certificate to such proposed Transferee shall be
effected.
(D) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall agree (x) to require a Transfer Affidavit and Agreement from any other
Person to whom such Person attempts to transfer its Ownership Interest in a
Residual Certificate and (Y) not to transfer its Ownership Interest unless
it
provides a Transferor Affidavit (in the form attached hereto as Exhibit E)
to
the Securities Administrator stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee.
(E) Each
Person holding or acquiring an Ownership Interest in a Residual Certificate,
by
purchasing an Ownership Interest in such Certificate, agrees to give the
Securities Administrator written notice that it is a “pass-through interest
holder” within the meaning of temporary Treasury regulation
Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership
Interest in a Residual Certificate, if it is, or is holding an Ownership
Interest in a Residual Certificate on behalf of, a “pass-through interest
holder.”
(ii) The
Securities Administrator will register the Transfer of any Residual Certificate
only if it shall have received the Transfer Affidavit and Agreement and all
of
such other documents as shall have been reasonably required by the Securities
Administrator as a condition to such registration. In addition, no Transfer
of a
Residual Certificate shall be made unless the Securities Administrator shall
have received a representation letter from the Transferee of such Certificate
to
the effect that such Transferee is a Permitted Transferee.
(iii) (A)
If any
purported Transferee shall become a Holder of a Residual Certificate in
violation of the provisions of this Section 6.02(d), then the last
preceding Permitted Transferee shall be restored, to the extent permitted by
law, to all rights as holder thereof retroactive to the date of registration
of
such Transfer of such Residual Certificate. The Securities Administrator shall
be under no liability to any Person for any registration of Transfer of a
Residual Certificate that is in fact not permitted by this Section 6.02(d)
or for making any payments due on such Certificate to the holder thereof or
for
taking any other action with respect to such holder under the provisions of
this
Agreement.
(B) If
any
purported Transferee shall become a holder of a Residual Certificate in
violation of the restrictions in this Section 6.02(d) and to the extent
that the retroactive restoration of the rights of the holder of such Residual
Certificate as described in clause (iii)(A) above shall be invalid, illegal
or
unenforceable, then the Securities Administrator shall have the right, without
notice to the holder or any prior holder of such Residual Certificate, to sell
such Residual Certificate to a purchaser selected by the Securities
Administrator on such terms as the Securities Administrator may choose. Such
purported Transferee shall promptly endorse and deliver each Residual
Certificate in accordance with the instructions of the Securities Administrator.
Such purchaser may be the Securities Administrator itself or any Affiliate
of
the Securities Administrator. The proceeds of such sale, net of the commissions
(which may include commissions payable to the Securities Administrator or its
Affiliates), expenses and taxes due, if any, will be remitted by the Securities
Administrator to such purported Transferee. The terms and conditions of any
sale
under this clause (iii)(B) shall be determined in the sole discretion of the
Securities Administrator, and the Securities Administrator shall not be liable
to any Person having an Ownership Interest in a Residual Certificate as a result
of its exercise of such discretion.
(iv) The
Securities Administrator shall make available to the Internal Revenue Service
and those Persons specified by the REMIC Provisions all information necessary
to
compute any tax imposed (A) as a result of the Transfer of an Ownership Interest
in a Residual Certificate to any Person who is a Disqualified Organization,
including the information described in Treasury regulations sections
1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the “excess inclusions” of
such Residual Certificate and (B) as a result of any regulated investment
company, real estate investment trust, common trust fund, partnership, trust,
estate or organization described in Section 1381 of the Code that holds an
Ownership Interest in a Residual Certificate having as among its record holders
at any time any Person which is a Disqualified Organization. Reasonable
compensation for providing such information may be charged or collected by
the
Securities Administrator.
(v) The
provisions of this Section 6.02(d) set forth prior to this subsection (v)
may be modified, added to or eliminated, provided that there shall have been
delivered to the Securities Administrator at the expense of the party seeking
to
modify, add to or eliminate any such provision the following:
(A) written
notification from each Rating Agency to the effect that the modification,
addition to or elimination of such provisions will not cause such Rating Agency
to downgrade its then-current ratings of any Class of Certificates;
and
(B) an
Opinion of Counsel, in form and substance satisfactory to the Securities
Administrator, to the effect that such modification of, addition to or
elimination of such provisions will not cause any REMIC to cease to qualify
as a
REMIC and will not cause any REMIC, as the case may be, to be subject to an
entity-level tax caused by the Transfer of any Residual Certificate to a Person
that is not a Permitted Transferee or a Person other than the prospective
transferee to be subject to a REMIC-tax caused by the Transfer of a Residual
Certificate to a Person that is not a Permitted Transferee.
(d) Subject
to the preceding subsections, upon surrender for registration of transfer of
any
Certificate at any office or agency of the Securities Administrator maintained
for such purpose pursuant to Section 9.11, the Securities Administrator
shall execute, authenticate and deliver, in the name of the designated
Transferee or Transferees, one or more new Certificates of the same Class of
a
like aggregate Percentage Interest.
(e) At
the
option of the Holder thereof, any Certificate may be exchanged for other
Certificates of the same Class with authorized denominations and a like
aggregate Percentage Interest, upon surrender of such Certificate to be
exchanged at any office or agency of the Securities Administrator maintained
for
such purpose pursuant to Section 9.11. Whenever any Certificates are so
surrendered for exchange, the Securities Administrator shall execute,
authenticate and deliver, the Certificates which the Certificateholder making
the exchange is entitled to receive. Every Certificate presented or surrendered
for transfer or exchange shall (if so required by the Securities Administrator)
be duly endorsed by, or be accompanied by a written instrument of transfer
in
the form satisfactory to the Securities Administrator duly executed by, the
Holder thereof or his attorney duly authorized in writing. In addition, with
respect to the Class R Certificate, the holder thereof may exchange, in the
manner described above, such Class R Certificate for two separate certificates,
each representing such holder's respective Percentage Interest in the Class
R-1
Interest and the Class R-2 Interest, respectively, in each case that was
evidenced by the Class R Certificate being exchanged.
(f) No
service charge to the Certificateholders shall be made for any transfer or
exchange of Certificates, but the Securities Administrator may require payment
of a sum sufficient to cover any tax or governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
(g) The
preparation and delivery of all certificates and opinions referred to above
in
this Section 6.02 shall not be an expense of the Trust Fund, the Securities
Administrator, the Depositor or the Sponsor.
(h) All
Certificates surrendered for transfer and exchange shall be canceled and
destroyed by the Securities Administrator in accordance with its customary
procedures.
Section
6.03 Mutilated,
Destroyed, Lost or Stolen Certificates.
If
(a)
any mutilated Certificate is surrendered to the Securities Administrator, or
the
Securities Administrator receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate and of the ownership thereof
and
(b) there is delivered to the Securities Administrator such security or
indemnity as may be required by them to save each of them harmless, then, in
the
absence of notice to the Securities Administrator that such Certificate has
been
acquired by a bona fide purchaser, the Securities Administrator shall execute,
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like Class, tenor
and Percentage Interest. In connection with the issuance of any new Certificate
under this Section 6.03, the Securities Administrator may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Securities Administrator) connected therewith. Any
replacement Certificate issued pursuant to this Section 6.03 shall
constitute complete and indefeasible evidence of ownership in the Trust Fund,
as
if originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time. All Certificates surrendered to the Securities
Administrator under the terms of this Section 6.03 shall be canceled and
destroyed by the Securities Administrator in accordance with its standard
procedures without liability on its part.
Section
6.04 Persons
Deemed Owners.
The
Depositor, the Servicer, the Trustee, the Master Servicer, the Securities
Administrator and any of their agents may treat the person in whose name any
Certificate is registered as the owner of such Certificate for the purpose
of
receiving distributions as provided in this Agreement and for all other purposes
whatsoever, and none of the Depositor, the Servicer, the Trustee, the Master
Servicer, the Securities Administrator nor any of their agents shall be affected
by any notice to the contrary.
Section
6.05 Access
to List of Certificateholders’ Names and Addresses.
If
three
or more Certificateholders (a) request such information in writing from the
Securities Administrator, (b) state that such Certificateholders desire to
communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates, and (c) provide a copy of the
communication that such Certificateholders propose to transmit or if the
Depositor shall request such information in writing from the Securities
Administrator, then the Securities Administrator shall, within ten Business
Days
after the receipt of such request, provide the Depositor or such
Certificateholders at such recipients’ expense the most recent list of the
Certificateholders of the Trust Fund held by the Securities Administrator,
if
any. The Depositor and every Certificateholder, by receiving and holding a
Certificate, agree that the Securities Administrator shall not be held
accountable by reason of the disclosure of any such information as to the list
of the Certificateholders hereunder, regardless of the source from which such
information was derived.
Section
6.06 Book-Entry
Certificates.
The
Regular Certificates, upon original issuance, shall be issued in the form of
one
or more typewritten Certificates representing the Book- Entry Certificates,
to
be delivered to the Depository by or on behalf of the Depositor. Such
Certificates shall initially be registered on the Certificate Register in the
name of the Depository or its nominee, and no Certificate Owner of such
Certificates will receive a definitive certificate representing such Certificate
Owner’s interest in such Certificates, except as provided in Section 6.08.
Unless and until definitive, fully registered Certificates (“Definitive
Certificates”) have been issued to the Certificate Owners of such Certificates
pursuant to Section 6.08:
(a) the
provisions of this Section shall be in full force and effect;
(b) the
Depositor and the Securities Administrator may deal with the Depository and
the
Depository Participants for all purposes (including the making of distributions)
as the authorized representative of the respective Certificate Owners of such
Certificates;
(c) registration
of the Book-Entry Certificates may not be transferred by the Securities
Administrator except to another Depository;
(d) the
rights of the respective Certificate Owners of such Certificates shall be
exercised only through the Depository and the Depository Participants and shall
be limited to those established by law and agreements between the Owners of
such
Certificates and the Depository and/or the Depository Participants. Pursuant
to
the Depository Agreement, unless and until Definitive Certificates are issued
pursuant to Section 6.08, the Depository will make book-entry transfers
among the Depository Participants and receive and transmit distributions of
principal and interest on the related Certificates to such Depository
Participants;
(e) the
Depository may collect its usual and customary fees, charges and expenses from
its Depository Participants;
(f) the
Depositor, the Servicer, the Trustee, the Master Servicer and the Securities
Administrator may rely and shall be fully protected in relying upon information
furnished by the Depository with respect to its Depository Participants;
and
(g) to
the
extent that the provisions of this Section conflict with any other
provisions of this Agreement, the provisions of this Section shall
control.
For
purposes of any provision of this Agreement requiring or permitting actions
with
the consent of, or at the direction of, Certificateholders evidencing a
specified percentage of the aggregate unpaid principal amount of any Class
of
Certificates, such direction or consent may be given by Certificate Owners
(acting through the Depository and the Depository Participants) owning
Book-Entry Certificates evidencing the requisite percentage of principal amount
of such Class of Certificates.
Section
6.07 Notices
to Depository.
Whenever
any notice or other communication is required to be given to Certificateholders
of a Class with respect to which Book-Entry Certificates have been issued,
unless and until Definitive Certificates shall have been issued to the related
Certificate Owners, the Securities Administrator shall give all such notices
and
communications to the Depository.
Section
6.08 Definitive
Certificates.
If,
after
Book-Entry Certificates have been issued with respect to any Certificates,
(a)
the Depositor or the Depository advises the Securities Administrator that the
Depository is no longer willing or able to discharge properly its
responsibilities under the Depository Agreement with respect to such
Certificates and the Securities Administrator or the Depositor is unable to
locate a qualified successor, (b) the Depositor, at its sole option, advises
the
Securities Administrator that it elects to terminate the book-entry system
with
respect to such Certificates through the Depository or (c) after the occurrence
and continuation of either of the events described in clauses (a) or (b) above,
Certificate Owners of such Book-Entry Certificates having not less than fifty
one percent (51%) of the Voting Rights evidenced by any Class of Book-Entry
Certificates advise the Securities Administrator and the Depository in writing
through the Depository Participants that the continuation of a book-entry system
with respect to Certificates of such Class through the Depository (or its
successor) is no longer in the best interests of the Certificate Owners of
such
Class, then the Securities Administrator shall notify all Certificate Owners
of
such Certificates, through the Depository, of the occurrence of any such event
and of the availability of Definitive Certificates to applicable Certificate
Owners requesting the same. The Depositor shall provide the Securities
Administrator with an adequate inventory of certificates to facilitate the
issuance and transfer of Definitive Certificates. Upon surrender to the
Securities Administrator of any such Certificates by the Depository, accompanied
by registration instructions from the Depository for registration, the
Securities Administrator shall countersign and deliver such Definitive
Certificates. Neither the Depositor nor the Securities Administrator shall
be
liable for any delay in delivery of such instructions and each may conclusively
rely on, and shall be protected in relying on, such instructions. Upon the
issuance of such Definitive Certificates, all references herein to obligations
imposed upon or to be performed by the Depository shall be deemed to be imposed
upon and performed by the Securities Administrator, to the extent applicable
with respect to such Definitive Certificates and the Securities Administrator
shall recognize the Holders of such Definitive Certificates as
Certificateholders hereunder.
Section
6.09 Maintenance
of Office or Agency.
Certificates
may be surrendered for registration of transfer or exchange at the applicable
Corporate Trust Office of the Securities Administrator. The Securities
Administrator will give prompt written notice to the Certificateholders of
any
change in such location of any such office or agency.
ARTICLE
VII
THE
DEPOSITOR AND THE MASTER SERVICER
Section
7.01 Liabilities
of the Depositor and the Master Servicer.
Each
of
the Depositor and the Master Servicer shall be liable in accordance herewith
only to the extent of the obligations specifically imposed upon and undertaken
by it herein.
Section
7.02 Merger
or Consolidation of the Depositor or the Master Servicer.
(a) Subject
to subsection (b) below, the Depositor will keep in full force and effect its
rights and franchises as a corporation under the laws of the jurisdiction of
its
incorporation. Subject to the following paragraph, the Master Servicer shall
keep in full force and effect its existence, rights and franchises as a
corporation under the laws of the jurisdiction of its formation. The Depositor
and the Master Servicer each will obtain and preserve its qualification to
do
business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage Loans
and to perform its respective duties under this Agreement.
(b) The
Depositor or the Master Servicer may be merged or consolidated, or any person
resulting from any merger or consolidation to which the Depositor or the Master
Servicer shall be a party, or any Person succeeding to the business of the
Depositor or the Master Servicer shall be the successor of the Depositor or
the
Master Servicer hereunder, without the execution or filing of any paper or
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
Section
7.03 Indemnification
of the Depositor and Servicing Function Participants.
(a) The
Depositor agrees to indemnify the Indemnified Persons for, and to hold them
harmless against, any loss, liability or expense (including reasonable legal
fees and disbursements of counsel) incurred on their part that may be sustained
in connection with, arising out of, or relating to, any claim or legal action
(including any pending or threatened claim or legal action) relating to this
Agreement or the Certificates (i) related to the Depositor’s failure to perform
its duties in compliance with this Agreement (except as any such loss, liability
or expense shall be otherwise reimbursable pursuant to this Agreement) or (ii)
incurred by reason of the Depositor’s willful misfeasance, bad faith or gross
negligence in the performance of duties hereunder or by reason of reckless
disregard of obligations and duties hereunder. This indemnity shall survive
the
resignation of and the termination of this Agreement.
(b) [Reserved]
(c) Each
of
the Depositor, Master Servicer, Securities Administrator and any Servicing
Function Participant engaged by such party, respectively, shall indemnify and
hold harmless the Master Servicer, the Securities Administrator, the Trustee
and
the Depositor, respectively, and each of its directors, officers, employees,
agents, and affiliates from and against any and all claims, losses, damages,
penalties, fines, forfeitures, reasonable legal fees and related costs,
judgments and other costs and expenses arising out of or based upon (a) any
breach by such party of any if its obligations hereunder, including particularly
its obligations to provide any Assessment of Compliance, Attestation Report,
Compliance Statement or any information, data or materials required to be
included in any 1934 Act report, (b) any material misstatement or omission
in
any information, data or materials provided by such party (or, in the case
of
the Securities Administrator or Master Servicer, any material misstatement
or
material omission in (i) any Compliance Statement, Assessment of Compliance
or
Attestation Report delivered by it, or by any Servicing Function Participant
engaged by it, pursuant to this Agreement, or (ii) any Additional Form 10-D
Disclosure, Additional Form 10-K Disclosure or Form 8-K Disclosure concerning
the Master Servicer or the Securities Administrator), or (c) the negligence,
bad
faith or willful misconduct of such indemnifying party in connection with its
performance hereunder. If the indemnification provided for in this Section
11.03(e) is unavailable or insufficient to hold harmless the Master Servicer,
the Securities Administrator or the Depositor, as the case may be, then each
such party agrees that it shall contribute to the amount paid or payable by
the
Master Servicer, the Securities Administrator or the Depositor, as applicable,
as a result of any claims, losses, damages or liabilities incurred by such
party
in such proportion as is appropriate to reflect the relative fault of the
indemnified party on the one hand and the indemnifying party on the other.
This
indemnification shall survive the termination of this Agreement or the
termination of any party to this Agreement.
Section
7.04 Limitations
on Liability of the Depositor, Securities Administrator, Master Servicer,
Servicer and Others.
Subject
to the obligation of the Depositor to indemnify the Indemnified Persons pursuant
to Section 7.03 and the Servicer’s indemnification obligations under the
Servicing Agreement:
(a) None
of
the Depositor, the Securities Administrator, the Master Servicer or any of
the
directors, officers, employees or agents of the Depositor, the Securities
Administrator, the Master Servicer and the Servicer shall be under any liability
to the Indemnified Persons, the Trust Fund or the Certificateholders for taking
any action or for refraining from taking any action in good faith pursuant
to
this Agreement or the Servicing Agreement, as applicable, or for errors in
judgment; provided, however, that this provision shall not protect the
Depositor, the Securities Administrator, the Master Servicer or any such Person
against any breach of warranties, representations or covenants made herein
or
under the Servicing Agreement or against any specific liability imposed on
any
such Person pursuant hereto or against any liability which would otherwise
be
imposed by reason of such Person’s willful misfeasance, bad faith or gross
negligence in the performance of duties or by reason of reckless disregard
of
obligations and duties hereunder or under the Servicing Agreement.
(b) The
Depositor, the Securities Administrator, the Master Servicer, the Servicer
and
any director, officer, employee or agent of the Depositor, the Securities
Administrator and the Master Servicer may rely in good faith on any document
of
any kind prima facie properly executed and submitted by any Person respecting
any matters arising hereunder or under the Servicing Agreement.
(c) The
Depositor, the Securities Administrator, the Master Servicer, the Servicer,
the
Trustee, the Custodian and any director, officer, employee or agent of the
Depositor, the Securities Administrator, the Master Servicer, the Servicer,
the
Trustee or the Custodian shall be indemnified by the Trust Fund and held
harmless thereby against any loss, liability or expense (including reasonable
legal fees and disbursements of counsel) incurred on their part that may be
sustained in connection with, arising out of, or relating to this Agreement,
the
Servicing Agreement, the Custodial Agreement or the Certificates (including
any
pending or threatened claim or legal action), other than (i) with respect to
the
Servicer, such loss, liability or expense related to the Servicer’s failure to
perform its duties in compliance with the Servicing Agreement (except as any
such loss, liability or expense shall be otherwise reimbursable pursuant to
this
Agreement) or, with respect to the Custodian, to the Custodian’s failure to
perform its duties under the Custodial Agreement, (ii) with respect to the
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 its duties under the Servicing Agreement or (iii) with respect to the
Custodian, any such loss, liability or expense incurred by reason of the
Custodian’s willful misfeasance, bad faith or gross negligence in the
performance of its duties hereunder.
(d) The
Depositor, the Securities Administrator, the Servicer or the Master Servicer
shall not be under any obligation to appear in, prosecute or defend any legal
action that is not incidental to its duties under this Agreement or the
Servicing Agreement and that in its opinion may involve it in any expense or
liability; provided, however, that each of the Depositor, the Securities
Administrator, the Servicer and the Master Servicer may in its discretion,
undertake any such action which it may deem necessary or desirable with respect
to this Agreement and the Servicing Agreement and the rights and duties of
the
parties hereto and the interests of the Certificateholders hereunder and under
the Servicing Agreement. In such event, the legal expenses and costs of such
action and any liability resulting therefrom (except any loss, liability or
expense incurred by reason of willful misfeasance, bad faith or gross negligence
in the performance of duties hereunder or under the Servicing Agreement or
by
reason of reckless disregard of obligations and duties hereunder or under the
Servicing Agreement) shall be expenses, costs and liabilities of the Trust
Fund,
and the Depositor, the Securities Administrator, the Servicer and the Master
Servicer shall be entitled to be reimbursed therefor out of the Distribution
Account as provided by Section 3.27 or Section 3.32, as applicable. Nothing
in this Subsection 7.04(d) shall affect the Master Servicer’s obligation to take
such actions as are necessary to ensure the servicing and administration of
the
Mortgage Loans pursuant to this Agreement.
(e) In
taking
or recommending any course of action pursuant to this Agreement, unless
specifically required to do so pursuant to this Agreement, the Trustee shall
not
be required to investigate or make recommendations concerning potential
liabilities which the Trust 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 Master Servicer,
Servicer, the Depositor or the Custodian.
Section
7.05 Reserved.
Section
7.06 Appointment
of Special Servicer.
The
Sponsor may, at its option, appoint a special servicer with respect to certain
of the Mortgage Loans. The Sponsor and the Servicer shall negotiate in good
faith with any proposed special servicer with respect to the duties and
obligations of such special servicer with respect to any such Mortgage Loan.
Any
Subservicing Agreement shall contain terms and provisions not inconsistent
with
this Agreement and the Servicing Agreement and shall obligate the special
servicer to service such Mortgage Loans in accordance with standard of care
set
forth in the Servicing Agreement. The fee payable to the special servicer for
the performance of such duties and obligations will paid from the Servicing
Fee
collected by the Servicer with respect to each such Mortgage Loan and will
be
remitted to such special servicer by the Servicer.
Section
7.07 Limitation
on Resignation of the Master Servicer.
The
Master Servicer shall not resign from the obligations and duties hereby imposed
on it except upon determination that its duties hereunder are no longer
permissible under applicable law. Any such determination pursuant to the
preceding sentence permitting the resignation of the Master Servicer shall
be
evidenced by an Opinion of Counsel to such effect obtained at the expense of
the
Master Servicer and delivered to the Trustee and the Rating Agencies. No
resignation of the Master Servicer shall become effective until the Trustee
or a
successor Master Servicer meeting the criteria specified in Section 7.08
shall have assumed the Master Servicer’s responsibilities, duties, liabilities
(other than those liabilities arising prior to the appointment of such
successor) and obligations under this Agreement.
Section
7.08 Assignment
of Master Servicing.
The
Master Servicer may sell and assign its rights and delegate its duties and
obligations in its entirety as Master Servicer under this Agreement; provided,
however, that: (i) the purchaser or transferee accepting such assignment and
delegation and assuming the obligations of the Master Servicer hereunder (a)
shall have a net worth of not less than $15,000,000 (unless otherwise approved
by each Rating Agency pursuant to clause (ii) below); (b) shall be reasonably
satisfactory to the Trustee (as evidenced in a writing signed by the Trustee);
and (c) shall execute and deliver to the Trustee an agreement, in form and
substance reasonably satisfactory to the Trustee, which contains an assumption
by such Person of the due and punctual performance and observance of each
covenant and condition to be performed or observed by it as master servicer
under this Agreement, any custodial agreement from and after the effective
date
of such agreement; (ii) each Rating Agency shall be given prior written notice
of the identity of the proposed successor to the Master Servicer and each Rating
Agency’s rating of the Certificates in effect immediately prior to such
assignment, sale and delegation will not be downgraded, qualified or withdrawn
as a result of such assignment, sale and delegation, as evidenced by a letter
to
such effect delivered to the Master Servicer and the Trustee; and (iii) the
Master Servicer assigning the master servicing shall deliver to the Trustee
an
officer’s certificate and an Opinion of Independent counsel, each stating that
all conditions precedent to such action under this Agreement have been completed
and such action is permitted by and complies with the terms of this Agreement.
No such assignment or delegation shall affect any liability of the Master
Servicer arising out of acts or omissions prior to the effective date
thereof.
Section
7.09 Rights
of the Depositor in Respect of the Master Servicer.
The
Master Servicer shall afford the Depositor and the Trustee, upon reasonable
notice, during normal business hours, access to all records maintained by the
Master Servicer in respect of the Master Servicer’s rights and obligations
hereunder and access to officers of the Master Servicer responsible for such
obligations. Upon request, the Master Servicer shall furnish to the Depositor
and the Trustee its most recent financial statements and such other information
relating to the Master Servicer’s capacity to perform its obligations under this
Agreement as it possesses. To the extent the Depositor and the trustee are
informed that such information is not otherwise available to the public, the
Depositor and the Trustee shall not disseminate any information obtained
pursuant to the preceding two sentences without the Master Servicer’s written
consent, except as required pursuant to this Agreement or to the extent that
it
is appropriate to do so (i) to its legal counsel, auditors, taxing authorities
or other governmental agencies and the Certificateholders, (ii) pursuant to
any
law, rule, regulation, order, judgment, writ, injunction or decree of any court
or governmental authority having jurisdiction over the Depositor and the Trustee
or the Trust Fund, and in any case, the Depositor or the Trustee, (iii)
disclosure of any and all information that is or becomes publicly known, or
information obtained by the Trustee from sources other than the Depositor or
the
Master Servicer, (iv) disclosure as required pursuant to this Agreement or
(v)
disclosure of any and all information (A) in any preliminary or final offering
circular, registration statement or contract or other document pertaining to
the
transactions contemplated by the Agreement approved in advance by the Depositor
or the Master Servicer or (B) to any affiliate, independent or internal auditor,
agent, employee or attorney of the Trustee having a need to know the same,
provided that the Trustee advises such recipient of the confidential nature
of
the information being disclosed, shall use its best efforts to assure the
confidentiality of any such disseminated non-public information. Nothing in
this
Section 7.09 shall limit the obligation of the Master Servicer to comply
with any applicable law prohibiting disclosure of information regarding the
Mortgagors and the failure of the Master Servicer to provide access as provided
in this Section 7.09 as a result of such obligation shall not constitute a
breach of this Section. Nothing in this Section 7.09 shall require the
Master Servicer to collect, create, collate or otherwise generate any
information that it does not generate in its usual course of business. The
Master Servicer shall not be required to make copies of or ship documents to
any
party unless provisions have been made for the reimbursement of the costs
thereof. The Depositor may, but is not obligated to, enforce the obligations
of
the Master Servicer under this Agreement and may, but is not obligated to,
perform, or cause a designee to perform, any defaulted obligation of the Master
Servicer under this Agreement or exercise the rights of the Master Servicer
under this Agreement; provided that the Master Servicer shall not be relieved
of
any of its obligations under this Agreement by virtue of such performance by
the
Depositor or its designee. The Depositor shall not have any responsibility
or
liability for any action or failure to act by the Master Servicer and is not
obligated to supervise the performance of the Master Servicer under this
Agreement or otherwise.
ARTICLE
VIII
DEFAULT;
TERMINATION OF SERVICER AND MASTER SERVICER
Section
8.01 Events
of Default.
In
case
one or more events of default by the Servicer under the Servicing Agreement
(each, a “Servicer Default”) shall occur and be continuing, then, and in each
and every such case, so long as a Servicer Default shall not have been remedied,
the Master Servicer shall notify the Trustee and the Trustee, by notice in
writing to the defaulting Servicer, shall with respect to a payment default
by
the Servicer pursuant to 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 this Agreement and the Servicing Agreement and at law or equity
to
damages, including injunctive relief and specific performance, terminate all
the
rights and obligations of the defaulting Servicer under the Agreement and in
and
to the Mortgage Loans and the proceeds thereof without compensating the
defaulting Servicer for the same with respect to a default by the Servicer.
On
or after the receipt by the defaulting Servicer of such written notice, all
authority and power of the Servicer under the Servicing Agreement whether with
respect to the Mortgage Loans or otherwise, shall pass to and be vested in
the
Trustee. Upon receipt of the above-mentioned termination notice, the defaulting
Servicer shall prepare, execute and deliver, any and all documents and other
instruments, place in the Trustee’s (or its Custodian’s) possession all Mortgage
Files relating to the related Mortgage Loans, and do or accomplish all other
acts or things necessary or appropriate to effect the purposes of such notice
of
termination, whether to complete the transfer and endorsement or assignment
of
the related Mortgage Loans and related documents, or otherwise, at the
Servicer’s sole expense. The defaulting Servicer shall cooperate with the
Trustee in effecting the termination of the Servicer’s responsibilities and
rights under the Servicing Agreement including, without limitation, the transfer
to such successor for administration by it of all cash amounts which shall
at
the time be credited by the defaulting Servicer to the Custodial Account or
thereafter received with respect to the related Mortgage Loans or any related
REO Property (provided, however, that the defaulting Servicer shall continue
to
be entitled to receive all amounts accrued or owing to it under the Servicing
Agreement on or prior to the date of such termination, whether in respect of
Advances, Servicing Advances, accrued and unpaid Servicing Fees or otherwise.
The Trustee shall not have knowledge of any Servicer Default unless a
Responsible Officer of the Trustee has actual knowledge or unless written notice
of the Servicer Default is received by the Trustee at its address for notice
and
such notice references the Certificates, the Trust Fund or this
Agreement.
(a) In
case
one or more of the following events of default by the Master Servicer (each,
a
“Master Servicer Default”) shall occur and be continuing, that is to
say:
(i) any
failure on the part of the Master Servicer duly to observe or perform in any
material respect any other of the covenants or agreements on the part of the
Master Servicer contained in this Agreement, or the breach by the Master
Servicer of any representation and warranty contained in Section 2.03,
which continues unremedied for a period of thirty (30) days after the date
on
which written notice of such failure, requiring the same to be remedied, shall
have been given to the Master Servicer by the Depositor or the Trustee or to
the
Master Servicer, the Depositor and the Trustee by the Holders of Certificates
entitled to at least twenty-five percent (25%) of the Voting Rights;
or
(ii) a
decree
or order of a court or agency or supervisory authority having jurisdiction
in
the premises in an involuntary case under any present or future federal or
state
bankruptcy, insolvency or similar law or the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt, marshalling
of
assets and liabilities or similar proceeding, or for the winding-up or
liquidation of its affairs, shall have been entered against the Master Servicer
and such decree or order shall have remained in force undischarged or unstayed
for a period of ninety (90) days; or
(iii) the
Master Servicer shall consent to the appointment of a conservator or receiver
or
liquidator in any insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings of or relating to it or of or relating to
all
or substantially all of its property; or
(iv) the
Master Servicer shall admit in writing its inability to pay its debts generally
as they become due, file a petition to take advantage of any applicable
insolvency or reorganization statute, make an assignment for the benefit of
its
creditors, or voluntarily suspend payment of its obligations; or
(v) so
long
as the Trust Fund is subject to Exchange Act reporting requirements, failure
by
the Master Servicer to duly perform, within the required time period, its
obligations under Sections 3.13, 3.14, 3.18 or 5.12.
If
a
Master Servicer Default shall occur, then, and in each and every such case,
so
long as such Master Servicer Default shall not have been remedied, the Depositor
or the Trustee may, and at the written direction of the Holders of Certificates
entitled to at least 51% of Voting Rights, the Trustee shall, by notice in
writing to the Master Servicer (and to the Depositor if given by the Trustee
or
to the Trustee if given by the Depositor) with a copy to each Rating Agency,
terminate all of the rights and obligations of the Master Servicer in its
capacity as Master Servicer under this Agreement, to the extent permitted by
law, and in and to the Mortgage Loans and the proceeds thereof. On or after
the
receipt by the Master Servicer of such written notice, all authority and power
of the Master Servicer under this Agreement, whether with respect to the
Certificates (other than as a Holder of any Certificate) or the Mortgage Loans
or otherwise including, without limitation, the compensation payable to the
Master Servicer under this Agreement, shall pass to and be vested in the Trustee
pursuant to and under this Section, and, without limitation, the Trustee is
hereby authorized and empowered, as attorney-in-fact or otherwise, to execute
and deliver, on behalf of and at the expense of the Master Servicer, any and
all
documents and other instruments and to do or accomplish all other acts or things
necessary or appropriate to effect the purposes of such notice of termination,
whether to complete the transfer and endorsement or assignment of the Mortgage
Loans and related documents, or otherwise. The Master Servicer agrees promptly
(and in any event no later than ten Business Days subsequent to such notice)
to
provide the Trustee with all documents and records requested by it to enable
it
to assume the Master Servicer’s functions under this Agreement, and to cooperate
with the Trustee in effecting the termination of the Master Servicer’s
responsibilities and rights under this Agreement (provided, however, that the
Master Servicer shall continue to be entitled to receive all amounts accrued
or
owing to it under this Agreement on or prior to the date of such termination
and
shall continue to be entitled to the benefits of Section 7.03,
notwithstanding any such termination, with respect to events occurring prior
to
such termination). For purposes of this Section 8.01, the Trustee shall not
be deemed to have knowledge of a Master Servicer Default unless a Responsible
Officer of the Trustee assigned to and working in the Trustee’s Corporate Trust
Office has actual knowledge thereof or unless written notice of any event which
is in fact such a Master Servicer Default is received by the Trustee and such
notice references the Certificates, the Trust Fund or this Agreement. The
Trustee shall promptly notify the Rating Agencies of the occurrence of a Master
Servicer Default of which it has knowledge as provided above.
To
the
extent that the costs and expenses of the Trustee related to the termination
of
the Master Servicer, appointment of a successor Master Servicer or the transfer
and assumption of the master servicing by the Trustee (including, without
limitation, (i) all legal costs and expenses and all due diligence costs and
expenses associated with an evaluation of the potential termination of the
Master Servicer as a result of a Master Servicer Default and (ii) all costs
and
expenses associated with the complete transfer of the master servicing,
including all servicing files and all servicing data and the completion,
correction or manipulation of such servicing data as may be required by the
successor Master Servicer to correct any errors or insufficiencies in the
servicing data or otherwise to enable the successor Master Servicer to master
service the Mortgage Loans in accordance with this Agreement) are not fully
and
timely reimbursed by the terminated Master Servicer, the Trustee shall be
entitled to reimbursement of such costs and expenses from the Distribution
Account.
Neither
the Trustee nor any other successor master servicer shall be deemed to be in
default hereunder by reason of any failure to make, or any delay in making,
any
distribution hereunder or any portion thereof or any failure to perform, or
any
delay in performing, any duties or responsibilities hereunder, in either case
caused by the failure of the Master Servicer to deliver or provide, or any
delay
in delivering or providing, any cash, information, documents or records to
it.
Notwithstanding
the above, the Trustee may, if it shall be unwilling to continue to so act,
or
shall, if it is unable to so act, petition a court of competent jurisdiction
to
appoint, or appoint on its own behalf, any established housing and home finance
institution servicer, master servicer, servicing or mortgage servicing
institution having a net worth of not less than $15,000,000 and meeting such
other standards for a successor master servicer as are set forth in this
Agreement, as the successor to such Master Servicer in the assumption of all
of
the responsibilities, duties or liabilities of a master servicer, like the
Master Servicer.
Section
8.02 Master
Servicer to Act; Appointment of Successor.
On
and
after the time the Servicer receives a notice of termination pursuant to
Section 8.01, the Trustee shall become the successor to the Servicer with
respect to the transactions set forth or provided for herein and after a
transition period (not to exceed 90 days), shall be subject to all the
responsibilities, duties and liabilities relating thereto placed on the Servicer
by the terms and provisions of the Servicing Agreement, including, the
obligation to make Advances, 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 will make any Advance required to be made by the terminated Servicer
on
the Distribution Date on which the terminated Servicer was required to make
such
Advance. Effective on the date of such notice of termination, as compensation
therefor, the 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 as Servicer under 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
terminated Servicer 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 this
Agreement or if it is otherwise unable to so act, appoint, or petition a court
of competent jurisdiction to appoint, any established mortgage loan servicing
institution the appointment of which does not adversely affect the then current
rating of the Certificates by each Rating Agency as the successor to the
Servicer under the Servicing Agreement in the assumption of all or any part
of
the responsibilities, duties or liabilities of the Servicer under the Servicing
Agreement. Any Successor Servicer shall (i) be an institution that is a Xxxxxx
Xxx and Xxxxxxx Mac approved seller/servicer in good standing, that has a net
worth of at least $15,000,000 and (ii) be willing to act as Successor Servicer
of the Mortgage Loans under the Servicing Agreement, and shall have executed
and
delivered to the Depositor and the Trustee an agreement accepting such
delegation and assignment, that contains an assumption by such Person of the
rights, powers, duties, responsibilities, obligations and liabilities of the
terminated Servicer (other than any liabilities of the terminated Servicer
hereof incurred prior to termination of the Servicer under the Servicing
Agreement), with like effect as if originally named as a party to 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 the terminated 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 terminated Servicer hereunder, the Trustee,
unless the Trustee is prohibited by law from so acting, shall 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 the Mortgage Loans or otherwise as it and such
successor shall agree; provided that no such compensation shall be in excess
of
that permitted the terminated Servicer under the Servicing Agreement. The
Trustee and such successor shall take such action, consistent with this
Agreement and the Servicing 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,
in either case caused by the failure of the 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 the 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 as may be
required herein shall be payable to the Trustee from the Distribution Account
pursuant to Section 3.31. Any successor to the terminated Servicer as
Successor Servicer under the Servicing Agreement shall give notice to the
applicable Mortgagors of such change of the Servicer and shall, during the
term
of its service as Successor Servicer maintain in force the policy or policies
that the terminated Servicer is required to maintain pursuant to the Servicing
Agreement.
On
and
after the time the Master Servicer receives a notice of termination, the Trustee
shall be the successor in all respects to the Master Servicer (and, if
applicable, the Securities Administrator) in its capacity as Master Servicer
(and, if applicable, the Securities Administrator) under this Agreement and
the
transactions set forth or provided for herein, and all the responsibilities,
duties and liabilities relating thereto and arising thereafter shall be assumed
by the Trustee (except for any representations or warranties of the Master
Servicer under this Agreement, the responsibilities, duties and liabilities
contained in Section 2.3 and the obligation to deposit amounts in respect of
losses pursuant to Section 3.22(c)) by the terms and provisions hereof. As
compensation therefor, the Trustee shall be entitled to and all funds relating
to the Loans, investment earnings on the Distribution Account and all other
remuneration to which the Master Servicer would have been entitled if it had
continued to act hereunder. Notwithstanding the above and subject to the
immediately following paragraph, the Trustee may, if it shall be unwilling
to so
act, or shall, if it is unable to so act or if it is prohibited by law from
making advances regarding delinquent mortgage loans or if the Holders of
Certificates evidencing, in aggregate, not less than 51% of the Certificate
Principal Balance of the Certificates so request in writing promptly appoint
or
petition a court of competent jurisdiction to appoint, an established mortgage
loan servicing institution acceptable to each Rating Agency and having a net
worth of not less than $25,000,000, as the successor to the Master Servicer
under this Agreement in the assumption of all or any part of the
responsibilities, duties or liabilities of the Master Servicer under this
Agreement.
No
appointment of a successor to the Master Servicer (and, if applicable, the
Securities Administrator) under this Agreement shall be effective until the
assumption by the successor of all of the Master Servicer’s (and, if applicable,
the Securities Administrator’s) responsibilities, duties and liabilities
hereunder. In connection with such appointment and assumption described herein,
the Trustee may make such arrangements for the compensation of such successor
out of payments on Loans as it and such successor shall agree; provided,
however, that no such compensation shall be in excess of that permitted the
Master Servicer (and, if applicable, the Securities Administrator) as such
hereunder. The Depositor, the Trustee and such successor shall take such action,
consistent with this Agreement, as shall be necessary to effectuate any such
succession. Pending appointment of a successor to the Master Servicer (and,
if
applicable, the Securities Administrator) under this Agreement, the Trustee
shall act in such capacity as hereinabove provided. The transition costs and
expenses incurred by the Trustee in connection with the replacement of the
Master Servicer (and, if applicable, the Securities Administrator) shall be
reimbursed out of the Trust Fund.
Section
8.03 Notification
to Certificateholders.
(a) Upon
any
termination of or appointment of a successor to the Servicer or the Master
Servicer, the Trustee shall give prompt written notice thereof to
Certificateholders and to each Rating Agency.
(b) Within
sixty (60) days after the occurrence of any Servicer Default or Master Servicer
Default, the Trustee shall transmit by mail to all Certificateholders notice
of
each such Servicer Default or Master Servicer Default hereunder known to the
Trustee, unless such default shall have been cured or waived.
Section
8.04 Waiver
of Servicer Defaults and Master Servicer Defaults.
The
Trustee may waive only by written notice from Certificateholders evidencing
66-2/3% of the Voting Rights (unless such default materially and adversely
affects all Certificateholders, in which case the written direction shall be
from all of the Certificateholders) any default by the Servicer or Master
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 or Master Servicer Default arising therefrom shall be
deemed to have been remedied for every purpose of this Agreement. No such waiver
shall extend to any subsequent or other default or impair any right consequent
thereon except to the extent expressly so waived in writing.
ARTICLE
IX
CONCERNING
THE TRUSTEE AND SECURITIES ADMINISTRATOR
Section
9.01 Duties
of Trustee and Securities Administrator.
(a) The
Trustee, prior to the occurrence of a Servicer Default or Master Servicer
Default, and after the curing or waiver of all Servicer Defaults or Master
Servicer Defaults, which may have occurred, and the Securities Administrator
each undertake to perform such duties and only such duties as are specifically
set forth in this Agreement as duties of the Trustee and the Securities
Administrator, respectively. If a Servicer Default or Master Servicer Default
has occurred and has not been cured or waived, the Trustee shall exercise such
of the rights and powers vested in it by this Agreement, and use the same degree
of care and skill in their exercise, as a prudent person would exercise or
use
under the circumstances in the conduct of such Person’s own affairs. Any
permissive right of the Trustee enumerated in this Agreement shall not be
construed as a duty.
(b) Each
of
the Trustee and the Securities Administrator, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to it, which are specifically required to be furnished
pursuant to any provision of this Agreement, shall examine them to determine
whether they conform to the requirements of this Agreement. If any such
instrument is found not to conform to the requirements of this Agreement in
a
material manner, the Trustee or the Securities Administrator, as the case may
be, shall take such action as it deems appropriate to have the instrument
corrected, and if the instrument is not corrected to its satisfaction, the
Securities Administrator will provide notice to the Trustee thereof and the
Trustee will provide notice to the Certificateholders.
(c) The
Trustee shall promptly remit to the Servicer any complaint, claim, demand,
notice or other document (collectively, the “Notices”) delivered to the Trustee
as a consequence of the assignment of any Mortgage Loan hereunder and relating
to the servicing of the Mortgage Loans; provided than any such notice (i) is
delivered to the Trustee at its Corporate Trust Office, (ii) contains
information sufficient to permit the Trustee to make a determination that the
real property to which such document relates is a Mortgaged Property. The
Trustee shall have no duty hereunder with respect to any Notice it may receive
or which may be alleged to have been delivered to or served upon it unless
such
Notice is delivered to it or served upon it at its Corporate Trust Office and
such Notice contains the information required pursuant to clause (ii) of the
preceding sentence.
(d)
No
provision of this Agreement shall be construed to relieve the Trustee or the
Securities Administrator from liability for its own negligent action, its own
negligent failure to act or its own misconduct; provided, however,
that:
(i) Prior
to
the occurrence of a Servicer Default or Master Servicer Default and after the
curing or waiver of all such Servicer Defaults or Master Servicer Defaults
which
may have occurred with respect to the Trustee and at all times with respect
to
the Securities Administrator, the duties and obligations of the Trustee and
the
Securities Administrator shall be determined solely by the express provisions
of
this Agreement, neither the Trustee nor the Securities Administrator shall
be
liable except for the performance of its duties and obligations as are
specifically set forth in this Agreement, no implied covenants or obligations
shall be read into this Agreement against the Trustee or the Securities
Administrator and, in the absence of bad faith on the part of the Trustee or
the
Securities Administrator, respectively, the Trustee or the Securities
Administrator, respectively, may conclusively rely and shall be fully protected
in acting or refraining from acting, as to the truth of the statements and
the
correctness of the opinions expressed therein, upon any certificates or opinions
furnished to the Trustee or the Securities Administrator, respectively, that
conform to the requirements of this Agreement;
(ii) Neither
the Trustee nor the Securities Administrator shall be liable in its individual
capacity for an error of judgment made in good faith by a Responsible Officer
or
Responsible Officers of the Trustee or an officer or officers of the Securities
Administrator, respectively, unless it shall be proved that the Trustee or
Securities Administrator, respectively, was negligent in ascertaining the
pertinent facts;
(iii) Neither
the Trustee nor the Securities Administrator shall be liable with respect to
any
action taken, suffered or omitted to be taken by it in good faith and believed
by it to be authorized or within the rights or powers conferred upon it by
this
Agreement or in accordance with the directions of the Holders of Certificates
evidencing not less than 25% of the aggregate Voting Rights of the Certificates,
if such action or non-action relates to the time, method and place of conducting
any proceeding for any remedy available to the Trustee or the Securities
Administrator or exercising any trust or other power conferred upon the Trustee
or the Securities Administrator under this Agreement;
(iv) The
Trustee shall not be required to take notice or be deemed to have notice or
knowledge of any default, Servicer Default or Master Servicer Default unless
a
Responsible Officer of the Trustee shall have actual knowledge thereof. In
the
absence of such notice, the Trustee may conclusively assume there is no such
default, Servicer Default or Master Servicer Default;
(v) The
Trustee shall not in any way be liable by reason of any insufficiency in any
Account held by or in the name of Trustee unless it is determined by a court
of
competent jurisdiction that the Trustee’s gross negligence or willful misconduct
was the primary cause of such insufficiency (except to the extent that the
Trustee is obligor and has defaulted thereon);
(vi) Anything
in this Agreement to the contrary notwithstanding, in no event shall the Trustee
or the Securities Administrator be liable for special, indirect, punitive or
consequential loss or damage of any kind whatsoever (including but not limited
to lost profits), even if the Trustee or the Securities Administrator has been
advised of the likelihood of such loss or damage and regardless of the form
of
action and whether or not any such damages were foreseeable or contemplated;
and
(vii) None
of
the Sponsor, the Depositor or the Trustee shall be responsible for the acts
or
omissions of the other, it being understood that this Agreement shall not be
construed to render them partners, joint venturers or agents of one
another.
Neither
the Trustee nor the Securities Administrator shall be required to expend or
risk
its own funds or otherwise incur liability, financial or otherwise, in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if there is reasonable ground for believing that the repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it, and none of the provisions contained in this Agreement
shall in any event require the Trustee or the Securities Administrator to
perform, or be responsible for the manner of performance of, any of the
obligations of the terminated Servicer or Master Servicer
hereunder.
(e) All
funds
received by the Securities Administrator and required to be deposited in the
Distribution Account pursuant to this Agreement will be promptly so deposited
by
the Securities Administrator.
Section
9.02 Certain
Matters Affecting the Trustee and Securities Administrator.
(a) Except
as
otherwise provided in Section 9.01:
(i) The
Trustee and the Securities Administrator may conclusively rely and shall be
fully protected in acting or refraining from acting in reliance on any
resolution or certificate of the Sponsor, the Depositor or the 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 and the Securities Administrator may consult with counsel and any advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection with respect to any action taken or suffered or
omitted by it hereunder in good faith and in accordance with such advice or
Opinion of Counsel:
(iii) Neither
the Trustee nor the Securities Administrator shall be under any obligation
to
exercise any of the trusts or powers vested in it by this Agreement, other
than
its obligation to give notices pursuant to this Agreement, or to institute,
conduct or defend any litigation hereunder or in relation hereto at the request,
order or direction of any of the Certificateholders pursuant to the provisions
of this Agreement, unless such Certificateholders shall have offered to the
Trustee or the Securities Administrator, as the case may be, reasonable security
or indemnity satisfactory to it against the costs, expenses and liabilities
which may be incurred therein or thereby. Nothing contained herein shall,
however, relieve the Trustee of the obligation, upon the occurrence of a
Servicer Default or Master Servicer Default of which a Responsible Officer
of
the Trustee has actual knowledge (which has not been cured or waived), to
exercise such of the rights and powers vested in it by this Agreement, and
to
use the same degree of care and skill in their exercise, as a prudent person
would exercise or use under the circumstances in the conduct of his own
affairs;
(iv) Neither
the Trustee nor the Securities Administrator shall be liable in its individual
capacity for any action taken, suffered or omitted by it in good faith and
believed by it to be authorized or within the discretion or rights or powers
conferred upon it by this Agreement;
(v) Prior
to
the occurrence of a Servicer Default or Master Servicer Default hereunder and
after the curing or waiver of all Servicer Defaults or Master Servicer Defaults
which may have occurred with respect to the Trustee and at all times with
respect to the Securities Administrator, neither the Trustee nor the Securities
Administrator shall be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond or other paper or document,
unless requested in writing to do so by Holders of Certificates evidencing
not
less than twenty-five percent (25%) of the aggregate Voting Rights of the
Certificates and provided that the payment within a reasonable time to the
Trustee or the Securities Administrator of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in the
opinion of the Trustee or the Securities Administrator, as applicable, not
reasonably assured to the Trustee or the Securities Administrator, as
applicable, by the security afforded to it by the terms of this Agreement,
the
Trustee or the Securities Administrator, as applicable, may require reasonable
indemnity against such expense or liability as a condition to taking any such
action. The reasonable expense of every such examination shall be paid by the
Certificateholders requesting the investigation;
(vi) The
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or through Affiliates, nominees, custodians, agents
or
attorneys. The Trustee shall not be liable or responsible for the misconduct
or
negligence of any of the Trustee’s agents or attorneys or paying agent appointed
hereunder by the Trustee with due care;
(vii) Should
the Trustee deem the nature of any action required on its part to be unclear,
the Trustee may require prior to such action that it be provided by the
Depositor with reasonable further instructions; the right of the Trustee to
perform any discretionary act enumerated in this Agreement shall not be
construed as a duty, and the Trustee shall not be accountable for other than
its
gross negligence or willful misconduct in the performance of any such
act;
(viii) The
Trustee shall not be required to give any bond or surety with respect to the
execution of the trust created hereby or the powers granted
hereunder;
(ix) The
Trustee shall not have any duty to conduct any affirmative investigation as
to
the occurrence of any condition requiring the repurchase of any Mortgage Loan
by
any Person pursuant to this Agreement, or the eligibility of any Mortgage Loan
for purposes of this Agreement;
(x) The
Trustee shall have no duty hereunder with respect to any complaint, claim,
demand, notice or other document it may receive or which may be alleged to
have
been delivered or served upon it by the parties as a consequence of the
assignment of any Mortgage Loan hereunder; provided, however that the Trustee
shall promptly remit to the Servicer upon receipt any such complaint, claim,
demand, notice or other document (i) which is delivered to the Trustee at is
Corporate Trust Office, (ii) of which a Responsible Officer has actual knowledge
and (iii) which contains information sufficient to permit the Trustee to make
a
determination that the real property to which such document relates is a
Mortgaged Property;
(xi) The
Trustee is hereby directed by the Depositor to execute the Cap Contract on
behalf of the Trust Fund in the form presented to it by the Depositor and shall
have no responsibility for the contents of the Cap Contract, including, without
limitation, the representations and warranties contained therein. Any funds
payable by the Trustee under the Cap Contract at closing shall be paid by the
Depositor. Notwithstanding anything to the contrary contained herein or in
the
Cap Contract, the Trustee shall not be required to make any payments to the
counterparty under the Cap Contract.
(xii) None
of
the Securities Administrator, the Master Servicer, the Servicer, the Sponsor,
the Depositor, the Custodian or the Trustee shall be responsible for the acts
or
omissions of the others, it being understood that this Agreement shall not
be
construed to render them partners, joint venturers or agents of one another;
and
(xiii) The
permissive rights of the Trustee enumerated herein shall not be construed as
duties.
Section
9.03 Trustee
and Securities Administrator not Liable for Certificates or Mortgage
Loans.
The
recitals contained herein and in the Certificates (other than the signature
of
the Securities Administrator, the authentication of the Securities Administrator
on the Certificates, the acknowledgements of the Trustee contained in Article
II
and the representations and warranties of the Trustee in Section 9.12)
shall be taken as the statements of the Depositor, and neither the Trustee
nor
the Securities Administrator assumes any responsibility for their correctness.
Neither the Trustee nor the Securities Administrator makes any representations
or warranties as to the validity or sufficiency (other than as specifically
set
forth in Section 9.12) of the Cap Contract, the Certificates (other than
the signature of the Securities Administrator and authentication of the
Securities Administrator on the Certificates) or of any Mortgage Loan except
as
expressly provided in Section 2.02. The Securities Administrator’s signature and
authentication (or authentication of its agent) on the Certificates shall be
solely in its capacity as Securities Administrator and shall not constitute
the
Certificates an obligation of the Securities Administrator in any other
capacity. The Trustee and the Securities Administrator shall not be accountable
for the use or application by the Depositor of any of the Certificates or of
the
proceeds of such Certificates, or for the use or application of any funds paid
to the Depositor with respect to the Mortgage Loans.
Section
9.04 Trustee
and Securities Administrator May Own Certificates.
Each
of
the Trustee and the Securities Administrator in its individual capacity or
in
any other capacity other than as Trustee or Securities Administrator hereunder
may become the owner or pledgee of any Certificates and may transact business
with other interested parties and their Affiliates with the same rights it
would
have if it were not the Trustee or the Securities Administrator.
Section
9.05 Fees
and Expenses of Trustee and Securities Administrator.
The
fees
of the Trustee and the Securities Administrator hereunder shall be paid in
accordance with a side letter agreement with the Master Servicer and at the
sole
expense of the Master Servicer. In addition, the Trustee, the Securities
Administrator, the Custodian and any director, officer, employee or agent of
the
Trustee, the Securities Administrator and the Custodian shall be indemnified
by
the Trust Fund and held harmless against any loss, liability or expense
(including reasonable attorney’s fees and expenses) incurred by the Trustee, the
Custodian or the Securities Administrator including any pending or threatened
claim or legal action arising out of or in connection with the acceptance or
administration of its respective obligations and duties under this Agreement,
including the Cap Contract and any and all other agreements related hereto,
other than any loss, liability or expense (i) for which the Trustee is
indemnified by the Master Servicer or the Servicer, (ii) that constitutes a
specific liability of the Trustee or the Securities Administrator pursuant
to
this Agreement or (iii) any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of duties
hereunder by the Trustee or the Securities Administrator or by reason of
reckless disregard of obligations and duties hereunder. In no event shall the
Trustee or the Securities Administrator be liable for special, indirect or
consequential loss or damage of any kind whatsoever (including but not limited
to lost profits), even if it has been advised of the likelihood of such loss
or
damage and regardless of the form of action. The Master Servicer agrees to
indemnify the Trustee, from, and hold the Trustee harmless against, any loss,
liability or expense (including reasonable attorney’s fees and expenses)
incurred by the Trustee by reason of the Master Servicer’s willful misfeasance,
bad faith or gross negligence in the performance of its duties under this
Agreement or by reason of the Master Servicer’s reckless disregard of its
obligations and duties under this Agreement. The indemnities in this
Section 9.05 shall survive the termination or discharge of this Agreement
and the resignation or removal of the Master Servicer, the Trustee, the
Securities Administrator or the Custodian. Any payment hereunder made by the
Master Servicer to the Trustee shall be from the Master Servicer’s own funds,
without reimbursement from any REMIC therefor.
Section
9.06 Eligibility
Requirements for Trustee and Securities Administrator.
The
Trustee and the Securities Administrator shall at all times be a corporation
or
an association (other than the Depositor, the Sponsor or any Affiliate of the
foregoing) organized and doing business under the laws of any state or the
United States of America, authorized under such laws to exercise corporate
trust
powers, having a combined capital and surplus of at least $50,000,000 (or a
member of a bank holding company whose capital and surplus is at least
$50,000,000) and subject to supervision or examination by federal or state
authority. If such corporation or association publishes reports of conditions
at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this
Section the combined capital and surplus of such corporation or association
shall be deemed to be its combined capital and surplus as set forth in its
most
recent report of conditions so published. In case at any time the Trustee or
the
Securities Administrator, as applicable, shall cease to be eligible in
accordance with the provisions of this Section, the Trustee or the Securities
Administrator, as applicable, shall resign immediately in the manner and with
the effect specified in Section 9.07.
Additionally,
the Securities Administrator (i) may not be an originator, Master Servicer,
Servicer, Depositor or an affiliate of the Depositor unless the Securities
Administrator is in an institutional trust department, (ii) must be authorized
to exercise corporate trust powers under the laws of its jurisdiction of
organization, and (iii) must be rated at least "A/F1" by Fitch, if Fitch is
a
Rating Agency, or rated at least "A-1" by S&P (or such rating acceptable to
Fitch pursuant to a rating confirmation). Xxxxx Fargo Bank, N.A. shall act
as
Securities Administrator for so long as it is Master Servicer under this
Agreement.
Section
9.07 Resignation
and Removal of Trustee and Securities Administrator.
The
Trustee and the Securities Administrator may at any time resign (including,
without limitation, and in the case of the Securities Administrator, upon the
resignation or removal of the Master Servicer) and be discharged from the trust
hereby created by giving written notice thereof to the Depositor, to the Master
Servicer, to the Securities Administrator (or the Trustee, if the Securities
Administrator resigns) and to the Certificateholders. Upon receiving such notice
of resignation, the Depositor shall promptly appoint a successor trustee or
successor securities administrator by written instrument, in duplicate, which
instrument shall be delivered to the resigning Trustee or Securities
Administrator, as applicable, and to the successor trustee or successor
securities administrator, as applicable. A copy of such instrument shall be
delivered to the Certificateholders, the Trustee, the Securities Administrator
and the Master Servicer by the Depositor. If no successor trustee or successor
securities administrator shall have been so appointed and have accepted
appointment within thirty (30) days after the giving of such notice of
resignation, the resigning Trustee or Securities Administrator, as the case
may
be, may, at the expense of the Trust Fund, petition any court of competent
jurisdiction for the appointment of a successor trustee or successor securities
administrator, as applicable.
If
at any
time the Trustee or the Securities Administrator shall cease to be eligible
in
accordance with the provisions of Section 9.06 and shall fail to resign
after written request therefor by the Depositor, or if at any time the Trustee
or the Securities Administrator shall become incapable of acting, or shall
be
adjudged bankrupt or insolvent, or a receiver of the Trustee or the Securities
Administrator or of its property shall be appointed, or any public officer
shall
take charge or control of the Trustee or the Securities Administrator or of
its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Depositor may remove the Trustee or the Securities
Administrator, as applicable and appoint a successor trustee or successor
securities administrator, as applicable, by written instrument, in duplicate,
which instrument shall be delivered to the Trustee or the Securities
Administrator so removed and to the successor trustee or successor securities
administrator. A copy of such instrument shall be delivered to the
Certificateholders, the Trustee, the Securities Administrator and the Master
Servicer by the Depositor.
The
Holders of Certificates entitled to at least fifty-one percent (51%) of the
Voting Rights may at any time remove the Trustee or the Securities Administrator
and appoint a successor trustee or successor securities administrator by written
instrument or instruments, in triplicate, signed by such Holders or their
attorneys-in-fact duly authorized, one complete set of which instruments shall
be delivered to the Depositor, one complete set to the Trustee or the Securities
Administrator so removed and one complete set to the successor so appointed.
A
copy of such instrument shall be delivered to the Certificateholders, the
Trustee (in the case of the removal of the Securities Administrator), the
Securities Administrator (in the case of the removal of the Trustee) and the
Master Servicer by the Depositor.
Any
resignation or removal of the Trustee or the Securities Administrator and
appointment of a successor trustee or successor securities administrator
pursuant to any of the provisions of this Section shall not become
effective until acceptance of appointment by the successor trustee or successor
securities administrator, as applicable, as provided in
Section 9.08.
Notwithstanding
anything to the contrary contained herein, the Master Servicer and the
Securities Administrator shall at all times be the same Person.
Section
9.08 Successor
Trustee or Securities Administrator.
Any
successor trustee or successor securities administrator appointed as provided
in
Section 9.07 hereof shall execute, acknowledge and deliver to the Depositor
and to its predecessor trustee or predecessor securities administrator
instrument accepting such appointment hereunder and thereupon the resignation
or
removal of the predecessor trustee or predecessor securities administrator
shall
become effective and such successor trustee or successor securities
administrator, without any further act, deed or conveyance, shall become fully
vested with all the rights, powers, duties and obligations of its predecessor
hereunder, with the like effect as if originally named as trustee or securities
administrator herein. The predecessor trustee or predecessor securities
administrator shall deliver to the successor trustee or successor securities
administrator all Mortgage Loan Documents and related documents and statements
to the extent held by it hereunder, as well as all monies, held by it hereunder,
and the Depositor and the predecessor trustee or predecessor securities
administrator shall execute and deliver such instruments and do such other
things as may reasonably be required for more fully and certainly vesting and
confirming in the successor trustee or successor securities administrator all
such rights, powers, duties and obligations.
No
successor trustee or successor securities administrator shall accept appointment
as provided in this Section 9.08 unless at the time of such acceptance such
successor trustee or successor securities administrator shall be eligible under
the provisions of Section 9.07 hereof and its appointment shall not
adversely affect the then current rating of the Certificates.
Upon
acceptance of appointment by a successor trustee or successor securities
administrator as provided in this Section 9.08, the successor trustee or
successor securities administrator shall mail notice of the succession of such
trustee or securities administrator hereunder to all Holders of Certificates.
If
the successor trustee or successor securities administrator fails to mail such
notice within ten days after acceptance of appointment, the Depositor shall
cause such notice to be mailed at the expense of the Trust Fund.
Section
9.09 Merger
or Consolidation of Trustee or Securities Administrator.
Any
corporation, state bank or national banking association into which the Trustee
or Securities Administrator may be merged or converted or with which it may
be
consolidated or any corporation, state bank or national banking association
resulting from any merger, conversion or consolidation to which the Trustee
or
the Securities Administrator shall be a party, or any corporation, state bank
or
national banking association succeeding to substantially all of the corporate
trust business of the Trustee or Securities Administrator or shall be the
successor of the Trustee or Securities Administrator hereunder, provided that
such corporation shall be eligible under the provisions of Section 9.06
without the execution or filing of any paper or further act on the part of
any
of the parties hereto, anything herein to the contrary
notwithstanding.
Section
9.10 Appointment
of Co-Trustee or Separate Trustee.
Notwithstanding
any other provisions hereof, at any time, for the purpose of meeting any legal
requirements of any jurisdiction in which any part of the REMIC I or property
securing the same may at the time be located, the Trustee shall have the power
and shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee to act as co-trustee or co-trustees, jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of REMIC
I, and to vest in such Person or Persons, in such capacity, and for the benefit
of the Holders of the Certificates, such title to REMIC I, or any part thereof,
and, subject to the other provisions of this Section 9.10, such powers,
duties, obligations, rights and trusts as the Trustee may consider necessary
or
desirable. No co-trustee or separate trustee hereunder shall be required to
meet
the terms of eligibility as a successor trustee under Section 9.06
hereunder and no notice to Holders of Certificates of the appointment of
co-trustee(s) or separate trustee(s) shall be required under Section 9.08
hereof.
In
the
case of any appointment of a co-trustee or separate trustee pursuant to this
Section 9.10 all rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and exercised or
performed by the Trustee and such separate trustee or co-trustee jointly, except
to the extent that under any law of any jurisdiction in which any particular
act
or acts are to be performed by the Trustee (whether as Trustee hereunder or
as
successor to a defaulting Master Servicer hereunder), the Trustee shall be
incompetent or unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations (including the holding of title to REMIC
I or any portion thereof in any such jurisdiction) shall be exercised and
performed by such separate trustee or co-trustee at the direction of the
Trustee.
Any
notice, request or other writing given to the Trustee shall be deemed to have
been given to each of the then separate trustees and co-trustees, as effectively
as if given to each of them. Every instrument appointing any separate trustee
or
co-trustee shall refer to this Agreement and the conditions of this Article
IX.
Each separate trustee and co-trustee, upon its acceptance of the trust
conferred, shall be vested with the estates or property specified in its
instrument of appointment, either jointly with the Trustee, or separately,
as
may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee.
Any
separate trustee or co-trustee may, at any time, constitute the Trustee, its
agent or attorney-in-fact, with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Agreement
on
its behalf and in its name. If any separate trustee or co-trustee shall die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee or co-trustee.
Section
9.11 Appointment
of Office or Agency.
The
Certificates may be surrendered for registration of transfer or exchange at
the
Securities Administrator’s office initially located at Xxxxx Xxxxxx xxx
Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, and presented for final
distribution at the Corporate Trust Office of the Securities Administrator
where
notices and demands to or upon the Securities Administrator in respect of the
Certificates and this Agreement may be served.
Section
9.12 Representations
and Warranties.
The
Trustee hereby represents and warrants to the Master Servicer, the Securities
Administrator, the Servicer and the Depositor as applicable, as of the Closing
Date, that:
(i) It
is a
national banking association duly organized, validly existing and in good
standing under the laws of the United States of America.
(ii) The
execution and delivery of this Agreement by it, and the performance and
compliance with the terms of this Agreement by it, will not violate its articles
of association or bylaws or constitute a default (or an event which, with notice
or lapse of time, or both, would constitute a default) under, or result in
the
breach of, any material agreement or other instrument to which it is a party
or
which is applicable to it or any of its assets.
(iii) It
has
the full power and authority to enter into and consummate all transactions
contemplated by this Agreement, has duly authorized the execution, delivery
and
performance of this Agreement, and has duly executed and delivered this
Agreement.
(iv) This
Agreement, assuming due authorization, execution and delivery by the other
parties hereto, constitutes a valid, legal and binding obligation of it,
enforceable against it in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, receivership, reorganization, moratorium
and
other laws affecting the enforcement of creditors’ rights generally, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) It
is not
in violation of, and its execution and delivery of this Agreement and its
performance and compliance with the terms of this Agreement will not constitute
a violation of, any law, any order or decree of any court or arbiter, or any
order, regulation or demand of any federal, state or local governmental or
regulatory authority, which violation, in its good faith and reasonable
judgment, is likely to affect materially and adversely either the ability of
it
to perform its obligations under this Agreement or its financial
condition.
No
litigation is pending or, to the best of its knowledge, threatened against
it,
which would prohibit it from entering into this Agreement or, in its good faith
reasonable judgment, is likely to materially and adversely affect either the
ability of it to perform its obligations under this Agreement or its financial
condition.
Section
9.13 Tax
Matters.
It
is
intended that the Trust Fund shall constitute, and that the affairs of the
Trust
Fund shall be conducted so that each REMIC formed hereunder qualifies as, a
“real estate mortgage investment conduit” as defined in and in accordance with
the REMIC Provisions. In furtherance of such intention, the Securities
Administrator covenants and agrees that it shall act as agent (and the
Securities Administrator is hereby appointed to act as agent) on behalf of
the
Trust Fund. The Securities Administrator, as agent on behalf of the Trust Fund,
shall do or refrain from doing, as applicable, the following: (a) the Securities
Administrator shall prepare and file, or cause to be prepared and filed, in
a
timely manner, U.S. Real Estate Mortgage Investment Conduit Income Tax Returns
(Form 1066 or any successor form adopted by the Internal Revenue Service) and
prepare and file or cause to be prepared and filed with the Internal Revenue
Service and applicable state or local tax authorities income tax or information
returns for each taxable year with respect to each such REMIC containing such
information and at the times and in the manner as may be required by the Code
or
state or local tax laws, regulations, or rules, and furnish or cause to be
furnished to Certificateholders the schedules, statements or information at
such
times and in such manner as may be required thereby; (b) the Securities
Administrator shall apply for an employer identification number with the
Internal Revenue Service via a Form SS-4 or other comparable method for each
REMIC that is or becomes a taxable entity, and within thirty days of the Closing
Date, furnish or cause to be furnished to the Internal Revenue Service, on
Forms
8811 or as otherwise may be required by the Code, the name, title, address,
and
telephone number of the person that the holders of the Certificates may contact
for tax information relating thereto, together with such additional information
as may be required by such Form, and update such information at the time or
times in the manner required by the Code for the Trust Fund; (c) the Securities
Administrator shall make or cause to be made elections, on behalf of each REMIC
formed hereunder to be treated as a REMIC on the federal tax return of such
REMIC for its first taxable year (and, if necessary, under applicable state
law); (d) the Securities Administrator shall prepare and forward, or cause
to be
prepared and forwarded, to the Certificateholders and to the Internal Revenue
Service and, if necessary, state tax authorities, all information returns and
reports as and when required to be provided to them in accordance with the
REMIC
Provisions, including without limitation, the calculation of any original issue
discount using the Prepayment Assumption; (e) the Securities Administrator
shall
provide information necessary for the computation of tax imposed on the transfer
of a Residual Certificate to a Person that is not a Permitted Transferee, or
an
agent (including a broker, nominee or other middleman) of a Person that is
not a
Permitted Transferee, or a pass-through entity in which a Person that is not
a
Permitted Transferee is the record holder of an interest (the reasonable cost
of
computing and furnishing such information may be charged to the Person liable
for such tax); (f) the Securities Administrator shall, to the extent under
its
control, conduct the affairs of the Trust Fund at all times that any
Certificates are outstanding so as to maintain the status of each REMIC formed
hereunder as a REMIC under the REMIC Provisions; (g) the Securities
Administrator shall not knowingly or intentionally take any action or omit
to
take any action that would cause the termination of the REMIC status of any
REMIC formed hereunder; (h) the Securities Administrator shall pay, from the
sources specified in the last paragraph of this Section 9.12, the amount of
any federal, state and local taxes, including prohibited transaction taxes
as
described below, imposed on any REMIC formed hereunder prior to the termination
of the Trust Fund when and as the same shall be due and payable (but such
obligation shall not prevent the Securities Administrator or any other
appropriate Person from contesting any such tax in appropriate proceedings
and
shall not prevent the Securities Administrator from withholding payment of
such
tax, if permitted by law, pending the outcome of such proceedings); (i) the
Trustee shall sign or cause to be signed federal, state or local income tax
or
information returns or any other document prepared by the Securities
Administrator pursuant to this Section 9.13 requiring a signature thereon
by the Trustee; (j) the Securities Administrator shall maintain records relating
to each REMIC formed hereunder including but not limited to the income,
expenses, assets and liabilities of each such REMIC and adjusted basis of the
Trust Fund property determined at such intervals as may be required by the
Code,
as may be necessary to prepare the foregoing returns, schedules, statements
or
information; (k) the Securities Administrator shall, for federal income tax
purposes, maintain books and records with respect to the REMICs on a calendar
year and on an accrual basis; (l) the Securities Administrator shall not enter
into any arrangement not otherwise provided for in this Agreement by which
the
REMICs will receive a fee or other compensation for services nor permit the
REMICs to receive any income from assets other than “qualified mortgages” as
defined in Section 860G(a)(3) of the Code or “permitted investments” as
defined in Section 860G(a)(5) of the Code; and (m) as and when necessary
and appropriate, the Securities Administrator shall represent the Trust Fund
in
any administrative or judicial proceedings relating to an examination or audit
by any governmental taxing authority, request an administrative adjustment
as to
any taxable year of any REMIC formed hereunder, enter into settlement agreements
with any governmental taxing agency, extend any statute of limitations relating
to any tax item of the Trust Fund, and otherwise act on behalf of each REMIC
formed hereunder in relation to any tax matter involving any such
REMIC.
In
order
to enable the Securities Administrator to perform its duties as set forth
herein, the Depositor shall provide, or cause to be provided, to the Securities
Administrator within ten (10) days after the Closing Date all information or
data that the Securities Administrator requests in writing and determines to
be
relevant for tax purposes to the valuations and offering prices of the
Certificates, including, without limitation, the price, yield, prepayment
assumption and projected cash flows of the Certificates and the Mortgage Loans.
Thereafter, the Depositor shall provide to the Securities Administrator promptly
upon written request therefor, any such additional information or data that
the
Securities Administrator may, from time to time, request in order to enable
the
Securities Administrator to perform its duties as set forth herein. The
Depositor hereby indemnifies the Securities Administrator for any losses,
liabilities, damages, claims or expenses of the Securities Administrator arising
from any errors or miscalculations of the Securities Administrator that result
from any failure of the Depositor to provide, or to cause to be provided,
accurate information or data to the Securities Administrator on a timely
basis.
In
the
event that any tax is imposed on “prohibited transactions” of any REMIC as
defined in Section 860F(a)(2) of the Code, on the “net income from
foreclosure property” of the Trust Fund as defined in Section 860G(c) of
the Code, on any contribution to any REMIC after the startup day pursuant to
Section 860G(d) of the Code, or any other tax is imposed, including,
without limitation, any federal, state or local tax or minimum tax imposed
upon
any of REMIC, and is not paid as otherwise provided for herein, such tax shall
be paid by (i) the Securities Administrator, if any such other tax arises out
of
or results from a breach by the Securities Administrator of any of its
obligations under this Section, (ii) any party hereto (other than the Securities
Administrator) to the extent any such other tax arises out of or results from
a
breach by such other party of any of its obligations under this Agreement or
(iii) in all other cases, or in the event that any liable party hereto fails
to
honor its obligations under the preceding clauses (i) or (ii), any such tax
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
M-4 Certificates, second, to the Class M-3 Certificates, third, to the Class
M-2
Certificates, fourth, to the Class M-1 Certificates, and fifth, 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 Securities Administrator 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 Securities Administrator shall include in its monthly report to
Certificateholders distributions to such parties taking into account the
priorities described in the second preceding sentence. The Securities
Administrator agrees to promptly notify in writing the party liable for any
such
tax of the amount thereof and the due date for the payment thereof.
Notwithstanding the foregoing, however, in no event shall the Securities
Administrator have any liability (1) for any action or omission that is taken
in
accordance with and in compliance with the express terms of, or which is
expressly permitted by the terms of this Agreement, (2) for any losses other
than arising out of a grossly negligent performance by the Securities
Administrator of its duties and obligations set forth herein, and (3) for any
special or consequential damages to Certificateholders (in addition to payment
of principal and interest on the Certificates).
ARTICLE
X
TERMINATION
Section
10.01 Termination
Upon Liquidation or Repurchase of all Mortgage Loans.
Subject
to Section 10.03, the obligations and responsibilities of the Depositor,
the Sponsor, the Securities Administrator, the Master Servicer and the Trustee
created hereby with respect to the Trust Fund shall terminate (other than the
obligations of the Master Servicer to the Trustee pursuant to Section 9.05
and of the Securities Administrator to make payments in respect of the REMIC
I
Regular Interests or the Classes of Certificates as hereinafter set forth)
upon
the earlier of (a) the Master Servicer’s exercise of its optional right to
purchase the Mortgage Loans and related REO Properties (the “Cleanup Call”) 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 twenty-one (21) years from the death of the
last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador
of
the United States to the Court of St. Xxxxx, living on the date hereof and
(ii)
the Latest Possible Maturity Date.
The
Cleanup Call or shall be exercisable at a price (the “Termination Price”) equal
to the sum of (i) 100% of the Stated Principal Balance of each Mortgage Loan,
(ii) accrued interest thereon at the applicable Mortgage Rate to, but not
including, the first day of the month of such purchase, (iii) the appraised
value of any related REO Property (up to the Stated Principal Balance of the
related Mortgage Loan), such appraisal to be conducted by an appraiser mutually
agreed upon by the Master Servicer and the Trustee, (iv) unreimbursed
out-of-pocket costs of the Securities Administrator, the Master Servicer, the
Servicer or the Trustee, including unreimbursed servicing advances and the
principal portion of any unreimbursed Advances, made on the related Mortgage
Loans prior to the exercise of such repurchase right and (v) any other amounts
due and owing to the Trustee, the Securities Administrator, the Master Servicer
and the Custodian payable pursuant to this Agreement or the Custodial
Agreement.
The
right
to exercise the Cleanup Call pursuant to the preceding paragraph shall be
exercisable if the Stated Principal Balance of all of the Mortgage Loans at
the
time of any such repurchase, is less than or equal to ten percent (10%) of
the
aggregate Cut-off Date Principal Balance of the Mortgage Loans.
Section
10.02 Final
Distribution on the Certificates.
If
on any
Determination Date, (i) the Securities Administrator determines based on the
reports delivered by the Master Servicer under this Agreement that there are
no
Outstanding Mortgage Loans, and no other funds or assets in the Trust Fund
other
than the funds in the Distribution Account, the Securities Administrator shall
notify the Trustee and send a final distribution notice promptly to each related
Certificateholder or (ii) the Securities Administrator determines that a Class
of Certificates shall be retired after a final distribution on such Class,
the
Securities Administrator shall notify the Trustee and the Certificateholders
within five (5) Business Days after such Determination Date that the final
distribution in retirement of such Class of Certificates is scheduled to be
made
on the immediately following Distribution Date. Any final distribution made
pursuant to the immediately preceding sentence will be made only upon
presentation and surrender of the related Certificates at the office of the
Securities Administrator set forth herein. If the Master Servicer elects to
terminate the Trust Fund pursuant to Section 10.01, at least ten (10) days
prior to the date notice is to be mailed to the Certificateholders, the Master
Servicer shall notify the Securities Administrator and the Trustee of the date
the Master Servicer intends to terminate the Trust Fund. The Master Servicer
shall remit the related Termination Price to the Securities Administrator on
behalf of the Trust Fund on the Business Day prior to the Distribution Date
for
such Optional Termination by the Master Servicer.
Notice
of
the exercise of the Cleanup Call, specifying the Distribution Date on which
the
Certificateholders may surrender their Certificates for payment of the final
distribution and cancellation, shall be given promptly by the Securities
Administrator by letter to the Certificateholders mailed no later than the
fifteenth (15th) day of the month of such final distribution. Any such notice
shall specify (a) the Distribution Date upon which final distribution on the
Certificates will be made upon presentation and surrender of the 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 Securities Administrator will give such notice to each Rating Agency at
the
time such notice is given to the Certificateholders.
In
the
event such notice is given, the Master Servicer shall deposit in the
Distribution Account on the Business Day prior to the applicable Distribution
Date an amount equal to the final distribution in respect of the Certificates.
Upon certification to the Trustee by the Securities Administrator of the making
of such final deposit, the Trustee shall promptly release or cause to be
released to the Master Servicer the Mortgage Files for the remaining Mortgage
Loans, and the Trustee shall execute all assignments, endorsements and other
instruments delivered to it and necessary to effectuate such
transfer.
Upon
presentation and surrender of the related Certificates, the Securities
Administrator shall cause to be distributed to Certificateholders of each Class
the amounts allocable to such Certificates held in the Distribution Account
in
the order and priority set forth in Section 5.04 hereof on the final
Distribution Date and in proportion to their respective Percentage
Interests.
In
the
event that any affected Certificateholders shall not surrender Certificates
for
cancellation within six (6) months after the date specified in the above
mentioned written notice, the Securities Administrator shall give a second
written notice to the remaining affected Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within six (6) months after the second notice all the applicable
Certificates shall not have been surrendered for cancellation, the Securities
Administrator may take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the remaining affected Certificateholders
concerning surrender of their Certificates, and the cost thereof shall be paid
out of the funds and other assets that remain a part of the Trust Fund. If
within two (2) years after the second notice all affected Certificates shall
not
have been surrendered for cancellation, the related Residual Certificateholders
shall be entitled to all unclaimed funds and other assets of the Trust Fund
that
remain subject hereto and the Securities Administrator shall release such funds
upon written direction.
Section
10.03 Additional
Termination Requirements.
In
the
event of (i) the exercise by the Master Servicer of the Cleanup Call pursuant
to
the terms of this Agreement or (ii) the final payment on or other liquidation
of
the last Mortgage Loan or REO Property in REMIC I pursuant to
Section 10.01, the following additional requirements, unless the Trustee
has been supplied with an Opinion of Counsel, at the expense of the Master
Servicer (in the case of the exercise of the Cleanup Call) or the Depositor,
to
the effect that the failure of the Trust Fund to comply with the requirements
of
this Section 10.03 will not (i) result in the imposition of taxes on
“prohibited transactions” of a REMIC, or (ii) cause any REMIC to fail to qualify
as a REMIC at any time that any Certificates are outstanding:
|
(1)
|
The
Master Servicer (in the case of the exercise of the Cleanup Call)
or the
Depositor (in all other cases) shall establish a ninety-day liquidation
period and notify the Securities Administrator thereof, and the Securities
Administrator shall in turn specify the first day of such period
in a
statement attached to the tax return for each REMIC pursuant to Treasury
Regulation Section 1.860F-1. The Master Servicer or the Depositor, as
applicable, shall satisfy all the requirements of a qualified liquidation
under Section 860F of the Code and any regulations thereunder, as
evidenced by an Opinion of Counsel obtained at the expense of the
Master
Servicer or the Depositor, as applicable;
|
|
(2)
|
During
such ninety-day liquidation period, and at or prior to the time of
making
the final payment on the Certificates, the Master Servicer (in the
case of
the exercise of the Cleanup Call) or the Depositor (in all other
cases)
shall sell all of the assets of REMIC I for cash; and
|
|
(3)
|
At
the time of the making of the final payment on the Certificates,
the
Securities Administrator shall distribute or credit, or cause to
be
distributed or credited, to the Holders of the Residual Certificates
all
cash on hand in the Trust Fund (other than cash retained to meet
claims),
and the Trust Fund shall terminate at that
time.
|
By
their
acceptance of the Certificates, the Holders thereof hereby authorize the Master
Servicer (in the case of the exercise of the Cleanup Call) or the Depositor
(in
all other cases) to specify the ninety-day liquidation period for REMIC I and
REMIC II, which authorization shall be binding upon all successor
Certificateholders.
The
Securities Administrator as agent for each REMIC hereby agrees to adopt and
sign
such a plan of complete liquidation upon the written request of the Master
Servicer or the Depositor, as applicable, and the receipt of the Opinion of
Counsel referred to in Section 10.03(1) and to take such other action in
connection therewith as may be reasonably requested by the Master Servicer
or
the Depositor, as applicable.
ARTICLE
XI
MISCELLANEOUS
PROVISIONS
Section
11.01 Amendment.
This
Agreement may be amended from time to time by parties hereto, without the
consent of any of the Certificateholders to cure any ambiguity, to correct
or
supplement any provisions herein, to change the manner in which the Distribution
Account maintained by the Securities Administrator or the Custodial Accounts
maintained by the 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; provided further
that
any such amendment shall be deemed not to adversely affect in any material
respect the interests of the Certificateholders.
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 effect any changes
in the parties obligations as are necessary to accommodate evolving
interpretations of the provisions of Regulation AB and to modify, eliminate
or
add to any of its provisions to such extent as shall be necessary or appropriate
to maintain the qualification of each REMIC as a REMIC under the Code or to
avoid or minimize the risk of the imposition of any tax on any REMIC pursuant
to
the Code that would be a claim against any REMIC at any time prior to the final
redemption of the Certificates, provided that the Trustee has been provided
an
Opinion of Counsel, which opinion shall be an expense of the party requesting
such opinion but in any case shall not be an expense of the Trustee or the
Trust
Fund, to the effect that such action is necessary or appropriate to maintain
such qualification or to avoid or minimize the risk of the imposition of such
a
tax.
This
Agreement may also be amended from time to time by the parties hereto and the
Holders of each Class of Certificates affected thereby evidencing over 50%
of
the Voting Rights of such Class or Classes for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions
of
this Agreement or of modifying in any manner the rights of the Holders of
Certificates; provided that no such amendment shall (i) reduce in any manner
the
amount of, or delay the timing of, payments required to be distributed on any
Certificate without the consent of the Holder of such Certificate, (ii) cause
any REMIC to cease to qualify as a REMIC or (iii) reduce the aforesaid
percentages of Certificates of each Class the Holders of which are required
to
consent to any such amendment without the consent of the Holders of all
Certificates of such Class then outstanding.
Notwithstanding
any contrary provision of this Agreement, the Trustee shall not consent to
any
amendment to this Agreement unless it shall have first received an Opinion
of
Counsel, which opinion shall be an expense of the party requesting such
amendment but in any case shall not be an expense of the Trustee, to the effect
that such amendment will not (other than an amendment pursuant to clause (ii)
of, and in accordance with, the preceding paragraph) cause the imposition of
any
tax on any REMIC or the Certificateholders or cause any REMIC to cease to
qualify as a REMIC at any time that any Certificates are outstanding. Further,
nothing in this Agreement shall require the Trustee to enter into an amendment
without receiving an Opinion of Counsel, satisfactory to the Trustee that (i)
such amendment is permitted and is not prohibited by this Agreement and (ii)
that all requirements for amending this Agreement (including any consent of
the
applicable Certificateholders) have been complied with.
Promptly
after the execution of any amendment to this Agreement requiring the consent
of
Certificateholders, the Trustee shall furnish written notification of the
substance of such amendment to each Certificateholder and each Rating
Agency.
It
shall
not be necessary for the consent of Certificateholders under this
Section to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
The
Trustee may, but shall not be obligated to enter into any amendment that affects
its rights, duties or immunities under this Agreement or otherwise.
Section
11.02 Recordation
of Agreement; Counterparts.
To
the
extent permitted by applicable law, this Agreement is subject to recordation
in
all appropriate public offices for real property records in all of the counties
or other comparable jurisdictions in which any or all of the Mortgaged
Properties are situated, and in any other appropriate public recording office
or
elsewhere. The Sponsor or the Depositor shall effect such recordation at the
Trust’s expense upon the request in writing of a Certificateholder, but only if
such direction is accompanied by an Opinion of Counsel (provided at the expense
of the Certificateholder requesting recordation) to the effect that such
recordation would materially and beneficially affect the interests of the
Certificateholders or is required by law.
For
the
purpose of facilitating the recordation of this Agreement as herein provided
and
for other purposes, this Agreement may be executed simultaneously in any number
of counterparts, each of which counterparts shall be deemed to be an original,
and such counterparts shall constitute but one and the same
instrument.
Section
11.03 Governing
Law.
THIS
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE SUBSTANTIVE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED
IN THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HERETO AND THE CERTIFICATEHOLDERS SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS WITHOUT REGARD TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF OTHER THAN
THE
PROVISIONS OF SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS
LAW.
Section
11.04 Intention
of Parties.
It
is the
express intent of the parties hereto that the conveyance of the Mortgage Notes,
Mortgages, assignments of Mortgages, title insurance policies and any
modifications, extensions and/or assumption agreements and private mortgage
insurance policies relating to the Mortgage Loans by the Sponsor to the
Depositor, and by the Depositor to the Trust Fund be, and be construed as,
an
absolute sale thereof to the Depositor or the Trust Fund, as applicable. It
is,
further, not the intention of the parties that such conveyance be deemed a
pledge thereof by the Sponsor to the Depositor, or by the Depositor to the
Trust
Fund. However, in the event that, notwithstanding the intent of the parties,
such assets are held to be the property of the Sponsor or the Depositor, as
applicable, or if for any other reason this Agreement is held or deemed to
create a security interest in such assets, then (i) this Agreement shall be
deemed to be a security agreement within the meaning of the Uniform Commercial
Code of the State of New York and (ii) each conveyance provided for in this
Agreement shall be deemed to be an assignment and a grant by the Sponsor or
the
Depositor, as applicable, for the benefit of the Certificateholders, of a
security interest in all of the assets that constitute the Trust Fund, whether
now owned or hereafter acquired.
The
Depositor for the benefit of the Certificateholders shall, to the extent
consistent with this Agreement, take such actions as may be necessary to ensure
that, if this Agreement were deemed to create a security interest in the assets
of the Trust Fund, such security interest would be deemed to be a perfected
security interest of first priority under applicable law and will be maintained
as such throughout the term of the Agreement.
Section
11.05 Notices.
The
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:
| (1) |
Any
material change or amendment to this
Agreement;
|
| (2) |
The
occurrence of any Servicer Default or Master Servicer Default that
has not
been cured;
|
| (3) |
The
resignation or termination of the Servicer, the Master Servicer or
the
Trustee and the appointment of any successor;
and
|
| (4) |
The
final payment to
Certificateholders.
|
In
addition, the Securities Administrator shall, upon request, promptly furnish
to
each Rating Agency copies of the following:
| (1) |
Each
Annual Statement of Compliance described in Section 3.13 of this
Agreement; and
|
| (2) |
Each
Assessment of Compliance and Attestation Report described in
Section 3.14.
|
All
directions, demands and notices hereunder shall be in writing and shall be
deemed to have been duly given when delivered at or mailed by registered mail,
return receipt requested, postage prepaid, or by recognized overnight courier,
or by facsimile transmission to a number provided by the appropriate party
if
receipt of such transmission is confirmed to (i) in the case of the Depositor,
Nomura Asset Acceptance Corp., 2 World Xxxxxxxxx Xxxxxx, Xxxxxxxx X, Xxx Xxxx,
Xxx Xxxx 00000 Attention: Nomura Asset Acceptance Corporation, Alternative
Loan
Trust, Series 2006-WF1; (ii) in the case of the Sponsor, Nomura Credit &
Capital, Inc., 2 World Xxxxxxxxx Xxxxxx, Xxxxxxxx X, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Nomura Asset Acceptance Corporation, Alternative Loan Trust, Series
2006-WF1 or such other address as may be hereafter furnished to the other
parties hereto by the Sponsor in writing; (iii) in the case of the Servicer,
Xxxxx Xxxxx Xxxx, X.X., 0 Xxxx Xxxxxx, Xxx Xxxxxx, Xxxx 00000-0000; (iv) in
the
case of the Trustee, at each Corporate Trust Office or such other address as
the
Trustee may hereafter furnish to the other parties hereto; (v) in the case
of
the Custodian, Xxxxx Fargo Bank, N.A., 00 Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxxxx 00000, (vi) in the case of the Securities Administrator, its
Corporate Trust Office; (vii) in the case of the Master Servicer, X.X. Xxx
00,
Xxxxxxxx, Xxxxxxxx 00000 (or for overnight deliveries, 0000 Xxx Xxxxxxxxx Xxxx,
Xxxxxxxx, Xxxxxxxx 00000, Attention Client Manager - NAAC 2006-WF1) and (viii)
in the case of the Rating Agencies, (a) Standard & Poor’s, 00 Xxxxx Xxxxxx,
00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Mortgage Surveillance Group and (b) Xxxxx’x
Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Home Equity Monitoring. Any notice delivered to the Sponsor or the Trustee
under
this Agreement shall be effective only upon receipt. Any notice required or
permitted to be mailed to a Certificateholder, unless otherwise provided herein,
shall be given by first-class mail, postage prepaid, at the address of such
Certificateholder as shown in the Certificate Register; any notice so mailed
within the time prescribed in this Agreement shall be conclusively presumed
to
have been duly given, whether or not the Certificateholder receives such
notice.
Section
11.06 Severability
of Provisions.
If
any
one or more of the covenants, agreements, provisions or terms of this Agreement
shall be for any reason whatsoever held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in no
way
affect the validity or enforceability of the other provisions of this Agreement
or of the Certificates or the rights of the Holders thereof.
Section
11.07 Assignment.
Notwithstanding
anything to the contrary contained herein, except as provided pursuant to
Section 7.02, this Agreement may not be assigned by the Sponsor or the
Depositor.
Section
11.08 Limitation
on Rights of Certificateholders.
The
death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust Fund, nor entitle such Certificateholder’s legal
representative or heirs to claim an accounting or to take any action or commence
any proceeding in any court for a petition or winding up of the Trust Fund,
or
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
No
Certificateholder shall have any right to vote (except as provided herein)
or in
any manner otherwise control the operation and management of the Trust Fund,
or
the obligations of the parties hereto, nor shall anything herein set forth
or
contained in the terms of the Certificates be construed so as to constitute
the
Certificateholders from time to time as partners or members of an association;
nor shall any Certificateholder be under any liability to any third party by
reason of any action taken by the parties to this Agreement pursuant to any
provision hereof.
No
Certificateholder shall have any right by virtue or by availing itself of any
provisions of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement, unless such
Holder previously shall have given to the Trustee, a written notice of a
Servicer Default and of the continuance thereof, as hereinbefore provided,
the
Holders of Certificates evidencing not less than twenty-five percent (25%)
of
the Voting Rights evidenced by the Certificates shall also have made written
request to the Trustee to institute such action, suit or proceeding in its
own
name as Trustee, hereunder and shall have offered to the Trustee such indemnity
satisfactory to it as it may require against the costs, expenses, and
liabilities to be incurred therein or thereby, and the Trustee or for sixty
(60)
days after its receipt of such notice, request and offer of indemnity shall
have
neglected or refused to institute any such action, suit or proceeding; it being
understood and intended, and being expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that
no
one or more Holders of Certificates shall have any right in any manner whatever
by virtue or by availing itself or themselves of any provisions of this
Agreement to affect, disturb or prejudice the rights of the Holders of any
other
of the Certificates, or to obtain or seek to obtain priority over or preference
to any other such Holder or to enforce any right under this Agreement, except
in
the manner herein provided and for the common benefit of all Certificateholders.
For the protection and enforcement of the provisions of this Section 11.08,
each and every Certificateholder or the Trustee shall be entitled to such relief
as can be given either at law or in equity.
Section
11.09 Certificates
Nonassessable and Fully Paid.
It
is the
intention of the Depositor that Certificateholders shall not be personally
liable for obligations of the Trust Fund, that the interests in the Trust Fund
represented by the Certificates shall be nonassessable for any reason
whatsoever, and that the Certificates, upon due authentication thereof by the
Trustee pursuant to this Agreement, are and shall be deemed fully
paid.
Section
11.10 Intention
of the Parties and Interpretation.
Each
of
the parties acknowledges and agrees that the purpose of Sections 3.13, 3.14,
3.18 and 5.12 of this Agreement is to facilitate compliance by the Sponsor,
the
Master Servicer, the Securities Administrator and the Depositor with the
provisions of Regulation AB promulgated by the SEC under the Exchange Act (17
C.F.R. §§ 229.1100 - 229.1123), as such may be amended from time to time and
subject to clarification and interpretive advice as may be issued by the staff
of the SEC from time to time. Therefore, each of the parties agrees that (a)
the
obligations of the parties hereunder shall be interpreted in such a manner
as to
accomplish that purpose, (b) the parties’ obligations hereunder will be
supplemented and modified as necessary to be consistent with any such
amendments, interpretive advice or guidance, convention or consensus among
active participants in the asset-backed securities markets, advice of counsel,
or otherwise in respect of the requirements of Regulation AB and (c) the parties
shall comply with requests made by the Sponsor, the Master Servicer, the
Securities Administrator or the Depositor for delivery of additional or
different information as the Sponsor or the Depositor may determine in good
faith is necessary to comply with the provisions of Regulation AB.
Section
11.11 Early
Termination of the Cap Contract.
In
the
event that the Cap Contract is canceled or otherwise terminated for any reason
(other than the exhaustion of the interest rate protection provided thereby),
the Sponsor shall, to the extent a replacement contract is available, direct
the
Trustee to execute a replacement contract comparable to the Cap Contract which
was cancelled or otherwise terminated, providing interest rate protection which
is equal to the then-existing protection provided by the Cap Contract, which
was
cancelled or otherwise terminated provided, however, that the cost of any such
replacement contract providing the same interest rate protection provided by
such replacement contract may be reduced to a level such that the cost of such
replacement contract shall not exceed the amount of any early termination
payment. If the Trustee is unable to locate a qualified successor Cap Provider,
any early termination payment will be remitted to the Net WAC Reserve Fund
for
the benefit of the
Class
A-1 Certificates
for
distribution by the Securities Administrator to the Class A-1 Certificates
in
accordance with Section 5.04(a), clause Third,
item
3.
IN
WITNESS WHEREOF, the Depositor, the Sponsor, the Master Servicer, the Securities
Administrator and the Trustee have caused their names to be signed hereto by
their respective officers thereunto duly authorized as of the day and year
first
above written.
|
NOMURA
ASSET ACCEPTANCE
CORPORATION,
|
|
|
as
Depositor
|
|
|
By:
/s/
Xxxx X. Xxxxxx
|
|
|
Name:
|
|
|
Title:
|
|
|
NOMURA
CREDIT & CAPITAL, INC.,
|
|
|
as
Sponsor
|
|
|
By:
/s/
Xxxxx X. Xxxxxxx
|
|
|
Name:
Xxxxx X. Xxxxxxx
|
|
|
Title:
Director
|
|
|
XXXXX
FARGO
BANK, NATIONAL
ASSOCIATION,
|
|
|
as
Master Servicer and Securities Administrator
|
|
|
By:
/s/
Xxx Xxxxx
|
|
|
Name:
Xxx Xxxxx
|
|
|
Title:
Vice President
|
|
|
HSBC
BANK
USA, NATIONAL
ASSOCIATION,
|
|
|
as
Trustee
|
|
|
By:
/s/
Xxxxx Xxxxx
|
|
|
Name:
Xxxxx Xxxxx
|
|
|
Title:
Assistant Vice President
|
|
|
With
respect to Sections 3.33 and 3.34
|
|
|
PORTFOLIO
SURVEILLANCE ANALYTICS, LLC
|
|
|
By:
/s/
Xxxxx X. Xxxxx
|
|
|
Name:
Xxxxx X. Xxxxx
|
|
|
Title:
Managing Partner
|
|
|
STATE
OF NEW YORK
|
)
|
|
)
ss.:
|
|
|
COUNTY
OF NEW YORK
|
)
|
On
this
___ day of August 2006, before me, a notary public in and for said State,
appeared _____________, personally known to me on the basis of satisfactory
evidence to be an authorized representative of Nomura 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 NEW YORK
|
)
|
|
)
ss.:
|
|
|
COUNTY
OF NEW YORK
|
)
|
On
this
____ day of August 2006 before me, a notary public in and for said State,
appeared_______________, personally known to me on the basis of satisfactory
evidence to be an authorized representative of Nomura Credit & Capital,
Inc., that executed the within instrument, and also known to me to be the person
who executed it on behalf of such corporation, and acknowledged to me that
such
corporation executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
|
____________________________
|
|
|
Notary
Public
|
[Notarial
Seal]
|
STATE
OF
|
)
|
|
)
ss.:
|
|
|
COUNTY
|
)
|
On
this
____ day of August 2006, before me, a notary public in and for said State,
appeared _________________, personally known to me on the basis of satisfactory
evidence to be an authorized representative of Portfolio Surveillance Analytics,
LLC, 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 August 2006, before me, a notary public in and for said State,
appeared _______________, personally known to me on the basis of satisfactory
evidence to be an authorized representative of HSBC Bank USA, National
Association that executed the within instrument, and also known to me to be
the
person who executed it on behalf of such corporation, and acknowledged to me
that such corporation executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
|
____________________________
|
|
|
Notary
Public
|
[Notarial
Seal]
|
STATE
OF
|
)
|
|
)
ss.:
|
|
|
COUNTY
OF
|
)
|
On
this
____ day of August 2006, before me, a notary public in and for said State,
appeared _______________, personally known to me on the basis of satisfactory
evidence to be an authorized representative of Xxxxx Fargo Bank, National
Association that executed the within instrument, and also known to me to be
the
person who executed it on behalf of such entity, and acknowledged to me that
such entity executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
|
____________________________
|
|
|
Notary
Public
|
[Notarial
Seal]
EXHIBIT
A-1
FORM
OF CLASS
A-[1][2][3][4][5][6] CERTIFICATE
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
(THE “CODE”).
THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DECREASED BY THE
PRINCIPAL PAYMENTS HEREON. ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF
THE
CERTIFICATES, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL
BE
DIFFERENT FROM THE DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE
MAY ASCERTAIN ITS CERTIFICATE PRINCIPAL BALANCE BY INQUIRY OF THE SECURITIES
ADMINISTRATOR NAMED HEREIN.
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY TO THE DEPOSITOR OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF
CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON
IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
|
Certificate
No. __
|
Initial
Pass-Through Rate: [Variable][____%]
|
|
Class
A-[1][2][3][4][5][6] Senior
|
|
|
Date
of Pooling and Servicing Agreement
and
Cut-off Date: August 1, 2006
|
Aggregate
Initial Certificate Principal Balance of the Class A-[1][2][3][4][5][6]
Certificates as of the Cut-off Date:
$
|
|
Trustee:
HSBC Bank USA, National Association
|
|
|
First
Distribution Date: September 25, 2006
|
Initial
Certificate Principal Balance of this Certificate as of the Cut-off
Date:
$
|
|
Master
Servicer and Securities Administrator:
Xxxxx
Fargo Bank, N.A.
|
|
|
Assumed
Final Distribution Date:
June
25, 2036
|
CUSIP:
[__________________]
|
MORTGAGE
PASS-THROUGH CERTIFICATE
SERIES
2006-WF1
evidencing
a fractional undivided interest in the distributions allocable to the Class
A-[1][2][3][4][5][6] 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, the Securities Administrator
or any
of their affiliates will have any obligation with respect to any certificate
or
other obligation secured by or payable from payments on the
Certificates.
This
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 “Sponsor”)
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 Sponsor, HSBC Bank USA, National Association,
as trustee (the “Trustee”), and Xxxxx Fargo Bank, N.A., as master servicer (the
“Master Servicer”) and securities administrator (the “Securities
Administrator”), a summary of certain of the pertinent provisions of which is
set forth hereafter. To the extent not defined herein, capitalized terms
used
herein shall have the meaning ascribed to them in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of its acceptance hereof assents and by which such Holder is
bound.
Interest
on this Certificate will accrue during [FOR CLASS A-1 CERTIFICATES][the period
from and including the 25th day of the calendar month preceding the calendar
month in which such Distribution Date occurs (or with respect to the first
Accrual Period, the Closing Date) to and including the 24th day of the calendar
month in which such Distribution Date occurs] [FOR CLASS A-[2][3][4][5][6]][the
calendar month immediately preceding the calendar month in which such
Distribution Date occurs] on the Certificate Principal Balance hereof at
a per
annum Pass-Through Rate equal to [FOR CLASS A-1 CERTIFICATES][the lesser
of (i)
One-Month LIBOR plus [______]% per annum and (ii) the Net WAC Rate Cap for
such
Distribution Date] [FOR CLASS A-[2][3][4]] CERTIFICATES][ the Initial
Pass-Through Rate set forth on the face hereof for the First Distribution
Date
and, for each Distribution Date thereafter, the lesser of (i) [______]% per
annum and (ii) the Net WAC Rate Cap for such Distribution Date] [FOR CLASS
A-[5][6] CERTIFICATES][ the Initial Pass-Through Rate set forth on the face
hereof for the First Distribution Date, and for each Distribution Date
thereafter, the lesser of (i)(a) with respect to any Distribution Date which
occurs on or prior to the Optional Termination Date, [_____]% per annum and
(b)
with respect to each Distribution Date which occurs thereafter, [_____]%
per
annum and (ii) the Net WAC Rate Cap for such Distribution Date]. The Securities
Administrator will distribute on the 25th day of each month, or, if such
25th
day is not a Business Day, the immediately following Business Day (each,
a
“Distribution Date”), commencing on the First Distribution Date specified above,
to the Person in whose name this Certificate is registered on the applicable
Record Date, an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount (of interest and principal, if any) required
to be distributed to the Holders of Certificates of the same Class as this
Certificate. The Assumed Final Distribution Date is the Distribution Date
in
June 2036 which is not likely to be the date on which the Certificate Principal
Balance of this Class of Certificates will be reduced to zero.
Distributions
on this Certificate will be made by the Securities Administrator by check
mailed
to the address of the Person entitled thereto as such name and address shall
appear on the Certificate Register or, if such Person so requests by notifying
the Securities Administrator in writing as specified in the Agreement.
Notwithstanding the above, the final distribution on this Certificate will
be
made after due notice by the Securities Administrator of the pendency of
such
distribution and only upon presentation and surrender of this Certificate
at the
office or agency appointed by the Securities Administrator for that purpose
and
designated in such notice. The initial Certificate Principal Balance of this
Certificate is set forth above. The Certificate Principal Balance hereof
will be
reduced to the extent of distributions allocable to principal
hereon.
This
Certificate is one of a duly authorized issue of Certificates designated
as set
forth on the face hereof (the “Certificates”). The Certificates, in the
aggregate, evidence the entire beneficial ownership interest in the Trust
Fund
formed pursuant to the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the Trust Fund for payment hereunder and that the Trustee
is not
liable to the Certificateholders for any amount payable under this Certificate
or the Agreement or, except as expressly provided in the Agreement, subject
to
any liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced hereby, and the rights, duties and immunities
of the Securities Administrator. This Certificate is limited in right of
payment
to certain collections and recoveries respecting the Mortgage Loans and other
assets included in the Trust Fund relating to the Mortgage Loans [FOR CLASS
A-1
ONLY: (including the Cap Agreement)], all as more specifically set forth
in the
Agreement.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor
and
the rights of the Certificateholders under the Agreement from time to time
by
the parties thereto with the consent of the Holders of the Class or Classes
of
Certificates affected thereby evidencing over 50% of the Voting Rights of
such
Class or Classes. Any such consent by the Holder of this Certificate shall
be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable with the Securities
Administrator upon surrender of this Certificate for registration of transfer
at
the offices or agencies maintained by the Securities Administrator for such
purposes, duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Securities Administrator duly executed by the
Holder
hereof or such Holder’s attorney duly authorized in writing, and thereupon one
or more new Certificates in authorized denominations representing a like
aggregate Percentage Interest will be issued to the designated
transferee.
The
Certificates are issuable only as registered Certificates without coupons
in the
Classes and denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, this Certificate
is exchangeable for one or more new Certificates evidencing the same Class
and
in the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made to the Certificateholders for any such registration
of transfer, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. The Depositor, the Master Servicer, the Trustee, the Securities
Administrator and any agent of any of them may treat the Person in whose
name
this Certificate is registered as the owner hereof for all purposes, and
none of
the Depositor, the Master Servicer, the Trustee, the Securities Administrator
or
any such agent shall be affected by notice to the contrary.
The
obligations created by the Agreement 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 by the Master Servicer
only on or after the Distribution Date on which the Stated Principal Balance
of
the Mortgage Loans is less than or equal to 10% of the Cut-off Date Principal
Balance of the Mortgage Loans. 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 earlier of (i) the expiration
of 21
years after the death of certain persons identified in the Agreement and
(ii)
the Assumed Final Distribution Date.
Unless
this Certificate has been countersigned by an authorized signatory of the
Securities Administrator by manual signature, this Certificate shall not
be
entitled to any benefit under the Agreement, or be valid for any
purpose.
IN
WITNESS WHEREOF, the Securities Administrator has caused this Certificate
to be
duly executed.
|
Dated: August
__, 2006
|
XXXXX
FARGO BANK, N.A., as Securities Administrator
|
||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory
|
|||||||||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Class A-[1][2][3][4][5][6] Certificates referred to in the
within-mentioned Agreement.
|
XXXXX
FARGO BANK, N.A., as Securities Administrator
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory
|
|||||||||||||
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
__________________________________ (Please print or typewrite name and address
including postal zip code of assignee) a Percentage Interest evidenced by
the
within Asset-Backed Certificate and hereby authorizes the transfer of
registration of such interest to assignee on the Certificate Register of
the
Trust Fund.
I
(We)
further direct the Certificate Registrar to issue a new Certificate of a
like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
|
.
|
|
Dated:
|
|
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-2
FORM
OF CLASS M-[1][2][3][4] CERTIFICATE
THIS
CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE SENIOR CERTIFICATES
[[,/AND] THE CLASS M-1 CERTIFICATES] [[,/AND] [THE CLASS M-2 CERTIFICATES]
[AND
THE CLASS M-3 CERTIFICATES] AS DESCRIBED IN THE AGREEMENT (AS DEFINED
BELOW).
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
(THE “CODE”).
THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DECREASED BY THE
PRINCIPAL PAYMENTS HEREON AND REALIZED LOSSES ALLOCABLE HERETO. ACCORDINGLY,
FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES, THE CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE WILL BE DIFFERENT FROM THE DENOMINATION SHOWN
BELOW.
ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CERTIFICATE PRINCIPAL
BALANCE BY INQUIRY OF THE SECURITIES ADMINISTRATOR NAMED
HEREIN.
ANY
TRANSFEREE OF THIS CERTIFICATE SHALL BE DEEMED TO MAKE THE REPRESENTATIONS
SET
FORTH IN SECTION 6.02(b) OF THE AGREEMENT.
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY TO THE DEPOSITOR OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF
CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON
IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
|
Certificate
No. __
|
Pass-Through
Rate: ___%
|
|
Class
M-[1][2][3][4]
Subordinate
|
|
|
Date
of Pooling and Servicing Agreement
and
Cut-off Date: August 1, 2006
|
Aggregate
Initial Certificate Principal Balance of this Class M-[1][2][3][4]
Certificate as of the Cut-off Date:
$_______________
|
|
Trustee:
HSBC Bank USA, National Association
|
|
|
First
Distribution Date:
September
25, 2006
|
Initial
Certificate Principal Balance of this Certificate as of the Cut-off
Date:
$________________
|
|
Master
Servicer and Securities Administrator: Xxxxx Fargo Bank,
N.A.
|
|
|
Assumed
Final Distribution Date:
June
25, 2036
|
CUSIP:
[__________________]
|
MORTGAGE
PASS-THROUGH CERTIFICATE
SERIES
2006-WF1
evidencing
a fractional undivided interest in the distributions allocable to the Class
M-[1][2][3][4] 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, the Securities Administrator
or any
of their affiliates will have any obligation with respect to any certificate
or
other obligation secured by or payable from payments on the
Certificates.
This
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 “Sponsor”) 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 Sponsor, HSBC Bank USA, National Association,
as trustee (the “Trustee”) and Xxxxx Fargo Bank, N.A. as master servicer (the
“Master Servicer”) and securities administrator (the “Securities
Administrator”), a summary of certain of the pertinent provisions of which is
set forth hereafter. To the extent not defined herein, capitalized terms
used
herein shall have the meaning ascribed to them in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of its acceptance hereof assents and by which such Holder is
bound.
Interest
on this Certificate will accrue during the calendar month prior to the calendar
month in which a Distribution Date (as hereinafter defined) occurs on the
Certificate Principal Balance hereof at a per annum Pass-Through Rate equal
to
the Initial Pass-Through Rate set forth on the face hereof for the First
Distribution Date and, for each Distribution Date thereafter, the lesser
of
(i)(a) with respect to each Distribution Date which occurs on or prior to
the
Optional Termination Date, [____]% per annum and (b) with respect to each
Distribution Date which occurs thereafter, [____]% per annum and (ii) the
Net
WAC Rate Cap for such Distribution Date. The Securities Administrator will
distribute on the 25th day of each month, or, if such 25th day is not a Business
Day, the immediately following Business Day (each, a “Distribution Date”),
commencing on the First Distribution Date specified above, to the Person
in
whose name this Certificate is registered at the close of business on the
last
Business Day of the calendar month immediately preceding the month in which
the
Distribution Date occurs, an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount (of interest and
principal, if any) required to be distributed to the Holders of Certificates
of
the same Class as this Certificate. The Assumed Final Distribution Date is
the
Distribution Date in the month of the latest scheduled maturity date of any
Mortgage Loan 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 Securities Administrator by check
mailed
to the address of the Person entitled thereto as such name and address shall
appear on the Certificate Register or, if such Person so requests by notifying
the Securities Administrator in writing as specified in the Agreement.
Notwithstanding the above, the final distribution on this Certificate will
be
made after due notice by the Securities Administrator of the pendency of
such
distribution and only upon presentation and surrender of this Certificate
at the
office or agency appointed by the Securities Administrator for that purpose
and
designated in such notice. The initial Certificate Principal Balance of this
Certificate is set forth above. The Certificate Principal Balance hereof
will be
reduced to the extent of distributions allocable to principal hereon and
any
Realized Losses allocable hereto.
This
Certificate is one of a duly authorized issue of Certificates designated
as set
forth on the face hereof (the “Certificates”). The Certificates, in the
aggregate, evidence the entire beneficial ownership interest in the Trust
Fund
formed pursuant to the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the Trust Fund for payment hereunder and that the Trustee
is not
liable to the Certificateholders for any amount payable under this Certificate
or the Agreement or, except as expressly provided in the Agreement, subject
to
any liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced hereby, and the rights, duties and immunities
of the Securities Administrator. The Certificates are limited in right of
payment to certain collections and recoveries respecting the Mortgage Loans
and
other assets included in the Trust Fund relating to the Mortgage Loans, all
as
more specifically set forth in the Agreement.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor
and
the rights of the Certificateholders under the Agreement from time to time
by
the parties thereto with the consent of the Holders of the Class or Classes
of
Certificates affected thereby evidencing over 50% of the Voting Rights of
such
Class or Classes. Any such consent by the Holder of this Certificate shall
be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable with the Securities
Administrator upon surrender of this Certificate for registration of transfer
at
the offices or agencies maintained by the Securities Administrator for such
purposes, duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Securities Administrator duly executed by the
Holder
hereof or such Holder’s attorney duly authorized in writing, and thereupon one
or more new Certificates in authorized denominations representing a like
aggregate Percentage Interest will be issued to the designated
transferee.
Any
transferee of this Certificate shall be deemed to make the representations
set
forth in Section 6.02(b) of the Agreement.
The
Certificates are issuable only as registered Certificates without coupons
in the
Classes and denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, this Certificate
is exchangeable for one or more new Certificates evidencing the same Class
and
in the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made to the Certificateholders for any such registration
of transfer, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. The Depositor, the Master Servicer, the Trustee, the Securities
Administrator and any agent of any of them may treat the Person in whose
name
this Certificate is registered as the owner hereof for all purposes, and
none of
the Depositor, the Master Servicer, the Trustee, the Securities Administrator
or
any such agent shall be affected by notice to the contrary.
The
obligations created by the Agreement 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 by the Master Servicer
only on or after the Distribution Date on which the Stated Principal Balance
of
the Mortgage Loans is less than or equal to 10% of the Cut-off Date Principal
Balance of the Mortgage Loans. 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 earlier of (i) the expiration
of 21
years after the death of certain persons identified in the Agreement and
(ii)
the Assumed Final Distribution Date.
Unless
this Certificate has been countersigned by an authorized signatory of the
Securities Administrator by manual signature, this Certificate shall not
be
entitled to any benefit under the Agreement, or be valid for any
purpose.
IN
WITNESS WHEREOF, the Securities Administrator has caused this Certificate
to be
duly executed.
|
Dated: August
__, 2006
|
XXXXX
FARGO BANK, N.A., as Securities Administrator
|
||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory
|
|||||||||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Class M-[1][2][3][4] Certificates referred to in the within-mentioned
Agreement.
|
XXXXX
FARGO BANK, N.A., as Securities Administrator
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory
|
|||||||||||||
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
__________________________________ (Please print or typewrite name and address
including postal zip code of assignee) a Percentage Interest evidenced by
the
within Asset-Backed Certificate and hereby authorizes the transfer of
registration of such interest to assignee on the Certificate Register of
the
Trust Fund.
I
(We)
further direct the Certificate Registrar to issue a new Certificate of a
like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
|
.
|
|
Dated:
|
|
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
Account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
Assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-3
FORM
OF CLASS X CERTIFICATE
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
(THE “CODE”).
THIS
CERTIFICATE IS SUBORDINATE TO THE SENIOR CERTIFICATES AND MEZZANINE CERTIFICATES
TO THE EXTENT DESCRIBED IN THE AGREEMENT REFERRED TO
HEREIN.
THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF
1933, AS AMENDED (THE “SECURITIES ACT”), OR UNDER ANY STATE SECURITIES LAWS. THE
HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE
MAY
BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE
WITH
THE SECURITIES ACT AND OTHER APPLICABLE LAWS AND ONLY (1) PURSUANT TO RULE
144A
UNDER THE SECURITIES ACT (“RULE 144A”) TO A PERSON THAT THE HOLDER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A
(A
“QIB”), PURCHASING FOR ITS OWN ACCOUNT OR A QIB PURCHASING FOR THE ACCOUNT OF
A
QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE,
PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) PURSUANT
TO
AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES
ACT (IF
AVAILABLE) OR (3) IN CERTIFICATED FORM TO AN “INSTITUTIONAL ACCREDITED INVESTOR”
WITHIN THE MEANING THEREOF IN RULE 501(a)(1), (2), (3) or (7) OF REGULATION
D
UNDER THE ACT OR ANY ENTITY IN WHICH ALL OF THE EQUITY OWNERS COME WITHIN
SUCH
PARAGRAPHS PURCHASING NOT FOR DISTRIBUTION IN VIOLATION OF THE SECURITIES
ACT,
SUBJECT TO (A) THE RECEIPT BY THE SECURITIES ADMINISTRATOR OF A LETTER
SUBSTANTIALLY IN THE FORM PROVIDED IN THE AGREEMENT AND (B) THE RECEIPT BY
THE
SECURITIES ADMINISTRATOR OF SUCH OTHER EVIDENCE ACCEPTABLE TO THE SECURITIES
ADMINISTRATOR THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE
WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS OR IN EACH CASE IN ACCORDANCE
WITH ALL APPLICABLE SECURITIES LAWS OF THE UNITED STATES AND ANY OTHER
APPLICABLE JURISDICTION.
NO
TRANSFER OF THIS CERTIFICATE SHALL BE MADE TO ANY PERSON, UNLESS THE TRANSFEREE
PROVIDES A CERTIFICATION PURSUANT TO SECTION 6.02(b) OF THE
AGREEMENT.
|
Certificate
No. __
|
Percentage
Interest: ____
|
|
Class
X
|
Variable
Pass-Through Rate
|
|
Date
of Pooling and Servicing Agreement and Cut-off Date: August 1,
2006
|
Initial
Certificate Notional Balance of this Certificate as of the Cut-off
Date:
|
|
Trustee:
HSBC Bank USA, National Association
|
|
|
First
Distribution Date: September 25, 2006
|
|
|
Master
Servicer and Securities Administrator: Xxxxx Fargo Bank,
N.A.
|
|
|
Assumed
Final Distribution Date: June 25, 2036
|
CUSIP:
[__________________]
|
MORTGAGE
PASS-THROUGH CERTIFICATE
SERIES
2006-WF1
evidencing
a fractional undivided interest in the distributions allocable to the Class
X
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 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, the
Securities Administrator or any of their affiliates will have any obligation
with respect to any certificate or other obligation secured by or payable
from
payments on the Certificates.
This
certifies that Nomura Securities International, Inc. 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
“Sponsor”) 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 Sponsor, HSBC Bank
USA, National Association, as trustee (the “Trustee”) and Xxxxx Fargo Bank,
N.A., as master servicer (the “Master Servicer”) and securities administrator
(the “Securities Administrator”), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
capitalized terms used herein shall have the meaning ascribed to them in
the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder
of
this Certificate by virtue of its acceptance hereof assents and by which
such
Holder is bound.
Interest
on this Certificate will accrue during the month prior to the month in which
a
Distribution Date (as hereinafter defined) occurs on the Certificate Notional
Balance hereof at a per annum rate equal to the Class X Pass-Through Rate
as set
forth in the Agreement. The Securities Administrator will distribute on the
25th
day of each month, or, if such 25th day is not a Business Day, the immediately
following Business Day (each, a “Distribution Date”), commencing on the First
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last day Business Day immediately
preceding such Distribution Date, an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required
to be
distributed to the Holders of Certificates of the same Class as this
Certificate. The Assumed Final Distribution Date is the Distribution Date
in the
month of the latest scheduled maturity date of any Mortgage Loan.
Distributions
on this Certificate will be made by the Securities Administrator by check
mailed
to the address of the Person entitled thereto as such name and address shall
appear on the Certificate Register or, if such Person so requests by notifying
the Securities Administrator in writing as specified in the Agreement.
Notwithstanding the above, the final distribution on this Certificate will
be
made after due notice by the Securities Administrator of the pendency of
such
distribution and only upon presentation and surrender of this Certificate
at the
office or agency appointed by the Securities Administrator for that purpose
and
designated in such notice.
No
transfer of this Certificate shall be made unless the transfer is made pursuant
to an effective registration statement under the Securities Act of 1933,
as
amended (the “1933 Act”), and an effective registration or qualification under
applicable state securities laws, or is made in a transaction that does not
require such registration or qualification. In the event that such a transfer
of
this Certificate is to be made without registration or qualification, the
Securities Administrator shall require receipt of (i) if such transfer is
purportedly being made in reliance upon Rule 144A under the 1933 Act, written
certifications from the Holder of the Certificate desiring to effect the
transfer, and from such Holder’s prospective transferee, substantially in the
forms attached to the Agreement as Exhibit E and either F or G, as applicable,
and (ii) in all other cases, an Opinion of Counsel satisfactory to it that
such
transfer may be made without such registration or qualification (which Opinion
of Counsel shall not be an expense of the Trust Fund or of the Depositor,
the
Securities Administrator or the Trustee in their respective capacities as
such),
together with copies of the written certification(s) of the Holder of the
Certificate desiring to effect the transfer and/or such Holder’s prospective
transferee upon which such Opinion of Counsel is based. Neither the Depositor,
the Securities Administrator nor the Trustee is obligated to register or
qualify
the Class of Certificates specified on the face hereof under the 1933 Act
or any
other securities law or to take any action not otherwise required under the
Agreement to permit the transfer of such Certificates without registration
or
qualification. Any Holder desiring to effect a transfer of this Certificate
shall be required to indemnify the Trustee, the Securities Administrator,
the
Depositor and the Sponsor against any liability that may result if the transfer
is not so exempt or is not made in accordance with such federal and state
laws.
No
transfer of this Certificate shall be made to any person unless the transferee
provides a certification pursuant to Section 6.02(b) of the
Agreement.
This
Certificate is one of a duly authorized issue of Certificates designated
as set
forth on the face hereof (the “Certificates”). The Certificates, in the
aggregate, evidence the entire beneficial ownership interest in the Trust
Fund
formed pursuant to the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the Trust Fund for payment hereunder and that the Securities
Administrator is not liable to the Certificateholders for any amount payable
under this Certificate or the Agreement or, except as expressly provided
in the
Agreement, subject to any liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced hereby, and the rights, duties and immunities
of the Securities Administrator.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor
and
the rights of the Certificateholders under the Agreement from time to time
by
the parties thereto with the consent of the Holders of the Class or Classes
of
Certificates affected thereby evidencing over 50% of the Voting Rights of
such
Class or Classes. Any such consent by the Holder of this Certificate shall
be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable with the Securities
Administrator upon surrender of this Certificate for registration of transfer
at
the offices or agencies maintained by the Securities Administrator for such
purposes, duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Securities Administrator duly executed by the
Holder
hereof or such Holder’s attorney duly authorized in writing, and thereupon one
or more new Certificates in authorized denominations representing a like
aggregate Percentage Interest will be issued to the designated
transferee.
The
Certificates are issuable only as registered Certificates without coupons
in the
Classes and denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, this Certificate
is exchangeable for one or more new Certificates evidencing the same Class
and
in the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made to the Certificateholders for any such registration
of transfer, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. The Depositor, the Master Servicer, the Trustee, the Securities
Administrator and any agent of any of them may treat the Person in whose
name
this Certificate is registered as the owner hereof for all purposes, and
none of
the Depositor, the Master Servicer, the Trustee, the Securities Administrator
or
any such agent shall be affected by notice to the contrary.
The
obligations created by the Agreement 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 by the Master Servicer
only on or after the Distribution Date on which the Stated Principal Balance
of
the Mortgage Loans is less than or equal to 10% of the Cut-off Date Principal
Balance of the Mortgage Loans. 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 earlier of (i) the expiration
of 21
years after the death of certain persons identified in the Agreement and
(ii)
the Assumed Final Distribution Date.
Unless
this Certificate has been countersigned by an authorized signatory of the
Securities Administrator by manual signature, this Certificate shall not
be
entitled to any benefit under the Agreement, or be valid for any
purpose.
IN
WITNESS WHEREOF, the Securities Administrator has caused this Certificate
to be
duly executed.
|
Dated: August
__, 2006
|
XXXXX
FARGO BANK, N.A., as Securities Administrator
|
||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory
|
|||||||||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Class X Certificates referred to in the within-mentioned
Agreement.
|
XXXXX
FARGO BANK, N.A., as Securities Administrator
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory
|
|||||||||||||
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
__________________________________ (Please print or typewrite name and address
including postal zip code of assignee) a Percentage Interest evidenced by
the
within Asset-Backed Certificate and hereby authorizes the transfer of
registration of such interest to assignee on the Certificate Register of
the
Trust Fund.
I
(We)
further direct the Certificate Registrar to issue a new Certificate of a
like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
|
.
|
|
Dated:
|
|
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-4
FORM
OF 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”).
THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF
1933, AS AMENDED (THE “SECURITIES ACT”), OR UNDER ANY STATE SECURITIES LAWS. THE
HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE
MAY
BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE
WITH
THE SECURITIES ACT AND OTHER APPLICABLE LAWS AND ONLY (1) PURSUANT TO RULE
144A
UNDER THE SECURITIES ACT (“RULE 144A”) TO A PERSON THAT THE HOLDER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A
(A
“QIB”), PURCHASING FOR ITS OWN ACCOUNT OR A QIB PURCHASING FOR THE ACCOUNT OF
A
QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE,
PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) PURSUANT
TO
AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES
ACT (IF
AVAILABLE) OR (3) IN CERTIFICATED FORM TO AN “INSTITUTIONAL ACCREDITED INVESTOR”
WITHIN THE MEANING THEREOF IN RULE 501(a)(1), (2), (3) or (7) OF REGULATION
D
UNDER THE ACT OR ANY ENTITY IN WHICH ALL OF THE EQUITY OWNERS COME WITHIN SUCH
PARAGRAPHS PURCHASING NOT FOR DISTRIBUTION IN VIOLATION OF THE SECURITIES
ACT,
SUBJECT TO (A) THE RECEIPT BY THE SECURITIES ADMINISTRATOR OF A LETTER
SUBSTANTIALLY IN THE FORM PROVIDED IN THE AGREEMENT AND (B) THE RECEIPT BY
THE
SECURITIES ADMINISTRATOR OF SUCH OTHER EVIDENCE ACCEPTABLE TO THE SECURITIES
ADMINISTRATOR THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE
WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS OR IN EACH CASE IN ACCORDANCE
WITH ALL APPLICABLE SECURITIES LAWS OF THE UNITED STATES AND ANY OTHER
APPLICABLE JURISDICTION.
NO
TRANSFER OF THIS CERTIFICATE SHALL BE MADE TO ANY PERSON, UNLESS THE TRANSFEREE
PROVIDES A CERTIFICATION PURSUANT TO SECTION 6.02(b) OF THE
AGREEMENT.
|
Certificate
No. ___
|
Percentage
Interest: 100%
|
|
Class
P
|
|
|
Date
of Pooling and Servicing Agreement and Cut-off Date: August 1,
2006
|
Aggregate
Initial Certificate Principal Balance of the Class P Certificates
as of
the Cut-off Date: $100
|
|
First
Distribution Date: September 25, 2006
|
Initial
Certificate Principal Balance of the Certificate as of the Cut-off
Date:
$100
|
|
Trustee:
HSBC Bank USA, National Association
|
|
|
Master
Servicer and Securities Administrator: Xxxxx Fargo Bank,
N.A.
|
|
|
Assumed
Final Distribution Date: June 25, 2036
|
|
|
CUSIP:
[__________________]
|
MORTGAGE
PASS-THROUGH CERTIFICATE
SERIES
2006-WF1
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-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, the
Securities Administrator or any of their affiliates will have any obligation
with respect to any certificate or other obligation secured by or payable
from
payments on the Certificates.
This
certifies that Nomura Securities International, Inc. 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
“Sponsor”) 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 Sponsor, HSBC Bank
USA, National Association, as trustee (the “Trustee”) and Xxxxx Fargo Bank, N.A.
as master servicer (the “Master Servicer) and securities administrator (the
“Securities Administrator”), a summary of certain of the pertinent provisions of
which is set forth hereafter. To the extent not defined herein, capitalized
terms used herein shall have the meaning ascribed to them in the Agreement.
This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of its acceptance hereof assents and by which such Holder is
bound.
The
Securities Administrator will distribute on the 25th day of each month, or,
if
such 25th day is not a Business Day, the immediately following Business Day
(each, a “Distribution Date”), commencing on the First Distribution Date
specified above, to the Person in whose name this Certificate is registered
at
the close of business on the last day (or if such last day is not a Business
Day, the Business Day immediately preceding such last day) of the calendar
month
immediately preceding the month in which the Distribution Date occurs, an
amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to the Holders of Certificates
of the
same Class as this Certificate. The Assumed Final Distribution Date is the
Distribution Date in the month following the latest scheduled maturity date
of
any Mortgage Loan.
Distributions
on this Certificate will be made by the Securities Administrator by check
mailed
to the address of the Person entitled thereto as such name and address shall
appear on the Certificate Register or, if such Person so requests by notifying
the Securities Administrator in writing as specified in the Agreement.
Notwithstanding the above, the final distribution on this Certificate will
be
made after due notice by the Securities Administrator of the pendency of
such
distribution and only upon presentation and surrender of this Certificate
at the
office or agency appointed by the Securities Administrator for that purpose
and
designated in such notice.
No
transfer of this Certificate shall be made unless the transfer is made pursuant
to an effective registration statement under the Securities Act of 1933,
as
amended (the “1933 Act”), and an effective registration or qualification under
applicable state securities laws, or is made in a transaction that does not
require such registration or qualification. In the event that such a transfer
of
this Certificate is to be made without registration or qualification, the
Securities Administrator shall require receipt of (i) if such transfer is
purportedly being made in reliance upon Rule 144A under the 1933 Act, written
certifications from the Holder of the Certificate desiring to effect the
transfer, and from such Holder’s prospective transferee, substantially in the
forms attached to the Agreement as Exhibit E and either F or G, as applicable,
and (ii) in all other cases, an Opinion of Counsel satisfactory to it that
such
transfer may be made without such registration or qualification (which Opinion
of Counsel shall not be an expense of the Trust Fund or of the Depositor,
the
Securities Administrator or the Trustee in their respective capacities as
such),
together with copies of the written certification(s) of the Holder of the
Certificate desiring to effect the transfer and/or such Holder’s prospective
transferee upon which such Opinion of Counsel is based. Neither the Depositor,
the Securities Administrator nor the Trustee is obligated to register or
qualify
the Class of Certificates specified on the face hereof under the 1933 Act
or any
other securities law or to take any action not otherwise required under the
Agreement to permit the transfer of such Certificates without registration
or
qualification. Any Holder desiring to effect a transfer of this Certificate
shall be required to indemnify the Trustee, the Securities Administrator,
the
Depositor and the Sponsor against any liability that may result if the transfer
is not so exempt or is not made in accordance with such federal and state
laws.
No
transfer of this Certificate shall be made to any person unless the transferee
provides a certification pursuant to Section 6.02(b) of the
Agreement.
This
Certificate is one of a duly authorized issue of Certificates designated
as set
forth on the face hereof (the “Certificates”). The Certificates, in the
aggregate, evidence the entire beneficial ownership interest in the Trust
Fund
formed pursuant to the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the Trust Fund for payment hereunder and that the Securities
Administrator is not liable to the Certificateholders for any amount payable
under this Certificate or the Agreement or, except as expressly provided
in the
Agreement, subject to any liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced hereby, and the rights, duties and immunities
of the Securities Administrator.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor
and
the rights of the Certificateholders under the Agreement from time to time
by
the parties thereto with the consent of the Holders of the Class or Classes
of
Certificates affected thereby evidencing over 50% of the Voting Rights of
such
Class or Classes. Any such consent by the Holder of this Certificate shall
be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable with the Securities
Administrator upon surrender of this Certificate for registration of transfer
at
the offices or agencies maintained by the Securities Administrator for such
purposes, duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Securities Administrator duly executed by the
Holder
hereof or such Holder’s attorney duly authorized in writing, and thereupon one
or more new Certificates in authorized denominations representing a like
aggregate Percentage Interest will be issued to the designated
transferee.
The
Certificates are issuable only as registered Certificates without coupons
in the
Classes and denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, this Certificate
is exchangeable for one or more new Certificates evidencing the same Class
and
in the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made to the Certificateholders for any such registration
of transfer, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. The Depositor, the Master Servicer, the Trustee, the Securities
Administrator and any agent of any of them may treat the Person in whose
name
this Certificate is registered as the owner hereof for all purposes, and
none of
the Depositor, the Master Servicer, the Trustee, the Securities Administrator
or
any such agent shall be affected by notice to the contrary.
The
obligations created by the Agreement 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 by the Master Servicer
only on or after the Distribution Date on which the Stated Principal Balance
of
the Mortgage Loans is less than or equal to 10% of the Cut-off Date Principal
Balance of the Mortgage Loans. 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 earlier of (i) the expiration
of 21
years after the death of certain persons identified in the Agreement and
(ii)
the Assumed Final Distribution Date.
Unless
this Certificate has been countersigned by an authorized signatory of the
Securities Administrator by manual signature, this Certificate shall not
be
entitled to any benefit under the Agreement, or be valid for any
purpose.
IN
WITNESS WHEREOF, the Securities Administrator has caused this Certificate
to be
duly executed.
|
Dated: May
__, 2006
|
XXXXX
FARGO BANK, N.A., as Securities Administrator
|
||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory
|
|||||||||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Class P Certificates referred to in the within-mentioned
Agreement.
|
XXXXX
FARGO BANK, N.A., as Securities Administrator
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory
|
|||||||||||||
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
__________________________________ (Please print or typewrite name and address
including postal zip code of assignee) a Percentage Interest evidenced by
the
within Asset-Backed Certificate and hereby authorizes the transfer of
registration of such interest to assignee on the Certificate Register of
the
Trust Fund.
I
(We)
further direct the Certificate Registrar to issue a new Certificate of a
like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
|
.
|
|
Dated:
|
|
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
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EXHIBIT
A-5
FORM
OF 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 SHALL BE MADE TO ANY PERSON, UNLESS THE TRANSFEREE
PROVIDES A CERTIFICATION PURSUANT TO SECTION 6.02(b) OF THE
AGREEMENT.
ANY
RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY
IF
THE PROPOSED TRANSFEREE PROVIDES A TRANSFER AFFIDAVIT TO THE SECURITIES
ADMINISTRATOR THAT (1) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY
STATE
OR POLITICAL SUBDIVISION THEREOF, ANY POSSESSION OF THE UNITED STATES, OR
ANY
AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN AN INSTRUMENTALITY
WHICH IS A CORPORATION IF ALL OF ITS ACTIVITIES ARE SUBJECT TO TAX AND EXCEPT
FOR XXXXXXX MAC, A MAJORITY OF ITS BOARD OF DIRECTORS IS NOT SELECTED BY
SUCH
GOVERNMENTAL UNIT), (B) A FOREIGN GOVERNMENT, ANY INTERNATIONAL ORGANIZATION,
OR
ANY AGENCY OR INSTRUMENTALITY OF EITHER OF THE FOREGOING, (C) ANY ORGANIZATION
(OTHER THAN CERTAIN FARMERS’ COOPERATIVES DESCRIBED IN SECTION 521 OF THE CODE)
WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE UNLESS SUCH
ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE (INCLUDING
THE TAX IMPOSED BY SECTION 511 OF THE CODE ON UNRELATED BUSINESS TAXABLE
INCOME), (D) RURAL ELECTRIC AND TELEPHONE COOPERATIVES DESCRIBED IN SECTION
1381(a)(2)(C) OF THE CODE, (E) AN ELECTING LARGE PARTNERSHIP UNDER SECTION
775(a) OF THE CODE (ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (A),
(B),
(C), (D) OR (E) BEING HEREIN REFERRED TO AS A “DISQUALIFIED ORGANIZATION”), OR
(F) AN AGENT OF A DISQUALIFIED ORGANIZATION, (2) NO PURPOSE OF SUCH TRANSFER
IS
TO IMPEDE THE ASSESSMENT OR COLLECTION OF TAX AND (3) SUCH TRANSFEREE SATISFIES
CERTAIN ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL CONDITION OF THE
PROPOSED TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE
REGISTER OR ANY TRANSFER, SALE OR OTHER DISPOSITION OF THIS CERTIFICATE TO
A
DISQUALIFIED ORGANIZATION OR AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH
REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER
AND
SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE
HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON
THIS
CERTIFICATE. EACH HOLDER OF THIS CERTIFICATE BY ACCEPTANCE OF THIS CERTIFICATE
SHALL BE DEEMED TO HAVE CONSENTED TO THE PROVISIONS OF THIS
PARAGRAPH.
|
Certificate
No.__
|
|
|
Class
R
|
Percentage
Interest: ____
|
|
Date
of Pooling and Servicing Agreement
and
Cut-off Date: August 1, 2006
|
|
|
First
Distribution Date:
September
25, 2006
|
|
|
Trustee:
HSBC Bank USA, National Association
|
Master
Servicer and Securities Administrator: Xxxxx Fargo Bank,
N.A.
|
|
Assumed
Final Distribution Date: June 25, 2036
|
|
|
CUSIP:
[__________________]
|
MORTGAGE
PASS-THROUGH CERTIFICATE
SERIES
2006-WF1
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-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, the
Securities Administrator or any of their affiliates will have any obligation
with respect to any certificate or other obligation secured by or payable
from
payments on the Certificates.
This
certifies that Nomura Securities International, Inc. 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
“Sponsor”) 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 Sponsor, HSBC Bank
USA, National Association, as trustee (the “Trustee”) and Xxxxx Fargo Bank,
N.A., as master servicer (the “Master Servicer”) and securities administrator
(the “Securities Administrator”), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
capitalized terms used herein shall have the meaning ascribed to them in
the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder
of
this Certificate by virtue of its acceptance hereof assents and by which
such
Holder is bound.
Each
Holder of this Certificate will be deemed to have agreed to be bound by the
restrictions set forth in the Agreement to the effect that (i) each person
holding or acquiring any Ownership Interest in this Certificate must be a
United
States Person and a Permitted Transferee, (ii) the transfer of any Ownership
Interest in this Certificate will be conditioned upon the delivery to the
Securities Administrator of, among other things, an affidavit to the effect
that
it is a United States Person and Permitted Transferee, (iii) any attempted
or
purported transfer of any Ownership Interest in this Certificate in violation
of
such restrictions will be absolutely null and void and will vest no rights
in
the purported transferee, and (iv) if any person other than a United States
Person and a Permitted Transferee acquires any Ownership Interest in this
Certificate in violation of such restrictions, then the Depositor will have
the
right, in its sole discretion and without notice to the Holder of this
Certificate, to sell this Certificate to a purchaser selected by the Depositor,
which purchaser may be the Depositor, or any affiliate of the Depositor,
on such
terms and conditions as the Depositor may choose.
The
Securities Administrator will distribute on the 25th day of each month, or,
if
such 25th day is not a Business Day, the immediately following Business Day
(each, a “Distribution Date”), commencing on the First Distribution Date
specified above, to the Person in whose name this Certificate is registered
at
the close of business on the last day (or if such last day is not a Business
Day, the Business Day immediately preceding such last day) of the calendar
month
immediately preceding the month in which the Distribution Date occurs, an
amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amounts required to be distributed to the Holders of Certificates
of the
same Class as this Certificate. The Assumed Final Distribution Date is the
Distribution Date in the month of the latest scheduled maturity date of any
Mortgage Loan.
Distributions
on this Certificate will be made by the Securities Administrator by check
mailed
to the address of the Person entitled thereto as such name and address shall
appear on the Certificate Register or, if such Person so requests by notifying
the Securities Administrator in writing as specified in the Agreement.
Notwithstanding the above, the final distribution on this Certificate will
be
made after due notice by the Securities Administrator of the pendency of
such
distribution and only upon presentation and surrender of this Certificate
at the
office or agency appointed by the Securities Administrator for that purpose
and
designated in such notice.
No
transfer of this Certificate shall be made to any person unless the transferee
provides a certification pursuant to Section 6.02(b) of the
Agreement.
This
Certificate is one of a duly authorized issue of Certificates designated
as set
forth on the face hereof (the “Certificates”). The Certificates, in the
aggregate, evidence the entire beneficial ownership interest in the Trust
Fund
formed pursuant to the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it
will
look solely to the Trust Fund for payment hereunder and that the Securities
Administrator is not liable to the Certificateholders for any amount payable
under this Certificate or the Agreement or, except as expressly provided
in the
Agreement, subject to any liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced hereby, and the rights, duties and immunities
of the Securities Administrator.
This
Certificate does not purport to summarize the Agreement and reference is
made to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced hereby, and the rights, duties and immunities
of the Securities Administrator. The Certificates are limited in right of
payment to certain collections and recoveries respecting the Mortgage Loans
and
other assets included in the Trust Fund relating to the Mortgage Loans, all
as
more specifically set forth in the Agreement.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor
and
the rights of the Certificateholders under the Agreement from time to time
by
the parties thereto with the consent of the Holders of the Class or Classes
of
Certificates affected thereby evidencing over 50% of the Voting Rights of
such
Class or Classes. Any such consent by the Holder of this Certificate shall
be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable with the Securities
Administrator upon surrender of this Certificate for registration of transfer
at
the offices or agencies maintained by the Securities Administrator for such
purposes, duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Securities Administrator duly executed by the
Holder
hereof or such Holder’s attorney duly authorized in writing, and thereupon one
or more new Certificates in authorized denominations representing a like
aggregate Percentage Interest will be issued to the designated
transferee.
The
Certificates are issuable only as registered Certificates without coupons
in the
Classes and denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, this Certificate
is exchangeable for one or more new Certificates evidencing the same Class
and
in the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made to the Certificateholders for any such registration
of transfer, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. The Depositor, the Master Servicer, the Trustee, the Securities
Administrator and any agent of any of them may treat the Person in whose
name
this Certificate is registered as the owner hereof for all purposes, and
none of
the Depositor, the Master Servicer, the Trustee, the Securities Administrator
or
any such agent shall be affected by notice to the contrary.
The
obligations created by the Agreement 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 by the Master Servicer
only on or after the Distribution Date on which the Stated Principal Balance
of
the Mortgage Loans is less than or equal to 10% of the Cut-off Date Principal
Balance of the Mortgage Loans. 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 earlier of (i) the expiration
of 21
years after the death of certain persons identified in the Agreement and
(ii)
the Assumed Final Distribution Date.
Unless
this Certificate has been countersigned by an authorized signatory of the
Securities Administrator by manual signature, this Certificate shall not
be
entitled to any benefit under the Agreement, or be valid for any
purpose.
IN
WITNESS WHEREOF, the Securities Administrator has caused this Certificate
to be
duly executed.
|
Dated: August
__, 2006
|
XXXXX
FARGO BANK, N.A., as Securities Administrator
|
||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory
|
|||||||||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Class R Certificates referred to in the within-mentioned
Agreement.
|
XXXXX
FARGO BANK, N.A., as Securities Administrator
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory
|
|||||||||||||
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
__________________________________ (Please print or typewrite name and address
including postal zip code of assignee) a Percentage Interest evidenced by
the
within Asset-Backed Certificate and hereby authorizes the transfer of
registration of such interest to assignee on the Certificate Register of
the
Trust Fund.
I
(We)
further direct the Certificate Registrar to issue a new Certificate of a
like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
|
.
|
|
Dated:
|
|
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
B
MORTGAGE
LOAN SCHEDULE
The
Preliminary and Final Mortgage Loan Schedules shall set forth the following
information with respect to each Mortgage Loan:
| a) |
the
Mortgage Loan identifying number;
|
| b) |
the
Mortgage Rate in effect as of the Cut-off
Date;
|
| c) |
the
Servicing Fee Rate;
|
| d) |
the
Net Mortgage Rate in effect as of the Cut-off
Date;
|
| e) |
the
original months to maturity;
|
| f) |
the
original principal balance;
|
| g) |
the
Cut-off Date Principal Balance;
|
| h) |
the
original term;
|
| i) |
the
remaining term;
|
| j) |
the
property type;
|
| k) |
the
product type (e.g., 2/28, 15 year fixed, 30 year fixed, 15/30 balloon,
etc.);
|
| l) |
with
respect to each MOM Loan is subject to a Prepayment Charge, the
term of
such Prepayment Charge and the amount of such Prepayment
Charge;
|
| m) |
the
Servicer;
|
| n) |
whether
the Mortgage Loan is a Covered Mortgage Loan;
and
|
| o) |
the
PMI Insurer Fee Rate, if
applicable.
|
EXHIBIT C
MORTGAGE
LOAN PURCHASE AGREEMENT
This
is a
Mortgage Loan Purchase Agreement (this “Agreement”), dated August 30, 2006,
between Nomura Credit & Capital, Inc., a Delaware corporation (the “Seller”)
and Nomura Asset Acceptance Corporation, a Delaware corporation (the
“Purchaser”).
Preliminary
Statement
The
Seller intends to sell the Mortgage Loans (as hereinafter identified) and
the
Cap Contract to the Purchaser on the terms and subject to the conditions
set
forth in this Agreement. The Purchaser intends to deposit the Mortgage
Loans
into a mortgage pool comprising the Trust Fund. The Trust Fund will be
evidenced
by a single series of asset-backed certificates designated as Nomura Asset
Acceptance Corporation, Alternative Loan Trust, Series 2006-WF1, Mortgage
Pass-Through Certificates (the “Certificates”). The Certificates will consist of
thirteen (13) classes of certificates. The Certificates will be issued
pursuant
to a Pooling and Servicing Agreement for Series 2006-WF1, dated as of August
1,
2006 (the “Pooling and Servicing Agreement”), among the Seller as sponsor, the
Purchaser as depositor, Xxxxx Fargo Bank, N.A. (“Xxxxx Fargo”) as master
servicer and securities administrator and HSBC Bank USA, National Association
as
trustee (the “Trustee”). The Purchaser will sell the Class A-1, Class A-2, Class
A-3, Class A-4, Class X-0, Xxxxx X-0, Class M-1, Class M-2, Class M-3 and
Class
M-4 Certificates to Nomura Securities International, Inc. (“NSII”) and Citigroup
Global Markets, Inc. (together with NSII, the “Underwriters”), pursuant to the
Amended and Restated Underwriting Agreement between the Purchaser and NSII,
dated July 1, 2006, and the Terms Agreement among the Purchaser and the
Underwriters, dated August 29, 2006 (collectively, the “Underwriting
Agreement”). Capitalized terms used but not defined herein shall have the
meanings set forth in the Pooling and Servicing Agreement. Pursuant to
the
custodial agreement, dated as of August 1, 2006 (the “Custodial Agreement”),
among the Trustee, Xxxxx Fargo as servicer (the “Servicer”) and Xxxxx Fargo as
custodian (the “Custodian”), the Trustee intends to have the Custodian take
possession of the Mortgages and Mortgage Notes, along with certain other
documents specified in the Custodial Agreement, as the custodian of the
Trustee,
in accordance with the terms and conditions thereof.
The
parties hereto agree as follows:
SECTION
1. Agreement
to Purchase.
The
Seller hereby sells, and the Purchaser hereby purchases, on August 30,
2006 (the
“Closing Date”), certain conventional, one-to four family, fixed-rate mortgage
loans secured by first liens on residential real properties (the “Mortgage
Loans”), having an aggregate principal balance as of the close of business on
August 1, 2006 (the “Cut-off Date”) of approximately $340,979,043 (the “Closing
Balance”), after giving effect to all payments due on the Mortgage Loans on or
before the Cut-off Date, whether or not received, including the right to
any
Prepayment Charges payable by the related Mortgagors in connection with
any
Principal Prepayments on the Mortgage Loans.
SECTION
2. Mortgage
Loan Schedule.
The
Purchaser and the Seller have agreed upon which of the mortgage loans owned
by
the Seller are to be purchased by the Purchaser pursuant to this Agreement
and
the Seller will prepare or cause to be prepared on or prior to the Closing
Date
a final schedule (the “Closing Schedule”) that describes such Mortgage Loans and
set forth all of the Mortgage Loans to be purchased under this Agreement,
including the Prepayment Charges. The Closing Schedule will conform to
the
requirements set forth in this Agreement and to the definition of “Mortgage Loan
Schedule” under the Pooling and Servicing Agreement.
SECTION
3. Consideration.
(a) In
consideration for the Mortgage Loans to be purchased hereunder, the Purchaser
shall, as described in Section 10, (i) pay to or upon the order of the
Seller in
immediately available funds an amount (the “Purchase Price”) equal to (i)
$____________*
and (ii)
a 100% interest in the Class X, Class P and Class R certificates (collectively
the “Private Certificates”) which shall be registered in the name of Nomura
Securities International, Inc.
(b) The
Purchaser or any assignee, transferee or designee of the Purchaser shall
be
entitled to all scheduled payments of principal due after the Cut-off Date,
all
other payments of principal due and collected after the Cut-off Date, and
all
payments of interest on the Mortgage Loans allocable to the period after
the
Cut-off Date. All scheduled payments of principal and interest due on or
before
the Cut-off Date and collected after the Cut-off Date shall belong to the
Seller.
(c) Pursuant
to the Pooling and Servicing Agreement, the Purchaser will assign all of
its
right, title and interest in and to the Mortgage Loans, together with its
rights
under this Agreement, to the Trustee for the benefit of the
Certificateholders.
SECTION
4. Transfer
of the Mortgage Loans.
(a) Possession
of Mortgage Files.
The
Seller does hereby sell to the Purchaser, without recourse but subject
to the
terms of this Agreement, all of its right, title and interest in, to and
under
the Mortgage Loans, including the related Prepayment Charges. The contents
of
each Mortgage File not delivered to the Purchaser or to any assignee, transferee
or designee of the Purchaser on or prior to the Closing Date are and shall
be
held in trust by the Seller for the benefit of the Purchaser or any assignee,
transferee or designee of the Purchaser. Upon the sale of the Mortgage
Loans,
the ownership of each Mortgage Note, the related Mortgage and the other
contents
of the related Mortgage File is vested in the Purchaser and the ownership
of all
records and documents with respect to the related Mortgage Loan prepared
by or
that come into the possession of the Seller on or after the Closing Date
shall
immediately vest in the Purchaser and shall be delivered immediately to
the
Purchaser or as otherwise directed by the Purchaser.
(b) Delivery
of Mortgage Loan Documents.
Pursuant
to various conveyance documents to be executed on the Closing Date and
pursuant
to the Pooling and Servicing Agreement, the Purchaser will assign on the
Closing
Date all of its right, title and interest in and to the Mortgage Loans
to the
Trustee for the benefit of the Certificateholders. In connection with the
transfer and assignment of the Mortgage Loans, the Seller has delivered
or will
deliver or cause to be delivered to the Trustee by the Closing Date or
such
later date as is agreed to by the Purchaser and the Seller (each of the
Closing
Date and such later date is referred to as a “Mortgage
File Delivery Date”),
the
items of each Mortgage File as defined in section 2.01 of the Pooling and
Servicing Agreement, provided,
however,
that in
lieu of the foregoing, the Seller may deliver the following documents,
under the
circumstances set forth below: (x) in lieu of the original Mortgage, assignments
to the Trustee or intervening assignments thereof which have been delivered,
are
being delivered or will upon receipt of recording information relating
to the
Mortgage required to be included thereon, be delivered to recording offices
for
recording and have not been returned in time to permit their delivery as
specified above, the Seller may deliver a true copy thereof with a certification
by the Seller on the face of such copy, substantially as follows: “Certified to
be a true and correct copy of the original, which has been transmitted
for
recording;” (y) in lieu of the Mortgage, assignments to the Trustee or
intervening assignments thereof, if the applicable jurisdiction retains
the
originals of such documents or if the originals are lost (in each case,
as
evidenced by a certification from the Seller to such effect), the Seller
may
deliver photocopies of such documents containing an original certification
by
the judicial or other governmental authority of the jurisdiction where
such
documents were recorded; and (z) in lieu of the Mortgage Notes relating
to the
Mortgage Loans, each identified in the list delivered by the Purchaser
to the
Trustee on the Closing Date and attached hereto as Exhibit
2
the
Seller may deliver lost note affidavits and indemnities of the Seller;
and
provided further, however, that in the case of Mortgage Loans which have
been
prepaid in full after the Cut-off Date and prior to the Closing Date, the
Seller, in lieu of delivering the above documents, may deliver to the Trustee
a
certification by the Seller to such effect. The Seller shall deliver such
original documents (including any original documents as to which certified
copies had previously been delivered) or such certified copies to the Trustee
promptly after they are received. The Seller shall cause the Mortgage and
intervening assignments, if any, and the assignment of the Mortgage to
be
recorded not later than 180 days after the Closing Date, or, in lieu of
such
assignments, shall provide an Opinion of Counsel pursuant to Section 6
hereof to
the effect that the recordation of such assignment is not necessary to
protect
the Trustee’s interest in the related Mortgage Loan. Upon the request of the
Purchaser, the Seller will assist the Purchaser in effecting the assignment
referred to above.
*
Please
contact Nomura Credit & Capital, Inc. for pricing information.
(c) In
connection with the assignment of any Mortgage Loan registered on the MERS®
System, the Seller further agrees that it will cause, at the Seller’s own
expense, within thirty (30) days after the Closing Date, the MERS® System to
indicate that such Mortgage Loans have been assigned by the Seller to the
Purchaser and by the Purchaser to the Trustee in accordance with this Agreement
for the benefit of the Certificateholders by including (or deleting, in
the case
of Mortgage Loans which are repurchased in accordance with this Agreement)
in
such computer files (a) the code in the field which identifies the specific
Trustee and (b) the code in the field “Pool Field” which identifies the series
of the Certificates issued in connection with such Mortgage Loans. The
Seller
further agrees that it will not, and will not permit the Servicer to alter
the
codes referenced in this paragraph with respect to any Mortgage Loan during
the
term of the Pooling and Servicing Agreement unless and until such Mortgage
Loan
is repurchased in accordance with the terms of the Pooling and Servicing
Agreement.
(d) Acceptance
of Mortgage Loans.
The
documents delivered pursuant to Section 4(b) hereof shall be reviewed by
the
Purchaser or any assignee, transferee or designee of the Purchaser at any
time
before or after the Closing Date (and with respect to each document permitted
to
be delivered after the Closing Date, within seven (7) days of its delivery)
to
ascertain that all required documents have been executed and received and
that
such documents relate to the Mortgage Loans identified on the Mortgage
Loan
Schedule.
(e) Transfer
of Interest in Agreements.
The
Purchaser has the right to assign its interest under this Agreement, in
whole or
in part, to the Trustee, as may be required to effect the purposes of the
Pooling and Servicing Agreement, without the consent of the Seller, and
the
assignee shall succeed to the rights and obligations hereunder of the Purchaser.
Any expense reasonably incurred by or on behalf of the Purchaser or the
Trustee
in connection with enforcing any obligations of the Seller under this Agreement
will be promptly reimbursed by the Seller.
SECTION
5. Examination
of Mortgage Files.
(a) On
or
before the Mortgage File Delivery Date, the Seller will have made the Mortgage
Files available to the Purchaser or its agent for examination which may
be at
the offices of the Trustee or the Seller and/or the Seller’s custodians. The
fact that the Purchaser or its agent has conducted or has failed to conduct
any
partial or complete examination of the Mortgage Files shall not affect
the
Purchaser’s rights to demand cure, repurchase, substitution or other relief as
provided in this Agreement. In furtherance of the foregoing, the Seller
shall
make the Mortgage Files available to the Purchaser or its agent from time
to
time so as to permit the Purchaser to confirm the Seller’s compliance with the
delivery and recordation requirements of this Agreement and the Pooling
and
Servicing Agreement. In addition, upon request of the Purchaser, the Seller
agrees to provide to the Purchaser, the Underwriters and to any investors
or
prospective investors in the Certificates information regarding the Mortgage
Loans and their servicing, to make the Mortgage Files available to the
Purchaser, the Underwriters and to such investors or prospective investors
(which may be at the offices of the Seller and/or the Seller’s custodians) and
to make available personnel knowledgeable about the Mortgage Loans for
discussions with the Purchaser, the Underwriters and such investors or
prospective investors, upon reasonable request during regular business
hours,
sufficient to permit the Purchaser, the Underwriters and such investors
or
potential investors to conduct such due diligence as any such party reasonably
believes is appropriate.
(b) Pursuant
to the Pooling and Servicing Agreement, on the Closing Date the Custodian
on
behalf of the Trustee, for the benefit of the Certificateholders, will
review
items of the Mortgage Files as set forth on Exhibit
1
and will
deliver to the Seller a certification in the form attached as Exhibit 1
to the
Custodial Agreement.
(c) Pursuant
to the Pooling and Servicing Agreement, the Trustee or the Custodian, on
behalf
of the Trustee, will review the Mortgage Files within 180 days of the Closing
Date and will deliver to the Seller a final certification substantially
in the
form of Exhibit C-2 to the Custodial Agreement. If the Custodian is unable
to
deliver a final certification with respect to the items listed in Exhibit
2
due to
any document that is missing, has not been executed or is unrelated, determined
on the basis of the Mortgagor name, original principal balance and loan
number,
to the Mortgage Loans identified in the Final Mortgage Loan Schedule (a
“Material
Defect”),
pursuant to Section 6 of the Custodial Agreement, the Custodian will notify
the
Trustee of such Material Defect and the Trustee shall notify the Seller
of such
Material Defect. The Seller shall correct or cure any such Material Defect
within ninety (90) days from the date of notice from the Trustee of the
Material
Defect and if the Seller does not correct or cure such Material Defect
within
such period and such defect materially and adversely affects the interests
of
the Certificateholders in the related Mortgage Loan, the Seller will, in
accordance with the terms of the Pooling and Servicing Agreement, within
ninety
(90) days of the date of notice, provide the Trustee with a Substitute
Mortgage
Loan (if within two (2) years of the Closing Date) or purchase the related
Mortgage Loan at the applicable Purchase Price; provided, however, that
if such
defect relates solely to the inability of the Seller to deliver the original
security instrument or intervening assignments thereof, or a certified
copy
because the originals of such documents, or a certified copy, have not
been
returned by the applicable jurisdiction, the Seller shall not be required
to
purchase such Mortgage Loan if the Seller delivers such original documents
or
certified copy promptly upon receipt, but in no event later than 360 days
after
the Closing Date. The foregoing repurchase obligation shall not apply in
the
event that the Seller cannot deliver such original or copy of any document
submitted for recording to the appropriate recording office in the applicable
jurisdiction because such document has not been returned by such office;
provided that the Seller shall instead deliver a recording receipt of such
recording office or, if such receipt is not available, a certificate of
the
Seller or a Servicing Officer confirming that such documents have been
accepted
for recording, and delivery to the Trustee shall be effected by the Seller
within thirty (30) days of its receipt of the original recorded
document.
(d) At
the
time of any substitution, the Seller shall deliver or cause to be delivered
the
Replacement Mortgage Loan, the related Mortgage File and any other documents
and
payments required to be delivered in connection with a substitution pursuant
to
the Pooling and Servicing Agreement. At the time of any purchase or
substitution, the Trustee shall (i) assign to the Seller and cause the
Custodian, on behalf of the Trustee, to release the documents (including,
but
not limited to, the Mortgage, Mortgage Note and other contents of the Mortgage
File) in the possession of the Custodian, on behalf of the Trustee, relating
to
the Deleted Mortgage Loan and (ii) execute and deliver such instruments
of
transfer or assignment, in each case without recourse, as shall be necessary
to
vest in the Seller title to such Deleted Mortgage Loan.
SECTION
6. Recordation
of Assignments of Mortgage.
(a) The
Seller will, promptly after the Closing Date, cause each Mortgage and each
assignment of Mortgage from the Seller to the Trustee, and all unrecorded
intervening assignments, if any, delivered on or prior to the Closing Date,
to
be recorded in all recording offices in the jurisdictions where the related
Mortgaged Properties are located; provided,
however,
the
Seller need not cause to be recorded any assignment for which (a) the related
Mortgaged Property is located in (a) any jurisdiction under the laws of
which,
as evidenced by an Opinion of Counsel delivered by the Seller to the Trustee
and
the Rating Agencies, the recordation of such assignment is not necessary
to
protect the Trustee’s interest in the related Mortgage Loan or (b) MERS is
identified on the Mortgage or on a properly recorded assignment of the
Mortgage
as mortgagee of record solely as nominee for Seller and its successors
and
assigns; provided,
however,
notwithstanding the delivery of any Opinion of Counsel, each assignment
of
Mortgage shall be submitted for recording by the Seller in the manner described
above, at no expense to the Trust Fund or Trustee, upon the earliest to
occur of
(i) reasonable direction by the Holders of Certificates evidencing Percentage
Interests aggregating not less than twenty-five percent (25%) of the Trust,
(ii)
the occurrence of an Event of Default, (iii) the occurrence of a bankruptcy,
insolvency or foreclosure relating to the Seller, (iv) the occurrence of
a
servicing transfer as described in Section 8.02 of the Pooling and Servicing
Agreement or (v) with respect to any assignment of Mortgage, the occurrence
of a
bankruptcy, insolvency or foreclosure relating to the Mortgagor under the
related Mortgage.
(b) While
each such Mortgage or assignment is being recorded, if necessary, the Seller
shall leave or cause to be left with the Custodian, on behalf of the Trustee,
a
certified copy of such Mortgage or assignment. In the event that, within
180
days of the Closing Date, the Trustee has not been provided with an Opinion
of
Counsel as described above or received evidence of recording with respect
to
each Mortgage Loan delivered to the Purchaser pursuant to the terms hereof
or as
set forth above and the related Mortgage Loan is not a MOM Loan, the failure
to
provide evidence of recording or such Opinion of Counsel shall be considered
a
Material Defect, and the provisions of Section 5(c) and (d) shall apply.
All
customary recording fees and reasonable expenses relating to the recordation
of
the assignments of mortgage to the Trustee or the Opinion of Counsel, as
the
case may be, shall be borne by the Seller.
SECTION
7. Representations,
Warranties and Covenants of the Seller.
The
Seller hereby represents and warrants to the Purchaser, as of the date
hereof
and as of the Closing Date, and covenants, that:
(i) The
Seller is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and is qualified and in good standing
to
do business in each jurisdiction where such qualification is necessary,
except
where the failure so to qualify would not reasonably be expected to have
a
material adverse effect on the Seller’s business as presently conducted or on
the Seller’s ability to enter into this Agreement and to consummate the
transactions contemplated hereby.
(ii) The
Seller has duly authorized the execution, delivery and performance of this
Agreement, has duly executed and delivered this Agreement, and this Agreement,
assuming due authorization, execution and delivery by the Purchaser, constitutes
a legal, valid and binding obligation of the Seller, enforceable against
it in
accordance with its terms except as the enforceability thereof may be limited
by
bankruptcy, insolvency or reorganization or by general principles of
equity.
(iii) The
execution, delivery and performance of this Agreement by the Seller (x)
does not
conflict and will not conflict with, does not breach and will not result
in a
breach of and does not constitute and will not constitute a default (or
an
event, which with notice or lapse of time or both, would constitute a default)
under (A) any terms or provisions of the organizational documents of the
Seller,
(B) any term or provision of any material agreement, contract, instrument
or
indenture, to which the Seller is a party or by which the Seller or any
of its
property is bound, or (C) any law, rule, regulation, order, judgment, writ,
injunction or decree of any court or governmental authority having jurisdiction
over the Seller or any of its property and (y) does not create or impose
and
will not result in the creation or imposition of any lien, charge or encumbrance
which would have a material adverse effect upon the Mortgage Loans or any
documents or instruments evidencing or securing the Mortgage Loans.
(iv) No
consent, approval, authorization or order of, registration or filing with,
or
notice on behalf of the Seller to any governmental authority or court is
required, under federal laws or the laws of the State of New York, for
the
execution, delivery and performance by the Seller of, or compliance by
the
Seller with, this Agreement or the consummation by the Seller of any other
transaction contemplated hereby and by the Pooling and Servicing Agreement;
provided, however, that the Seller makes no representation or warranty
regarding
federal or state securities laws in connection with the sale or distribution
of
the Certificates.
(v) This
Agreement does not contain any untrue statement of material fact or omit
to
state a material fact necessary to make the statements contained herein
not
misleading. The written statements, reports and other documents prepared
and
furnished or to be prepared and furnished by the Seller pursuant to this
Agreement or in connection with the transactions contemplated hereby taken
in
the aggregate do not contain any untrue statement of material fact or omit
to
state a material fact necessary to make the statements contained therein
not
misleading.
(vi) The
Seller is not in violation of, and the execution and delivery of this Agreement
by the Seller and its performance and compliance with the terms of this
Agreement will not constitute a violation with respect to, any order or
decree
of any court or any order or regulation of any federal, state, municipal
or
governmental agency having jurisdiction over the Seller or its assets,
which
violation might have consequences that would materially and adversely affect
the
condition (financial or otherwise) or the operation of the Seller or its
assets
or might have consequences that would materially and adversely affect the
performance of its obligations and duties hereunder.
(vii) The
Seller does not believe, nor does it have any reason or cause to believe,
that
it cannot perform each and every covenant contained in this
Agreement.
(viii) Immediately
prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated,
the Seller was the owner of the related Mortgage and the indebtedness evidenced
by the related Mortgage Note, and, upon the payment to the Seller of the
Purchase Price, in the event that the Seller retains or has retained record
title, the Seller shall retain such record title to each Mortgage, each
related
Mortgage Note and the related Mortgage Files with respect thereto in trust
for
the Purchaser as the owner thereof from and after the date hereof.
(ix) There
are
no actions or proceedings against, or investigations known to it of, the
Seller
before any court, administrative or other tribunal (A) that might prohibit
its
entering into this Agreement, (B) seeking to prevent the sale of the Mortgage
Loans by the Seller or the consummation of the transactions contemplated
by this
Agreement or (C) that might prohibit or materially and adversely affect
the
performance by the Seller of its obligations under, or validity or
enforceability of, this Agreement.
(x) The
consummation of the transactions contemplated by this Agreement are in
the
ordinary course of business of the Seller, and the transfer, assignment
and
conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant
to
this Agreement are not subject to the bulk transfer or any similar statutory
provisions in effect in any relevant jurisdiction, except any as may have
been
complied with.
(xi) The
Seller has not dealt with any broker, investment banker, agent or other
person,
except for the Purchaser or any of its affiliates, that may be entitled
to any
commission or compensation in connection with the sale of the Mortgage
Loans
(except that an entity that previously financed the Seller’s ownership of the
Mortgage Loans may be entitled to a fee to release its security interest
in the
Mortgage Loans, which fee shall have been paid and which security interest
shall
have been released on or prior to the Closing Date).
(xii) There
is
no litigation currently pending or, to the best of the Seller’s knowledge
without independent investigation, threatened against the Seller that would
reasonably be expected to adversely affect the transfer of the Mortgage
Loans,
the issuance of the Certificates or the execution, delivery, performance
or
enforceability of this Agreement, or that would result in a material adverse
change in the financial condition of the Seller.
(xiii) The
information set forth in the applicable part of the Mortgage Loan Schedule
relating to the existence of a Prepayment Charge is complete, true and
correct
in all material respects at the date or dates respecting which such information
is furnished and each Prepayment Charge was originated in compliance with
all
applicable federal, state and local laws and is permissible and enforceable
in
accordance with its terms (except to the extent that: (1) the enforceability
thereof may be limited by bankruptcy, insolvency, moratorium, receivership
and
other similar laws relating to creditors’ rights generally; (2) the
collectability thereof may be limited due to acceleration in connection
with a
foreclosure; or (3) subsequent changes in applicable law may limit or prohibit
enforceability thereof) under the applicable state law.
(xiv) The Seller
is a HUD approved mortgagee pursuant to Section 203 of the National Housing
Act.
SECTION
8. Representations
and Warranties of the Seller Relating to the Mortgage Loans.
The
Seller hereby represents and warrants to the Purchaser that as to each
Mortgage
Loan as of the Closing Date:
(i) Information
provided to the Rating Agencies, including the loan level detail, is true
and
correct according to the Rating Agency requirements;
(ii) No
fraud
has taken place on the part of the Mortgagor or any other party involved
in the
origination or servicing of the Mortgage Loan;
(iii) No
Monthly Payment required to be made under any Mortgage Loan has been, or
will
be, contractually delinquent by one month or more on, or at any time preceding,
the date such Mortgage Loan was purchased by the Seller;
(iv) Neither
the Seller nor the related originator of the Mortgage Loan has advanced
any
Monthly Payment required under the terms of the Mortgage Note;
(v) There
are
no delinquent taxes, assessment liens or insurance premiums affecting the
related Mortgaged Property;
(vi) The
terms
of the Mortgage Note and the Mortgage have not been materially impaired,
waived,
altered or modified in any respect, except by written instruments, recorded
in
the applicable public recording office if necessary to maintain the lien
priority of the Mortgage. The substance of any such waiver, alteration
or
modification has been approved by the title insurer, to the extent required
by
the related policy. No Mortgagor has been released, in whole or in part,
except
in connection with an assumption agreement (approved by the title insurer
to the
extent required by the policy) and which assumption agreement has been
delivered
to the Trustee;
(vii) The
Mortgaged Property is insured against loss by fire and hazards of extended
coverage (excluding earthquake insurance) in an amount which is at least
equal
to the lesser of (i) the amount necessary to compensate for any damage
or loss
to the improvements which are a part of such property on a replacement
cost
basis or (ii) the outstanding principal balance of the Mortgage Loan. If
the
Mortgaged Property is in an area identified on a flood hazard map or flood
insurance rate map issued by the Federal Emergency Management Agency as
having
special flood hazards (and such flood insurance has been made available),
a
flood insurance policy meeting the requirements of the current guidelines
of the
Federal Insurance Administration is in effect. All such insurance policies
contain a standard mortgagee clause naming the originator of the Mortgage
Loan,
its successors and assigns as mortgagee and the Seller has not engaged
in any
act or omission which would impair the coverage of any such insurance policies.
Except as may be limited by applicable law, the Mortgage obligates the
Mortgagor
thereunder to maintain all such insurance at the Mortgagor's cost and expense,
and on the Mortgagor's failure to do so, authorizes the holder of the Mortgage
to maintain such insurance at Mortgagor's cost and expense and to seek
reimbursement therefor from the Mortgagor;
(viii) Each
Mortgage Loan and the related Prepayment Charge, if any, complied in all
material respects with any and all requirements of any federal, state or
local
law including, without limitation, usury, truth in lending, anti-predatory
lending, real estate settlement procedures, consumer credit protection,
equal
credit opportunity, fair housing or disclosure laws applicable to the
origination and servicing of the Mortgage Loans and the consummation of
the
transactions contemplated hereby will not involve the violation of any
such
laws;
(ix) The
Mortgage has not been satisfied, cancelled, subordinated or rescinded,
in whole
or in part, and the Mortgaged Property has not been released from the lien
of
the Mortgage, in whole or in part, nor has any instrument been executed
that
would effect any such satisfaction, cancellation, subordination, rescission
or
release;
(x)
The
Mortgage was recorded or was submitted for recording in accordance with
all
applicable laws and is a valid, existing and enforceable perfected first
lien on
the Mortgaged Property including all improvements on the Mortgaged Property,
subject only to (a) the lien of the current real property taxes and (b)
covenants, conditions and restrictions, rights of way and
easements;
(xi) The
Mortgage Note and the related Mortgage are genuine and each is the legal,
valid
and binding obligation of the maker thereof, insured under the related
title
policy, and enforceable in accordance with its terms, except to the extent
that
the enforceability thereof may be limited by a bankruptcy, insolvency or
reorganization;
(xii) The
Seller is the sole legal, beneficial and equitable owner of the Mortgage
Note
and the Mortgage and has the full right to convey, transfer and sell the
Mortgage Loan to the Purchaser free and clear of any encumbrance, equity,
lien,
pledge, charge, claim or security interest and immediately upon the sale,
assignment and endorsement of the Mortgage Loans from the Seller to the
Purchaser, the Purchaser shall have good and indefeasible title to and
be the
sole legal owner of the Mortgage Loans subject only to any encumbrance,
equity,
lien, pledge, charge, claim or security interest arising out of the Purchaser’s
actions;
(xiii) Each
Mortgage Loan is covered by a valid and binding American Land Title Association
lender's title insurance policy issued by a title insurer qualified to
do
business in the jurisdiction where the Mortgaged Property is located, which
title insurance policy is generally acceptable to Xxxxxx Xxx and Xxxxxxx
Mac. No
claims have been filed under such lender's title insurance policy, and
the
Seller has not done, by act or omission, anything that would impair the
coverage
of the lender's title insurance policy;
(xiv) There
is
no material default, breach, violation event or event of acceleration existing
under the Mortgage or the Mortgage Note and no event which, with the passage
of
time or with notice and the expiration of any grace or cure period, would
constitute a material default, breach, violation or event of acceleration,
and
the Seller has not, nor has its predecessors, waived any material default,
breach, violation or event of acceleration;
(xv) There
are
no mechanics' or similar liens or claims which have been filed for work,
labor
or material provided to the related Mortgaged Property prior to the origination
of the Mortgage Loan which are or may be liens prior to, or equal or coordinate
with, the lien of the related Mortgage, except as may be disclosed in the
related title policy;
(xvi) Each
Mortgage Note is payable on the first day of each month in equal monthly
installments of principal and interest (subject to adjustment in the case
of the
adjustable rate Mortgage Loans), with interest calculated on a 30/360 basis
and
payable in arrears, sufficient to amortize the Mortgage Loan fully by the
stated
maturity date over an original term from commencement of amortization to
not
more than thirty (30) years. No Mortgage Loan is a balloon loan. No Mortgage
Loan permits negative amortization;
(xvii) The
servicing practices used in connection with the servicing of the Mortgage
Loans
have been in all respects reasonable and customary in the mortgage servicing
industry of like mortgage loan servicers, servicing mortgage loans similar
to
the Mortgage Loans in the same jurisdiction as the Mortgaged
Property;
(xviii) At
the
time of origination of the Mortgage Loan there was no proceeding pending
for the
total or partial condemnation of the Mortgaged Property and, as of the
date such
Mortgage Loan was purchased by the Purchaser, to the best of the Purchaser’s
knowledge there is no proceeding pending for the total or partial condemnation
of the Mortgaged Property;
(xix) The
Mortgage and related Mortgage Note contain customary and enforceable provisions
such as to render the rights and remedies of the holder thereof adequate
for the
realization against the Mortgaged Property of the benefits of the security
provided thereby, including, (a) in the case of a Mortgage designated as
a deed
of trust, by trustee's sale, and (b) otherwise by judicial
foreclosure;
(xx) The
Mortgage Note is not and has not been secured by any collateral except
the lien
of the related Mortgage referred to in subsection (x) above;
(xxi) In
the
event the Mortgage constitutes a deed of trust, a trustee, duly qualified
under
applicable law to serve as such, has been properly designated and currently
so
serves and is named in the Mortgage, and no fees or expenses are or will
become
payable by the Seller to the trustee under the deed of trust, except in
connection with a trustee's sale after default by the Mortgagor;
(xxii) The
Mortgage Loan is not subject to any valid right of rescission, set-off,
counterclaim or defense, including without limitation the defense of usury,
nor
will the operation of any of the terms of the Mortgage Note or the Mortgage,
or
the exercise of any right thereunder, render either the Mortgage Note or
the
Mortgage unenforceable, in whole or in part, or subject to any such right
of
rescission, set-off, counterclaim or defense, including without limitation
the
defense of usury, and no such right of rescission, set-off, counterclaim
or
defense has been asserted with respect thereto;
(xxiii) The
Mortgaged Property is free of material damage and in good repair, excepting
therefrom any Mortgage Loan subject to an escrow withhold as shown on the
Mortgage Loan Schedule;
(xxiv) All
of
the improvements which were included in determining the appraised value
of the
Mortgaged Property lie wholly within the Mortgaged Property's boundary
lines and
no improvements on adjoining properties encroach upon the Mortgaged Property,
excepting therefrom: (i) any encroachment insured against in the lender's
title
insurance policy identified in clause (xiii) above, (ii) any encroachment
generally acceptable to mortgage loan originators doing business in the
same
jurisdiction as the Mortgaged Property, and (iii) any encroachment which
does
not materially interfere with the benefits of the security intended to
be
provided by such Mortgage;
(xxv) All
parties to the Mortgage Note had the legal capacity to execute the Mortgage
Note
and the Mortgage, and the Mortgage Note and the Mortgage have been duly
executed
by such parties;
(xxvi) To
the
best of the Seller’s knowledge, at the time of origination of the Mortgage Loan,
no appraised improvement located on or being part of the Mortgaged Property
was
in violation of any applicable zoning law or regulation and all inspections,
licenses and certificates required in connection with the origination of
any
Mortgage Loan with respect to the occupancy of the Mortgaged Property,
have been
made or obtained from the appropriate authorities;
(xxvii) No
Mortgagor has notified the Seller of any relief requested or allowed under
the
Servicemember’s Civil Relief Act;
(xxviii)
All
parties which have held an interest in the Mortgage Loan are (or during
the
period in which they held and disposed of such interest, were) (1) in compliance
with any and all applicable licensing requirements of the state wherein
the
Mortgaged Property is located, (2) organized under the laws of such state,
(3)
qualified to do business in such state, (4) a federal savings and loan
association or national bank, (5) not doing business in such state, or
(6)
exempt from the applicable licensing requirements of such state;
(xxix) The
Mortgage File contains an appraisal of the related Mortgaged Property which
was
made prior to the approval of the Mortgage Loan by a qualified appraiser,
duly
appointed by the related originator and was made in accordance with the
Financial Institutions Reform, Recovery, and Enforcement Act of 1989 and
the
Uniform Standards of Professional Appraisal Practice;
(xxx) Except
as
may otherwise be limited by applicable law, the Mortgage contains an enforceable
provision for the acceleration of the payment of the unpaid principal balance
of
the Mortgage Loan in the event that the Mortgaged Property is sold or
transferred without the prior written consent of the Mortgagee
thereunder;
(xxxi) The
Mortgage Loan does not contain any provision which would constitute a “buydown”
provision and pursuant to which Monthly Payments are paid or partially
paid with
funds deposited in a separate account established by the related originator,
the
Mortgagor or anyone on behalf of the Mortgagor, or paid by any source other
than
the Mortgagor. The Mortgage Loan is not a “graduated payment mortgage loan” and
the Mortgage loan does not have a shared appreciation or other contingent
interest feature;
(xxxii) To
the
best of the Seller's knowledge there is no action or proceeding directly
involving the Mortgaged Property presently pending in which compliance
with any
environmental law, rule or regulation is at issue and the Seller has received
no
notice of any condition at the Mortgaged Property which is reasonably likely
to
give rise to an action or proceeding in which compliance with any environmental
law, rule or regulation is at issue;
(xxxiii)
Each Mortgage Loan is an obligation which is principally secured by an
interest
in real property within the meaning of Treasury Regulation section
1.860G-2(a);
(xxxiv)
Each Mortgage Loan is directly secured by a first lien on, and consists
of a
single parcel of, real property with a detached one-to-four family residence
erected thereon, a townhouse or an individual condominium unit in a condominium
project, or an individual unit in a planned unit development (“PUD”). No
residence or dwelling is a leasehold, mobile home or a manufactured dwelling
unless it is an Acceptable Manufactured Dwelling. An “Acceptable Manufactured
Dwelling” is a manufactured dwelling, which is permanently affixed to a
foundation and treated as “real estate” under applicable law. No Mortgaged
Property is used for commercial purposes. Mortgaged Properties which contain
a
home office shall not be considered as being used for commercial purposes
as
long as the Mortgaged Property has not been altered for commercial purposes
and
is not storing any chemicals or raw materials other than those commonly
used for
homeowner repair, maintenance and/or household purposes;
(xxxv)
The first scheduled Monthly Payment under the terms of each Mortgage Note
was
received by the Servicer by the 30th day following the related due date;
(xxxvi)
To the best of the Seller’s knowledge, the servicer for each Mortgage Loan has
accurately and fully reported its borrower credit files to each of the
credit
repositories in a timely manner;
(xxxvii) No
Mortgage Loan is subject to the Home Ownership and Equity Protection Act
of 1994
(“HOEPA”) or any comparable law and no Mortgage Loan is classified and/or
defined as a “high cost”, “covered” (excluding home loans defined as “covered
home loans” in the New Jersey Home Ownership Security Act of 2002 that were
originated between November 26, 2003 and July 7, 2004), “high risk home” or
“predatory” loan under any other federal, state or local law or regulation or
ordinance (or a similarly classified loan using different terminology under
a
law imposing heightened regulatory scrutiny or additional legal liability
for
residential mortgage loans having high interest rates, points and/or
fees);
(xxxviii)No
Mortgage Loan was selected from the mortgage loans in the Seller’s portfolio in
a manner so as to affect adversely the interests of the Purchaser;
(xxxix) Each
Mortgage File contains a full appraisal on form 1004 or 2055 with an interior
inspection (or the equivalent form for two-to four-family and investor
properties), or on a similar alternate form which includes substantially
similar
information to that required such forms, as applicable;
(xl) Each
Mortgage Loan is and will be a mortgage loan arising out of the originator’s
practice in accordance with the originator’s underwriting guidelines;
(xli) As
of the
Closing Date, the Seller has no knowledge of any fact that should lead
it to
expect that the Mortgage Loan will not be paid in full when due;
(xlii) No
loan
is a high cost loan or a covered loan, as applicable (as such terms are
defined
in the then current Standard & Poor’s LEVELS Version 5.7 Glossary Revised,
Appendix E;
(xliii) No
Mortgage Loan originated on or after October 1, 2002 through and including
March
6, 2003 is governed by the Georgia Fair Lending Act (the “Georgia
Act”);
(xliv) The
prepayment penalties included in the transaction are enforceable and were
originated in compliance with all applicable federal, state and local
laws;
(xlv) The
information set forth in the Prepayment Penalty Schedule is complete, true
and
correct in all material respects at the date or dates on which such information
is furnished respecting with such information is furnished, and each prepayment
penalty is permissible and enforceable in accordance with its terms upon
the
mortgagor's full and voluntary principal prepayment under applicable law,
except
to the extent that: (1) the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium, receivership and other similar laws relating to
creditors' rights; (2) the collectability thereof may be limited due to
acceleration in connection with a foreclosure or other involuntary prepayment;
or (3) subsequent changes in applicable law may limit or prohibit enforceability
thereof under applicable law; and
(xlvi) Each
mortgage loan and prepayment penalty associated with the mortgage loan
at
origination complied in all material respects with applicable local, state
and
federal laws, including, without limitation, usury, equal credit opportunity,
real estate settlement procedures, truth-in-lending and disclosure laws,
and the
consummation of the transactions contemplated hereby will not involve the
violation of any such laws.
SECTION
9. Repurchase
Obligation for Defective Documentation and for Breach of Representation
and
Warranty.
(a) The
representations and warranties contained in Section 8 shall not be impaired
by
any review and examination of loan files or other documents evidencing
or
relating to the Mortgage Loans or any failure on the part of the Seller
or the
Purchaser to review or examine such documents and shall inure to the benefit
of
any assignee, transferee or designee of the Purchaser, including the Trustee
for
the benefit of the Certificateholders. With respect to the representations
and
warranties contained herein as to which the Seller has no knowledge, if
it is
discovered that the substance of any such representation and warranty was
inaccurate as of the date such representation and warranty was made or
deemed to
be made, and such inaccuracy materially and adversely affects the value
of the
related Mortgage Loan or the interest therein of the Purchaser or the
Purchaser’s assignee, transferee or designee, then notwithstanding the lack of
knowledge by the Seller with respect to the substance of such representation
and
warranty being inaccurate at the time the representation and warranty was
made,
the Seller shall take such action described in the following paragraph
in
respect of such Mortgage Loan.
Upon
discovery by the Seller, the Purchaser or any assignee, transferee or designee
of the Purchaser of any materially defective document in, or that any material
document was not transferred by the Seller (as listed on an exception report
attached to the initial certification prepared by the Custodian, on behalf
of
the Trustee), or of a breach of any of the representations and warranties
contained in Section 8 that materially and adversely affects the value
of any
Mortgage Loan or the interest therein of the Purchaser or the Purchaser’s
assignee, transferee or designee, the party discovering such breach shall
give
prompt written notice to the Seller. Within 365 days of its discovery or
its
receipt of notice of any such missing documentation that was not transferred
by
the Seller as described above, or of materially defective documentation,
or
within 120 days of any such breach of a representation and warranty, the
Seller
promptly shall deliver such missing document or cure such defect or breach
in
all material respects or, in the event the Seller cannot deliver such missing
document or cannot cure such defect or breach, the Seller shall, within
365 days
of its discovery or receipt of notice of any such missing or materially
defective documentation or within 120 days of any such breach of a
representation and warranty, either (i) repurchase the affected Mortgage
Loan at
the Purchase Price (as such term is defined in the Pooling and Servicing
Agreement) or (ii) pursuant to the provisions of the Pooling and Servicing
Agreement, cause the removal of such Mortgage Loan from the Trust Fund
and
substitute one or more Replacement Mortgage Loans. The Seller shall amend
the
Closing Schedule to reflect the withdrawal of such Mortgage Loan from the
terms
of this Agreement and the Pooling and Servicing Agreement. The Seller shall
deliver to the Purchaser such amended Closing Schedule and shall deliver
such
other documents as are required by this Agreement or the Pooling and Servicing
Agreement within five (5) days of any such amendment. Any repurchase pursuant
to
this Section 9(a) shall be accomplished by transfer to an account designated
by
the Purchaser of the amount of the Purchase Price in accordance with Section
2.03 of the Pooling and Servicing Agreement. Any repurchase required by
this
Section shall be made in a manner consistent with Section 2.03 of the Pooling
and Servicing Agreement.
(b) If
the
representation made by the Seller in Section 7(xiii) is breached, the Seller
shall not have the right or obligation to cure, substitute or repurchase
the
affected Mortgage Loan but shall remit to the Servicer for deposit in the
Collection Account, prior to the next succeeding Servicer Remittance Date,
the
amount of the Prepayment Charge indicated on the applicable part of the
Mortgage
Loan Schedule to be due from the Mortgagor in the circumstances less any
amount
collected and remitted to the Servicer for deposit into the Collection
Account.
(c) It
is
understood and agreed that the obligations of the Seller set forth in this
Section 9 to cure or repurchase a defective Mortgage Loan (and to make
payments
pursuant to Section 9(b)) constitute the sole remedies of the Purchaser
against
the Seller respecting a missing document or a breach of the representations
and
warranties contained in Section 8.
SECTION
10. Closing;
Payment for the Mortgage Loans. The
closing of the purchase and sale of the Mortgage Loans shall be held at
the New
York City office of Xxxxxxx Xxxxxxxx & Xxxx llp
at 10:00
a.m. New York City time on the Closing Date.
The
closing shall be subject to each of the following conditions:
(a) All
of
the representations and warranties of the Seller under this Agreement shall
be
true and correct in all material respects as of the date as of which they
are
made and no event shall have occurred which, with notice or the passage
of time,
would constitute a default under this Agreement;
(b) The
Purchaser shall have received, or the attorneys of the Purchaser shall
have
received in escrow (to be released from escrow at the time of closing),
all
Closing Documents as specified in Section 11 of this Agreement, in such
forms as
are agreed upon and acceptable to the Purchaser, duly executed by all
signatories other than the Purchaser as required pursuant to the respective
terms thereof;
(c) The
Seller shall have delivered or caused to be delivered and released to the
Purchaser or to its designee, all documents (including without limitation,
the
Mortgage Loans) required to be so delivered by the Purchaser pursuant to
Section
2.01 of the Pooling and Servicing Agreement; and
(d) All
other
terms and conditions of this Agreement and the Pooling and Servicing Agreement
shall have been complied with.
Subject
to the foregoing conditions, the Purchaser shall deliver or cause to be
delivered to the Seller on the Closing Date, against delivery and release
by the
Seller to the Trustee of all documents required pursuant to the Pooling
and
Servicing Agreement, the consideration for the Mortgage Loans as specified
in
Section 3 of this Agreement.
SECTION
11. Closing
Documents.
Without
limiting the generality of Section 8 hereof, the closing shall be subject
to
delivery of each of the following documents:
(a) An
Officers’ Certificate of the Seller, dated the Closing Date, upon which the
Purchaser and the Underwriters may rely with respect to certain facts regarding
the sale of the Mortgage Loans by the Seller to the Purchaser;
(b) An
Opinion of Counsel of the Seller, dated the Closing Date and addressed
to the
Purchaser and the Underwriters;
(c) Such
opinions of counsel as the Rating Agencies or the Trustee may request in
connection with the sale of the Mortgage Loans by the Seller to the Purchaser
or
the Seller’s execution and delivery of, or performance under, this Agreement;
and
(d) Such
further information, certificates, opinions and documents as the Purchaser
or
the Underwriters may reasonably request.
SECTION
12. Costs.
The
Seller shall pay (or shall reimburse the Purchaser or any other Person
to the
extent that the Purchaser or such other Person shall pay) all costs and
expenses
incurred in connection with the transfer and delivery of the Mortgage Loans,
including without limitation, fees for title policy endorsements and
continuations, the fees and expenses of the Seller’s accountants and attorneys,
the costs and expenses incurred in connection with producing the Servicer’s loan
loss, foreclosure and delinquency experience, and the costs and expenses
incurred in connection with obtaining the documents referred to in Sections
11(b) and 11(c), the costs and expenses of printing (or otherwise reproducing)
and delivering this Agreement, the Pooling and Servicing Agreement, the
Certificates, the prospectus and prospectus supplement, and any private
placement memorandum relating to the Certificates and other related documents,
the initial fees, costs and expenses of the Trustee and its counsel, the
fees
and expenses of the Purchaser’s counsel in connection with the preparation of
all documents relating to the securitization of the Mortgage Loans, the
filing
fee charged by the Securities and Exchange Commission for registration
of the
Certificates and the fees charged by any rating agency to rate the Certificates.
The Seller shall pay all costs and expenses related to recording the Assignments
of Mortgage. All other costs and expenses in connection with the transactions
contemplated hereunder shall be borne by the party incurring such
expense.
SECTION
13. Mandatory
Delivery; Grant of Security Interest.
The
sale and delivery on the Closing Date of the Mortgage Loans described on
the
Mortgage Loan Schedule in accordance with the terms and conditions of this
Agreement is mandatory. It is specifically understood and agreed that each
Mortgage Loan is unique and identifiable on the date hereof and that an
award of
money damages would be insufficient to compensate the Purchaser for the
losses
and damages incurred by the Purchaser in the event of the Seller’s failure to
deliver the Mortgage Loans on or before the Closing Date. The Seller hereby
grants to the Purchaser a lien on and a continuing security interest in
the
Seller’s interest in each Mortgage Loan and each document and instrument
evidencing each such Mortgage Loan to secure the performance by the Seller
of
its obligation hereunder, and the Seller agrees that it holds such Mortgage
Loans in custody for the Purchaser, subject to the Purchaser’s (i) right, prior
to the Closing Date, to reject any Mortgage Loan to the extent permitted
by this
Agreement and (ii) obligation to deliver or cause to be delivered the
consideration for the Mortgage Loans pursuant to Section 3 hereof. Any
Mortgage
Loans rejected by the Purchaser shall concurrently therewith be released
from
the security interest created hereby. All rights and remedies of the Purchaser
under this Agreement are distinct from, and cumulative with, any other
rights or
remedies under this Agreement or afforded by law or equity and all such
rights
and remedies may be exercised concurrently, independently or
successively.
Notwithstanding
the foregoing, if on the Closing Date, each of the conditions set forth
in
Section 10 hereof shall have been satisfied and the Purchaser shall not
have
paid or caused to be paid the Purchase Price, or any such condition shall
not
have been waived or satisfied and the Purchaser determines not to pay or
cause
to be paid the Purchase Price, the Purchaser shall immediately effect the
redelivery of the Mortgage Loans, if delivery to the Purchaser has occurred,
and
the security interest created by this Section 13 shall be deemed to have
been
released.
SECTION
14. Notices.
All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given if personally delivered to or mailed by
registered mail, postage prepaid, or transmitted by fax and, receipt of
which is
confirmed by telephone, if to the Purchaser, addressed to the Purchaser
at Two
World Xxxxxxxxx Xxxxxx, Xxxxxxxx X, 00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, fax: (000) 000-0000, Attention: Legal Department
(NAAC
2006-WF1), or such other address as may hereafter be furnished to the Seller
in
writing by the Purchaser; and if to the Seller, addressed to the Seller
at Two
World Xxxxxxxxx Xxxxxx, Xxxxxxxx X, 00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, fax: (000) 000-0000, Attention: Xxxxx Xxxxxx,
or to
such other address as the Seller may designate in writing to the
Purchaser.
SECTION
15. Severability
of Provisions.
Any
part, provision, representation or warranty of this Agreement that is prohibited
or that is held to be void or unenforceable shall be ineffective to the
extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation or warranty of this
Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating
the
remaining provisions hereof, and any such prohibition or unenforceability
in any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which
prohibits
or renders void or unenforceable any provision hereof.
SECTION
16. Agreement
of Parties.
The
Seller and the Purchaser each agree to execute and deliver such instruments
and
take such actions as either of the others may, from time to time, reasonably
request in order to effectuate the purpose and to carry out the terms of
this
Agreement and the Pooling and Servicing Agreement.
SECTION
17. Survival.
The
Seller agrees that the representations, warranties and agreements made
by it
herein and in any certificate or other instrument delivered pursuant hereto
shall be deemed to be relied upon by the Purchaser, notwithstanding any
investigation heretofore or hereafter made by the Purchaser or on its behalf,
and that the representations, warranties and agreements made by the Seller
herein or in any such certificate or other instrument shall survive the
delivery
of and payment for the Mortgage Loans and shall continue in full force
and
effect, notwithstanding any restrictive or qualified endorsement on the
Mortgage
Notes and notwithstanding subsequent termination of this Agreement, the
Pooling
and Servicing Agreement or the Trust Fund.
SECTION
18. GOVERNING
LAW.
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES
OF THE
PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS
(EXCLUDING THE CHOICE OF LAW PROVISIONS) AND DECISIONS OF THE STATE OF
NEW YORK.
THE PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE
NEW YORK
GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
SECTION
19. Miscellaneous.
This
Agreement may be executed in two or more counterparts, each of which when
so
executed and delivered shall be an original, but all of which together
shall
constitute one and the same instrument. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and assigns. This Agreement supersedes all prior agreements
and
understandings relating to the subject matter hereof. Neither this Agreement
nor
any term hereof may be changed, waived, discharged or terminated orally,
but
only by an instrument in writing signed by the party against whom enforcement
of
the change, waiver, discharge or termination is sought. The headings in
this
Agreement are for purposes of reference only and shall not limit or otherwise
affect the meaning hereof.
It
is the
express intent of the parties hereto that the conveyance of the Mortgage
Loans
by the Seller to the Purchaser as provided in Section 4 hereof be, and
be
construed as, a sale of the Mortgage Loans by the Seller to the Purchaser
and
not as a pledge of the Mortgage Loans by the Seller to the Purchaser to
secure a
debt or other obligation of the Seller. However, in the event that,
notwithstanding the aforementioned intent of the parties, the Mortgage
Loans are
held to be property of the Seller, then (a) it is the express intent of
the
parties that such conveyance be deemed a pledge of the Mortgage Loans by
the
Seller to the Purchaser to secure a debt or other obligation of the Seller
and
(b) (1) this Agreement shall also be deemed to be a security agreement
within
the meaning of Articles 8 and 9 of the New York Uniform Commercial Code;
(2) the
conveyance provided for in Section 4 hereof shall be deemed to be a grant
by the
Seller to the Purchaser of a security interest in all of the Seller’s right,
title and interest in and to the Mortgage Loans and all amounts payable
to the
holders of the Mortgage Loans in accordance with the terms thereof and
all
proceeds of the conversion, voluntary or involuntary, of the foregoing
into
cash, instruments, securities or other property, including without limitation
all amounts, other than investment earnings, from time to time held or
invested
in the Collection Account whether in the form of cash, instruments, securities
or other property; (3) the possession by the Purchaser or its agent of
Mortgage
Notes, the related Mortgages and such other items of property that constitute
instruments, money, negotiable documents or chattel paper shall be deemed
to be
“possession by the secured party” for purposes of perfecting the security
interest pursuant to Section 9-305 of the New York Uniform Commercial Code;
and
(4) notifications to persons holding such property and acknowledgments,
receipts
or confirmations from persons holding such property shall be deemed
notifications to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the Purchaser for
the
purpose of perfecting such security interest under applicable law. Any
assignment of the interest of the Purchaser pursuant to Section 4(d) hereof
shall also be deemed to be an assignment of any security interest created
hereby. The Seller and the Purchaser shall, to the extent consistent with
this
Agreement, take such actions as may be necessary to ensure that, if this
Agreement were deemed to create a security interest in the Mortgage Loans,
such
security interest would be deemed to be a perfected security interest of
first
priority under applicable law and will be maintained as such throughout
the term
of this Agreement and the Pooling and Servicing Agreement.
[Signature
page to follow]
IN
WITNESS WHEREOF, the Purchaser and the Seller have caused their names to
be
signed by their respective officers thereunto duly authorized as of the
date
first above written.
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NOMURA
CREDIT & CAPITAL, INC.
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By:
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Name:
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Title:
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NOMURA
ASSET ACCEPTANCE CORPORATION
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By:
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Name:
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Xxxx
X. Xxxxxx
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Title:
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President
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EXHIBIT
1
CONTENTS
OF MORTGAGE FILE
With
respect to each Mortgage Loan, the Mortgage File shall include each of
the
following items, which shall be available for inspection by the Purchaser
or its
designee, and which shall be delivered to the Purchaser or its designee
pursuant
to the terms of the Agreement.
(a) the
original Mortgage Note (including all riders thereto) bearing all intervening
endorsements necessary to show a complete chain of endorsements from the
original payee, endorsed in blank, via
original signature,
and, if
previously endorsed, signed in the name of the last endorsee by a duly
qualified
officer of the last endorsee. If
the
Mortgage Loan was acquired by the last endorsee in a merger, the endorsement
must be by “[name of last endorsee], successor by merger to [name of
predecessor]”. If the Mortgage Loan was acquired or originated by the last
endorsee while doing business under another name, the endorsement must
be by
“[name of last endorsee], formerly known as [previous name]”;
(b) the
original Assignment of Mortgage executed in blank;
(c) the
original of any guarantee executed in connection with the Mortgage Note,
if
any;
(d) the
original Mortgage (including all riders thereto) with evidence of recording
thereon and the original recorded power of attorney, if the Mortgage was
executed pursuant to a power of attorney, with evidence of recording thereon,
and in the case of each MOM Loan, the original Mortgage, noting the presence
of
the MIN of the Mortgage Loan and either language indicating that the Mortgage
Loan is a MOM Loan or if the Mortgage Loan was not a MOM Loan at origination,
the original Mortgage and the assignment thereof to MERS®, with evidence of
recording indicated thereon; or, if the original Mortgage with evidence
of
recording thereon has not been returned by the public recording office
where
such Mortgage has been delivered for recordation or such Mortgage has been
lost
or such public recording office retains the original recorded Mortgage,
a
photocopy of such Mortgage, together with (i) in the case of a delay caused
by
the public recording office, an Officer’s Certificate of the title insurer
insuring the Mortgage, the escrow agent, the seller or the Servicer stating
that
such Mortgage has been delivered to the appropriate public recording office
for
recordation and that the original recorded Mortgage or a copy of such Mortgage
certified by such public recording office to be a true and complete copy
of the
original recorded Mortgage will be promptly delivered to the Custodian
upon
receipt thereof by the party delivering the Officer’s Certificate or by the
Servicer; or (ii) in the case of a Mortgage where a public recording office
retains the original recorded Mortgage or in the case where a Mortgage
is lost
after recordation in a public recording office, a copy of such Mortgage
with the
recording information thereon certified by such public recording office
to be a
true and complete copy of the original recorded Mortgage;
(e) the
originals of all assumption, modification, consolidation or extension
agreements, with evidence of recording thereon, if any;
(f) the
originals of any intervening assignments of mortgage with evidence of recording
thereon evidencing a complete chain of ownership from the originator of
the
Mortgage Loan to the last assignee, or if any such intervening assignment
of
mortgage has not been returned from the applicable public recording office
or
has been lost or if such public recording office retains the original recorded
intervening assignments of mortgage, a photocopy of such intervening assignment
of mortgage, together with (i) in the case of a delay caused by the public
recording office, an Officer’s Certificate of the title insurer insuring the
Mortgage, the escrow agent, the seller or the Servicer stating that such
intervening assignment of mortgage has been delivered to the appropriate
public
recording office for recordation and that such original recorded intervening
assignment of mortgage or a copy of such intervening assignment of mortgage
certified by the appropriate public recording office to be a true and complete
copy of the original recorded intervening assignment of mortgage will be
promptly delivered to the Custodian upon receipt thereof by the party delivering
the Officer’s Certificate or by the Servicer; or (ii) in the case of an
intervening assignment of mortgage where a public recording office retains
the
original recorded intervening assignment of mortgage or in the case where
an
intervening assignment of mortgage is lost after recordation in a public
recording office, a copy of such intervening assignment of mortgage with
recording information thereon certified by such public recording office
to be a
true and complete copy of the original recorded intervening assignment
of
mortgage;
(g) if
the
Mortgage Note, the Mortgage, any Assignment of Mortgage, or any other related
document has been signed by a Person on behalf of the Mortgagor, the original
power of attorney or other instrument that authorized and empowered such
Person
to sign;
(h) the
original lender’s title insurance policy in the form of an ALTA mortgage title
insurance policy
or,
if the
original lender’s title insurance policy has not been issued, the irrevocable
commitment to issue the same; and
(i) the
original of any security agreement, chattel mortgage or equivalent document
executed in connection with the Mortgage, if any.
EXHIBIT
2
FORM
OF LOST NOTE AFFIDAVIT
Loan
#:
______________
Borrower:
______________
LOST
NOTE
AFFIDAVIT
I,
as
_____________________ of ____________________, a _______________ am authorized
to make this Affidavit on behalf of Nomura Credit & Capital, Inc. (the
“Seller”). In connection with the administration of the Mortgage Loans held by
______________________, a _______________ [corporation] as Seller on behalf
of
____________________ (the “Purchaser”), _______________________ (the
“Deponent”), being duly sworn, deposes and says that:
1.
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The
Seller’s address is:
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2. The
Seller previously delivered to the Purchaser a signed Initial Certification
with
respect to such Mortgage and/or Assignment of Mortgage;
3. Such
Mortgage Note and/or Assignment of Mortgage was assigned or sold to the
Purchaser by __________________, a _________________ pursuant to the terms
and
provisions of a Mortgage Loan Purchase Agreement dated as of August 30,
2006;
4. Such
Mortgage Note and/or Assignment of Mortgage is not outstanding pursuant
to a
request for release of Documents;
5. Aforesaid
Mortgage Note and/or Assignment of Mortgage (the “Original”) has been
lost;
6. Deponent
has made or caused to be made a diligent search for the Original and has
been
unable to find or recover same;
7. The
Seller was the Seller of the Original at the time of the loss; and
8. Deponent
agrees that, if said Original should ever come into Seller’s possession, custody
or power, Seller will immediately and without consideration surrender the
Original to the Purchaser.
9. Attached
hereto is a true and correct copy of (i) the Note, endorsed in blank by
the
Mortgagee and (ii) the Mortgage or Deed of Trust (strike one) which secures
the
Note, which Mortgage or Deed of Trust is recorded in the county where the
property is located.
10. Deponent
hereby agrees that the Seller (a) shall indemnify and hold harmless the
Purchaser, its successors and assigns, against any loss, liability or damage,
including reasonable attorney’s fees, resulting from the unavailability of any
Notes, including but not limited to any loss, liability or damage arising
from
(i) any false statement contained in this Affidavit, (ii) any claim of
any party
that purchased a mortgage loan evidenced by the Lost Note or any interest
in
such mortgage loan, (iii) any claim of any borrower with respect to the
existence of terms of a mortgage loan evidenced by the Lost Note on the
related
property to the fact that the mortgage loan is not evidenced by an original
note
and (iv) the issuance of a new instrument in lieu thereof (items (i) through
(iv) above hereinafter referred to as the “Losses”) and (b) if required by any
Rating Agency in connection with placing such Lost Note into a Pass-Through
Transfer, shall obtain a surety from an insurer acceptable to the applicable
Rating Agency to cover any Losses with respect to such Lost Note.
11. This
Affidavit is intended to be relied upon by the Purchaser, its successors
and
assigns. Nomura Credit & Capital, Inc. represents and warrants that is has
the authority to perform its obligations under this Affidavit of Lost
Note.
Executed
this _ day of _______, 200_.
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By:
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Name:
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Title:
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On
this
__ day of ______, 200_, before me appeared ______________________ to me
personally known, who being duly sworn did say that he is the
_______________________ of ____________________, a ______________________
and
that said Affidavit of Lost Note was signed and sealed on behalf of such
corporation and said acknowledged this instrument to be the free act and
deed of
said entity.
Signature:
[Seal]
EXHIBIT
D
TRANSFER
AFFIDAVIT AND AGREEMENT
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STATE
OF NEW YORK
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)
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)
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ss.:
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COUNTY
OF NEW YORK
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)
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___________________________
being duly sworn, deposes, represents and warrants as follows:
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1.
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I
am a _____________________ of _______________________________ (the
“Investor”) a corporation duly organized and existing under the laws of
_________________________, the record owner of Nomura Asset Acceptance
Corporation, Alternative Loan Trust, Series 2006-WF1 Mortgage Pass-Through
Certificates, Class R Certificates (the “Class R Certificates”), on behalf
of whom I make this affidavit and agreement. Capitalized terms
used but
not defined herein have the respective meanings assigned thereto
in the
Pooling and Servicing Agreement pursuant to which the Class R Certificates
were issued.
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2.
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The
Investor (i) is and will be a “Permitted Transferee” as of
____________________. ____ and (ii) is acquiring the Class R Certificates
for its own account or for the account of another Investor from
which it
has received an affidavit in substantially the same form as this
affidavit. A “Permitted Transferee” is any person other than a
“disqualified organization” or a possession of the United States. For this
purpose, a “disqualified organization” means the United States, any state
or political subdivision thereof, any agency or instrumentality
of any of
the foregoing (other than an instrumentality all of the activities
of
which are subject to tax and, except for the Federal Home Loan
Mortgage
Corporation, a majority of whose board of directors is not selected
by any
such governmental entity) or any foreign government, international
organization or any agency or instrumentality of such foreign government
or organization, any real electric or telephone cooperative, or
any
organization (other than certain farmers’ cooperatives) that is generally
exempt from federal income tax unless such organization is subject
to the
tax on unrelated business taxable
income.
|
|
3.
|
The
Investor is aware (i) of the tax that would be imposed on transfers
of the
Class R Certificates to disqualified organizations under the Internal
Revenue Code of 1986 that applies to all transfers of the Class
R
Certificates after July 31, 1988; (ii) that such tax would be on
the
transferor or, if such transfer is through an agent (which person
includes
a broker, nominee or middleman) for a non-Permitted Transferee,
on the
agent; (iii) that the person otherwise liable for the tax shall
be
relieved of liability for the tax if the transferee furnishes to
such
person an affidavit that the transferee is a Permitted Transferee
and, at
the time of transfer, such person does not have actual knowledge
that the
affidavit is false; and (iv) that each of the Class R Certificates
may be
a “noneconomic residual interest” within the meaning of proposed Treasury
regulations promulgated under the Code and that the transferor
of a
“noneconomic residual interest” will remain liable for any taxes due with
respect to the income on such residual interest, unless no significant
purpose of the transfer is to impede the assessment or collection
of
tax.
|
|
4.
|
The
Investor is aware of the tax imposed on a “pass-through entity” holding
the Class R Certificates if, at any time during the taxable year
of the
pass-through entity, a non-Permitted Transferee is the record holder
of an
interest in such entity. (For this purpose, a “pass-through entity”
includes a regulated investment company, a real estate investment
trust or
common trust fund, a partnership, trust or estate, and certain
cooperatives.)
|
|
5.
|
The
Investor is aware that the Securities Administrator will not register
the
transfer of any Class R Certificate unless the transferee, or the
transferee’s agent, delivers to the Securities Administrator, among other
things, an affidavit in substantially the same form as this affidavit.
The
Investor expressly agrees that it will not consummate any such
transfer if
it knows or believes that any of the representations contained
in such
affidavit and agreement are false.
|
|
6.
|
The
Investor consents to any additional restrictions or arrangements
that
shall be deemed necessary upon advice of counsel to constitute
a
reasonable arrangement to ensure that the Class R Certificates
will only
be owned, directly or indirectly, by an Investor that is a Permitted
Transferee.
|
|
7.
|
The
Investor’s taxpayer identification number is
________________.
|
|
8.
|
The
Investor has reviewed the restrictions set forth on the face of
the Class
R Certificates and the provisions of Section 6.02(d) of the Pooling
and
Servicing Agreement under which the Class R Certificates were issued
(in
particular, clauses (iii)(A) and (iii)(B) of Section 6.02(d) which
authorize the Securities Administrator to deliver payments to a
person
other than the Investor and negotiate a mandatory sale by the Securities
Administrator in the event that the Investor holds such Certificate
in
violation of Section 6.02(d)); and that the Investor expressly
agrees to
be bound by and to comply with such restrictions and
provisions.
|
|
9.
|
The
Investor is not acquiring and will not transfer the Class R Certificates
in order to impede the assessment or collection of any
tax.
|
|
10.
|
The
Investor anticipates that it will, so long as it holds the Class
R
Certificates, have sufficient assets to pay any taxes owed by the
holder
of such Class R Certificates, and hereby represents to and for
the benefit
of the person from whom it acquired the Class R Certificates that
the
Investor intends to pay taxes associated with holding such Class
R
Certificates as they become due, fully understanding that it may
incur tax
liabilities in excess of any cash flows generated by the Class
R
Certificates.
|
|
11.
|
The
Investor has no present knowledge that it may become insolvent
or subject
to a bankruptcy proceeding for so long as it holds the Class R
Certificates.
|
|
12.
|
The
Investor has no present knowledge or expectation that it will be
unable to
pay any United States taxes owed by it so long as any of the Certificates
remain outstanding.
|
|
13.
|
The
Investor is not acquiring the Class R Certificates with the intent
to
transfer the Class R Certificates to any person or entity that
will not
have sufficient assets to pay any taxes owed by the holder of such
Class R
Certificates, or that may become insolvent or subject to a bankruptcy
proceeding, for so long as the Class R Certificates remain
outstanding.
|
|
14.
|
The
Investor will, in connection with any transfer that it makes of
the Class
R Certificates, obtain from its transferee the representations
required by
Section 6.02(d) of the Pooling and Servicing Agreement under which
the
Class R Certificate were issued and will not consummate any such
transfer
if it knows, or knows facts that should lead it to believe, that
any such
representations are false.
|
|
15.
|
The
Investor will, in connection with any transfer that it makes of
the Class
R Certificates, deliver to the Securities Administrator an affidavit,
which represents and warrants that it is not transferring the Class
R
Certificates to impede the assessment or collection of any tax
and that it
has no actual knowledge that the proposed transferee: (i) has insufficient
assets to pay any taxes owed by such transferee as holder of the
Class R
Certificates; (ii) may become insolvent or subject to a bankruptcy
proceeding for so long as the Class R Certificates remains outstanding;
and (iii) is not a “Permitted
Transferee”.
|
|
16.
|
The
Investor is a citizen or resident of the United States, a corporation,
partnership or other entity created or organized in, or under the
laws of,
the United States or any political subdivision thereof, or an estate
or
trust whose income from sources without the United States may be
included
in gross income for United States federal income tax purposes regardless
of its connection with the conduct of a trade or business within
the
United States.
|
|
17.
|
The
Investor of the Class R Certificate, hereby agrees that in the
event that
the Trust Fund created by the Pooling and Servicing Agreement is
terminated pursuant to Section 10.01 thereof, the undersigned shall
assign
and transfer to the Holders of the Class X and the Class P Certificates
any amounts in excess of par received in connection with such termination.
Accordingly, in the event of such termination, the Securities
Administrator is hereby authorized to withhold any such amounts
in excess
of par and to pay such amounts directly to the Holders of the Class
X and
the Class P Certificates. This agreement shall bind and be enforceable
against any successor, transferee or assigned of the undersigned
in the
Class R Certificate. In connection with any transfer of the Class
R
Certificate, the Investor shall obtain an agreement substantially
similar
to this clause from any subsequent
owner.
|
IN
WITNESS WHEREOF, the Investor has caused this instrument to be executed on
its
behalf, pursuant to the authority of its Board of Directors, by its [Vice]
President, attested by its [Assistant] Secretary, this ____ day of
_________________, ____.
|
[INVESTOR]
|
||||||||
|
By:
|
||||||||
|
Name:
|
||||||||
|
Title:
[Vice] President
|
||||||||
ATTEST:
|
By:
|
||
|
Name:
|
||
|
Title:
[Assistant] Secretary
|
Personally
appeared before me the above-named __________________, known or proved to
me to
be the same person who executed the foregoing instrument and to be a [Vice]
President of the Investor, and acknowledged to me that [he/she] executed
the
same as [his/her] free act and deed and the free act and deed of the
Investor.
Subscribed
and sworn before me this ______________ day of __________, ____.
|
Notary
Public
|
||||
|
County
of
|
||||
|
State
of
|
||||
|
My
Commission expires:
|
||||
FORM
OF
TRANSFEROR AFFIDAVIT
|
STATE
OF NEW YORK
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF NEW YORK
|
)
|
_________________________,
being duly sworn, deposes, represents and warrants as follows:
1. I
am
a ____________________
of _________________________ (the “Investor”), a corporation duly organized and
existing under the laws of _____________, on behalf of whom I make this
affidavit.
2. The
Investor is not transferring the Class R Certificates (the “Residual
Certificates”) to impede the assessment or collection of any tax.
3. The
Investor has no actual knowledge that the Person that is the proposed transferee
(the “Purchaser”) of the Residual Certificates: (i) has insufficient assets to
pay any taxes owed by such proposed transferee as holder of the Residual
Certificates; (ii) may become insolvent or subject to a bankruptcy proceeding
for so long as the Residual Certificates remain outstanding and (iii) is
not a
Permitted Transferee.
4. The
Investor understands that the Purchaser has delivered to the Securities
Administrator a transfer affidavit and agreement in the form attached to
the
Pooling and Servicing Agreement as Exhibit D. The Investor does not know
or
believe that any representation contained therein is false.
5. At
the
time of transfer, the Investor has conducted a reasonable investigation of
the
financial condition of the Purchaser as contemplated by Treasury Regulations
Section 1.860E-1(c)(4)(i) and, as a result of that investigation, the Investor
has determined that the Purchaser has historically paid its debts as they
became
due and has found no significant evidence to indicate that the Purchaser
will
not continue to pay its debts as they become due in the future. The Investor
understands that the transfer of a Residual Certificate may not be respected
for
United States income tax purposes (and the Investor may continue to be liable
for United States income taxes associated therewith) unless the Investor
has
conducted such an investigation.
6. Capitalized
terms not otherwise defined herein shall have the meanings ascribed to them
in
the Pooling and Servicing Agreement dated as of August 1, 2006, among Nomura
Asset Acceptance Corporation, Nomura Credit & Capital, Inc., Xxxxx Fargo
Bank, N.A. and HSBC Bank USA, National Association.
IN
WITNESS WHEREOF, the Investor has caused this instrument to be executed on
its
behalf, pursuant to the authority of its Board of Directors, by its [Vice]
President, attested by its [Assistant] Secretary, this ____ day of
________________, ____.
|
[INVESTOR]
|
||||||||
|
By:
|
||||||||
|
Name:
|
||||||||
|
Title:
[Vice] President
|
||||||||
ATTEST:
|
By:
|
||
|
Name:
|
||
|
Title:
[Assistant] Secretary
|
Personally
appeared before me the above-named _________________, known or proved to
me to
be the same person who executed the foregoing instrument and to be a [Vice]
President of the Investor, and acknowledged to me that [he/she] executed
the
same as [his/her] free act and deed and the free act and deed of the
Investor.
Subscribed
and sworn before me this ______ day of _____________, ____.
|
Notary
Public
|
||||
|
County
of
|
||||
|
State
of
|
||||
|
My
Commission expires:
|
||||
Personally
appeared before me the above-named [Name of Officer], known or proved to
me to
be the same person who executed the foregoing instrument and to be the [Title
of
Officer] of the Investor, and acknowledged to me that he/she executed the
same
as his/her free act and deed and the free act and deed of the
Investor.
Subscribed
and sworn before me this ___ day of _________, 20___.
NOTARY
PUBLIC
COUNTY
OF
STATE
OF
My
commission expires the ___ day of ___________________, 20___.
EXHIBIT
E
FORM
OF
TRANSFEROR CERTIFICATE
______________,
2006
Nomura
Asset Acceptance Corporation
2
World
Fixxxxxxx Xxxxxx, Xxxxxxxx X
Xxx
Xxxx,
Xxx Xxxx 00000
Xxxxx
Fargo Bank, N.A.
Sixxx
Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx,
Xxxxxxxxx 00000
|
Re:
|
Nomura
Asset Acceptance Corporation
Mortgage
Pass-Through Certificates, Series 2006-WF1, Class
[X][P][R]
|
Ladies
and Gentlemen:
In
connection with the sale by ___________ (the “Sponsor”) to ________ (the
“Purchaser”) of $_________ Initial Certificate Principal Balance of Mortgage
Pass-Through Certificates, Series 2006-WF1, Class [X][P][R] (the
“Certificates”), issued pursuant to the Pooling and Servicing Agreement (the
“Pooling and Servicing Agreement”), dated as of August 1, 2006, among Nomura
Asset Acceptance Corporation, as depositor (the “Depositor”), Nomura Credit
& Capital, Inc., as sponsor, Xxxxx Fargo Bank, N.A., as master servicer (the
“Master Servicer”) and securities administrator (the “Securities Administrator”)
and HSBC Bank USA, National Association, as trustee (the “Trustee”). The Sponsor
hereby certifies, represents and warrants to, a covenants with, the Depositor,
the Securities Administrator and the Trustee that:
Neither
the Sponsor nor anyone acting on its behalf has (a) offered, pledged, sold,
disposed of or otherwise transferred any Certificate, any interest in any
Certificate or any other similar security to any person in any manner, (b)
has
solicited any offer to buy or to accept a pledge, disposition or other transfer
of any Certificate, any interest in any Certificate or any other similar
security from any person in any manner, (c) has otherwise approached or
negotiated with respect to any Certificate, any interest in any Certificate
or
any other similar security with any person in any manner, (d) has made any
general solicitation by means of general advertising or in any other manner,
or
(e) has taken any other action, that (as to any of (a) through (e) above)
would
constitute a distribution of the Certificates under the Securities Act of
1933
(the “Act”), that would render the disposition of any Certificate a violation of
Section 5 of the Act or any state securities law, or that would require
registration or qualification pursuant thereto. The Sponsor will not act
in any
manner set forth in the foregoing sentence with respect to any Certificate.
The
Sponsor has not and will not sell or otherwise transfer any of the Certificates,
except in compliance with the provisions of the Pooling and Servicing
Agreement.
|
Very
truly yours,
|
||||||||
|
|
||||||||
|
(Sponsor)
|
||||||||
|
By:
|
||||||||
|
Name:
|
||||||||
|
Title:
|
||||||||
EXHIBIT
F
FORM
OF
INVESTOR REPRESENTATION LETTER (NON-RULE 144A)
___________,
2006
Nomura
Asset Acceptance Corporation
2
World
Financial Center
New
York,
New York 10281
Xxxxx
Fargo Bank, N.A.
Sixxx
Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx,
Xxxxxxxxx 00000
|
Re:
|
Nomura
Asset Acceptance Corporation, Alternative Loan Trust, Mortgage
Pass-Through Certificates, Series
2006-WF1
|
Ladies
and Gentlemen:
_______________
(the “Purchaser”) intends to purchase from ____________ (the “Sponsor”)
$_________ Initial Certificate Principal Balance of Mortgage Pass-Through
Certificates, Series 2006-WF1, Class [X][P][R] (the “Certificates”), issued
pursuant to the Pooling and Servicing Agreement (the “Pooling and Servicing
Agreement”), dated as of August 1, 2006, among Nomura Asset Acceptance
Corporation, as depositor (the “Depositor”), Nomura Credit & Capital, Inc.,
as sponsor, Xxxxx Fargo Bank, N.A., as master servicer (the “Master Servicer”)
and securities administrator (the “Securities Administrator”) and HSBC Bank USA,
National Association, as trustee (the “Trustee”). All terms used herein and not
otherwise defined shall have the meanings set forth in the Pooling and Servicing
Agreement. The Purchaser hereby certifies, represents and warrants to, and
covenants with, the Depositor, the Securities Administrator and the Trustee
that:
|
1.
|
The
Purchaser understands that (a) the Certificates have not been and
will not
be registered or qualified under the Securities Act of 1933, as
amended
(the “Act”) or any state securities law, (b) the Depositor is not required
to so register or qualify the Certificates, (c) the Certificates
may be
resold only if registered and qualified pursuant to the provisions
of the
Act or any state securities law, or if an exemption from such registration
and qualification is available, (d) the Pooling and Servicing Agreement
contains restrictions regarding the transfer of the Certificates
and (e)
the Certificates will bear a legend to the foregoing
effect.
|
|
2.
|
The
Purchaser is acquiring the Certificates for its own account for
investment
only and not with a view to or for sale in connection with any
distribution thereof in any manner that would violate the Act or
any
applicable state securities laws.
|
|
3.
|
The
Purchaser is (a) a substantial, sophisticated institutional investor
having such knowledge and experience in financial and business
matters,
and, in particular, in such matters related to securities similar
to the
Certificates, such that it is capable of evaluating the merits
and risks
of investment in the Certificates, (b) able to bear the economic
risks of
such an investment and (c) an “accredited investor” within the meaning of
Rule 501 (a) promulgated pursuant to the Act.
|
|
4.
|
The
Purchaser has been furnished with, and has had an opportunity to
review
(a) a copy of the Pooling and Servicing Agreement and (b) such
other
information concerning the Certificates, the Mortgage Loans and
the
Depositor as has been requested by the Purchaser from the Depositor
or the
Sponsor and is relevant to the Purchaser’s decision to purchase the
Certificates. The Purchaser has had any questions arising from
such review
answered by the Depositor or the Sponsor to the satisfaction of
the
Purchaser.
|
|
5.
|
The
Purchaser has not and will not nor has it authorized or will it
authorize
any person to (a) offer, pledge, sell, dispose of or otherwise
transfer
any Certificate, any interest in any Certificate or any other similar
security to any person in any manner, (b) solicit any offer to
buy or to
accept a pledge, disposition of other transfer of any Certificate,
any
interest in any Certificate or any other similar security from
any person
in any manner, (c) otherwise approach or negotiate with respect
to any
Certificate, any interest in any Certificate or any other similar
security
with any person in any manner, (d) make any general solicitation
by means
of general advertising or in any other manner or (e) take any other
action, that (as to any of (a) through (e) above) would constitute
a
distribution of any Certificate under the Act, that would render
the
disposition of any Certificate a violation of Section 5 of the
Act or any
state securities law, or that would require registration or qualification
pursuant thereto. The Purchaser will not sell or otherwise transfer
any of
the Certificates, except in compliance with the provisions of the
Pooling
and Servicing Agreement.
|
|
Very
truly yours,
|
||||||||
|
|
||||||||
|
(Purchaser)
|
||||||||
|
By:
|
||||||||
|
Name:
|
||||||||
|
Title:
|
||||||||
EXHIBIT
G
FORM
OF
RULE 144A INVESTMENT LETTER
[Date]
Nomura
Credit & Capital, Inc.
2
World
Financial Cexxxx, Xxxxxxxx X
Xxx
Xxxx,
Xxx Xxxx 00000
Nomura
Asset Acceptance Corporation
2
World
Financial Center
New
York,
New York 10281
Xxxxx
Fargo Bank, N.A.
Sixxx
Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx,
Xxxxxxxxx 00000
|
Re:
|
Nomura
Asset Acceptance Corporation, Alternative Loan Trust, Mortgage
Pass-Through Certificates, Series 2006-WF1 (the “Certificates”), including
the Class [X][P][R] Certificates (the “Private
Certificates”)
|
Dear
Ladies and Gentlemen:
In
connection with our purchase of Private Certificates, we confirm
that:
|
(i)
|
we
understand that the Private Certificates are not being registered
under
the Securities Act of 1933, as amended (the “Act”) or any applicable state
securities or “Blue Sky” laws, and are being sold to us in a transaction
that is exempt from the registration requirements of such
laws;
|
|
(ii)
|
any
information we desired concerning the Certificates, including the
Private
Certificates, the trust in which the Certificates represent the
entire
beneficial ownership interest (the “Trust”) or any other matter we deemed
relevant to our decision to purchase Private Certificates has been
made
available to us;
|
|
(iii)
|
we
are able to bear the economic risk of investment in Private Certificates;
we are an institutional “accredited investor” as defined in Section 501(a)
of Regulation D promulgated under the Act and a sophisticated
institutional investor and we agree to obtain a representation
from any
transferee that such transferee is an institutional “accredited investor”
so long as we are required to obtain a representation letter regarding
compliance with the Act;
|
|
(iv)
|
we
are acquiring Private Certificates for our own account, not as
nominee for
any other person, and not with a present view to any distribution
or other
disposition of the Private Certificates;
|
|
(v)
|
we
agree the Private Certificates must be held indefinitely by us
(and may
not be sold, pledged, hypothecated or in any way disposed of) unless
subsequently registered under the Act and any applicable state
securities
or “Blue Sky” laws or an exemption from the registration requirements of
the Act and any applicable state securities or “Blue Sky” laws is
available;
|
|
(vi)
|
we
agree that in the event that at some future time we wish to dispose
of or
exchange any of the Private Certificates (such disposition or exchange
not
being currently foreseen or contemplated), we will not transfer
or
exchange any of the Private Certificates unless:
|
|
(A)
(1) the sale is to an Eligible Purchaser (as defined below), (2)
if
required by the Pooling and Servicing Agreement (as defined below)
a
letter to substantially the same effect as either this letter or,
if the
Eligible Purchaser is a Qualified Institutional Buyer as defined
under
Rule 144A of the Act, the Rule 144A and Related Matters Certificate
in the
form attached to the Pooling and Servicing Agreement (as defined
below)
(or such other documentation as may be acceptable to the Securities
Administrator) is executed promptly by the purchaser and delivered
to the
addressees hereof and (3) all offers or solicitations in connection
with
the sale, whether directly or through any agent acting on our behalf,
are
limited only to Eligible Purchasers and are not made by means of
any form
of general solicitation or general advertising whatsoever;
and
|
|
|
(B)
if the Private Certificate is not registered under the Act (as
to which we
acknowledge you have no obligation), the Private Certificate is
sold in a
transaction that does not require registration under the Act and
any
applicable state securities or “blue sky” laws and, if the Securities
Administrator or HSBC Bank USA, National Association, as trustee
(the
“Trustee”) so requests, a satisfactory Opinion of Counsel is furnished to
such effect, which Opinion of Counsel shall be an expense of the
transferor or the transferee;
|
|
|
(vii)
|
we
agree to be bound by all of the terms (including those relating
to
restrictions on transfer) of the Pooling and Servicing, 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) in the case
of a
Class X, Class P or Class R Certificate, are providing the opinion
of
counsel specified in Section 6.02(b) of the Agreement.
|
|
(ix)
|
we
understand that each of the Class [X][P][R] Certificates bears,
and will
continue to bear, legends substantially to the following effect:
“THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR UNDER ANY STATE
SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE,
AGREES
THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER
APPLICABLE LAWS AND ONLY (1) PURSUANT TO RULE 144A UNDER THE SECURITIES
ACT (“RULE 144A”) TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A (A
“QIB”),
PURCHASING FOR ITS OWN ACCOUNT OR A QIB PURCHASING FOR THE ACCOUNT
OF A
QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER,
RESALE,
PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A,
(2)
PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144
UNDER THE
SECURITIES ACT (IF AVAILABLE) OR (3) IN CERTIFICATED FORM TO AN
“INSTITUTIONAL ACCREDITED INVESTOR” WITHIN THE MEANING THEREOF IN RULE
501(a)(1), (2), (3) or (7) OF REGULATION D UNDER THE ACT OR ANY
ENTITY IN
WHICH ALL OF THE EQUITY OWNERS COME WITHIN SUCH PARAGRAPHS PURCHASING
NOT
FOR DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, SUBJECT TO
(A) THE
RECEIPT BY THE SECURITIES ADMINISTRATOR OF A LETTER SUBSTANTIALLY
IN THE
FORM PROVIDED IN THE AGREEMENT AND (B) THE RECEIPT BY THE SECURITIES
ADMINISTRATOR OF SUCH OTHER EVIDENCE ACCEPTABLE TO THE SECURITIES
ADMINISTRATOR THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS
IN
COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS OR
IN EACH
CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE UNITED
STATES AND ANY OTHER APPLICABLE JURISDICTION.
|
|
NO TRANSFER
OF THIS CERTIFICATE MAY BE MADE TO ANY PERSON, UNLESS THE TRANSFEREE
PROVIDES A CERTIFICATION PURSUANT TO SECTION 6.02(b) OF THE AGREEMENT
|
“Eligible
Purchaser”
means
a
corporation, partnership or other entity which we have reasonable grounds
to
believe and do believe (i) can make representations with respect to itself
to
substantially the same effect as the representations set forth herein, and
(ii)
is either a Qualified Institutional Buyer as defined under Rule 144A of the
Act
or an institutional “Accredited Investor” as defined under Rule 501 of the
Act.
Terms
not
otherwise defined herein shall have the meanings assigned to them in the
Pooling
and Servicing Agreement, dated as of August 1, 2006, between Nomura Asset
Acceptance Corporation, as depositor, Nomura Credit & Capital, Inc., as
sponsor, Xxxxx Fargo Bank, N.A., as master servicer (the “Master Servicer”) and
securities administrator (the “Securities Administrator”) and HSBC Bank USA,
National Association, as trustee (the “Trustee”) (the “Pooling and Servicing
Agreement’).
If
the
Purchaser proposes that its Certificates be registered in the name of a nominee
on its behalf, the Purchaser has identified such nominee below, and has caused
such nominee to complete the Nominee Acknowledgment at the end of this
letter.
Name
of
Nominee (if any): _______________________________
IN
WITNESS WHEREOF, this document has been executed by the undersigned who is
duly
authorized to do so on behalf of the undersigned Eligible Purchaser on the
___
day of ________, 20___.
|
Very
truly yours,
|
||||||||||||
|
[PURCHASER]
|
||||||||||||
|
By:
|
||||||||||||
|
(Authorized
Officer)
|
||||||||||||
|
[By:
|
||||||||||||
|
Attorney-in-fact]
|
||||||||||||
Nominee
Acknowledgment
The
undersigned hereby acknowledges and agrees that as to the Certificates being
registered in its name, the sole beneficial owner thereof is and shall be
the
Purchaser identified above, for whom the undersigned is acting as
nominee.
|
[NAME
OF NOMINEE]
|
||||||||||||
|
By:
|
||||||||||||
|
(Authorized
Officer)
|
||||||||||||
|
[By:
|
||||||||||||
|
Attorney-in-fact]
|
||||||||||||
EXHIBIT
H
FORM
OF
ADDITIONAL DISCLOSURE NOTIFICATION
Xxxxx
Fargo Bank, N.A. as Securities Administrator
0000
Xxx
Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
Fax:
(000) 000-0000
E-mail:
xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx
Nomura
Asset Acceptance Corporation
2
World
Xxxxxxxxx Xxxxxx, Xxxxxxxx X
Xxx
Xxxx,
Xxx Xxxx 00000
Attn: Corporate
Trust Services - Nomura Asset Acceptance Corporation, Alternative Loan Trust,
Mortgage
Pass-Through Certificates, Series 2006-WF1 - SEC REPORT PROCESSING
RE:
**Additional Form [10-K][10-D][8-K] Disclosure**Required
Ladies
and Gentlemen:
In
accordance with Section [ ] of the Pooling and Servicing Agreement, dated
as of
August 1, 2006, among the Purchaser as depositor, Nomura Credit & Capital,
Inc., as sponsor, Xxxxx Fargo Bank, National Association, as Master Servicer
and
Securities Administrator, the Undersigned, as [ ], hereby notifies you that
certain events have come to our attention that [will][may] need to be disclosed
on Form [10-K][10-D][8-K].
Description
of Additional Form [10-K][10-D][8-K]Disclosure:
List
of
Any Attachments hereto to be included in the Additional Form [10-K][10-D][8-K]
Disclosure:
Any
inquiries related to this notification should be directed to [ ], phone number:
[ ]; email address: [ ].
[NAME
OF
PARTY]
as
[role]
By:
__________________
Name:
Title:
EXHIBIT
I
DTC
Letter of Representations
[provided
upon request]
EXHIBIT
J
Schedule
of Mortgage Loans with Lost Notes
NONE
EXHIBIT
K
APPENDIX
E - Standard & Poor’s Anti-Predatory Lending
Categorization
Standard
& Poor’s has categorized loans governed by anti-predatory lending laws in
the Jurisdictions listed below into three categories based upon a combination
of
factors that include (a) the risk exposure associated with the assignee
liability and (b) the tests and thresholds set forth in those laws. Note
that
certain loans classified by the relevant statute as Covered are included
in
Standard & Poor’s High Cost Loan Category because they included thresholds
and tests that are typical of what is generally considered High Cost by the
industry.
|
Standard
& Poor’s High Cost Loan Categorization
|
||
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending Law/Effective Date
|
Category
under Applicable Anti-Predatory Lending Law
|
|
Arkansas
|
Arkansas
Home Loan Protection Act, Ark. Code Xxx. §§ 00-00-000 et seq.
Effective
July 16, 2003
|
High
Cost Home Loan
|
|
Cleveland
Heights, OH
|
Ordinance
No. 72-2003 (PSH), Mun. Code §§ 757.01 et seq.
Effective
June 2, 2003
|
Covered
Loan
|
|
Colorado
|
Consumer
Equity Protection, Colo. Stat. Xxx. §§ 5-3.5-101 et seq.
Effective
for covered loans offered or entered into on or after January 1,
2003.
Other provisions of the Act took effect on June 7, 2002
|
Covered
Loan
|
|
Connecticut
|
Connecticut
Abusive Home Loan Lending Practices Act, Conn. Gen. Stat. §§ 36a-746
et seq.
Effective
October 1, 2001
|
High
Cost Home Loan
|
|
District
of Columbia
|
Home
Loan Protection Act, D.C. Code §§ 26-1151.01 et seq.
Effective
for loans closed on or after January 28, 2003
|
Covered
Loan
|
|
Florida
|
Fair
Lending Act, Fla. Stat. Xxx. §§ 494.0078 et seq.
Effective
October 2, 2002
|
High
Cost Home Loan
|
|
Standard
& Poor’s High Cost Loan Categorization
|
||
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending Law/Effective Date
|
Category
under Applicable Anti-Predatory Lending Law
|
|
Georgia
(Oct. 1, 2002 - Mar. 6, 2003)
|
Georgia
Fair Lending Act, Ga. Code Xxx. §§ 7-6A-1 et seq.
Effective
October 1, 2002 - March 6, 2003
|
High
Cost Home Loan
|
|
Georgia
as amended (Mar. 7, 2003 - current)
|
Georgia
Fair Lending Act, Ga. Code Xxx. §§ 7-6A-1 et seq.
Effective
for loans closed on or after March 7, 2003
|
High
Cost Home Loan
|
|
HOEPA
Section 32
|
Home
Ownership and Equity Protection Act of 1994, 15 U.S.C. § 1639, 12 C.F.R.
§§ 226.32 and 226.34
Effective
October 1, 1995, amendments October 1, 2002
|
High
Cost Loan
|
|
Illinois
|
High
Risk Home Loan Act, Ill. Comp. Stat. tit. 815, §§ 137/5 et seq.
Effective
January 1, 2004 (prior to this date, regulations under Residential
Mortgage License Act effective from May 14, 2001)
|
High
Risk Home Loan
|
|
Kansas
|
Consumer
Credit Code, Kan. Stat. Xxx. §§ 16a-1-101 et seq.
Sections
16a-1-301 and 16a-3-207 became effective April 14, 1999; Section
16a-3-308a became effective July 1, 1999
|
High
Loan to Value Consumer Loan (id.§
16a-3-207) and;
|
|
High
APR Consumer Loan (id.§
16a-3-308a)
|
||
|
Kentucky
|
2003
KY H.B. 000 - Xxxx Xxxx Xxxx Xxxx Xxx, Xx. Rev. Stat. §§ 360.100
et seq.
Effective
June 24, 2003
|
High
Cost Home Loan
|
|
Maine
|
Truth
in Lending, Me. Rev. Stat. tit. 9-A, §§ 8-101 et seq.
Effective
September 29, 1995 and as amended from time to time
|
High
Rate High Fee Mortgage
|
|
Standard
& Poor’s High Cost Loan Categorization
|
||
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending Law/Effective Date
|
Category
under Applicable Anti-Predatory Lending Law
|
|
Massachusetts
|
Part
40 and Part 32, 209 C.M.R. §§ 32.00 et seq.
and 209 C.M.R. §§ 40.01 et seq.
Effective
March 22, 2001 and amended from time to time
|
High
Cost Home Loan
|
|
Nevada
|
Assembly
Xxxx No. 284, Nev. Rev. Stat. §§ 598D.010 et seq.
Effective
October 1, 2003
|
Home
Loan
|
|
New
Jersey
|
New
Jersey Home Ownership Security Act of 2002, N.J. Rev. Stat. §§ 46:10B-22
et seq.
Effective
for loans closed on or after November 27, 2003
|
High
Cost Home Loan
|
|
New
Mexico
|
Home
Loan Protection Act, N.M. Rev. Stat. §§ 58-21A-1 et seq.
Effective
as of January 1, 2004; Revised as of February 26, 2004
|
High
Cost Home Loan
|
|
New
York
|
N.Y.
Banking Law Article 6-l
Effective
for applications made on or after April 1, 2003
|
High
Cost Home Loan
|
|
North
Carolina
|
Restrictions
and Limitations on High Cost Home Loans, N.C. Gen. Stat. §§ 24-1.1E
et seq.
Effective
July 1, 2000; amended October 1, 2003 (adding open-end lines of
credit)
|
High
Cost Home Loan
|
|
Ohio
|
H.B.
386 (codified in various sections of the Ohio Code), Ohio Rev.
Code Xxx.
§§ 1349.25 et seq.
Effective
May 24, 2002
|
Covered
Loan
|
|
Oklahoma
|
Consumer
Credit Code (codified in various sections of Title 14A)
Effective
July 1, 2000; amended effective January 1, 2004
|
Subsection
10 Mortgage
|
|
Standard
& Poor’s High Cost Loan Categorization
|
||
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending Law/Effective Date
|
Category
under Applicable Anti-Predatory Lending Law
|
|
South
Carolina
|
South
Carolina High Cost and Consumer Home Loans Act, S.C. Code Xxx.
§§ 37-23-10
et seq.
Effective
for loans taken on or after January 1, 2004
|
High
Cost Home Loan
|
|
West
Virginia
|
West
Virginia Residential Mortgage Lender, Broker and Servicer Act,
W. Va. Code
Xxx. §§ 31-17-1 et seq.
Effective
June 5, 0000
|
Xxxx
Xxxxxxxx Mortgage Loan Act Loan
|
Standard
& Poor’s Covered Loan Categorization
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending Law/Effective Date
|
Category
under Applicable Anti-Predatory Lending Law
|
|
Georgia
(Oct. 1, 2002 - Mar. 6, 2003)
|
Georgia
Fair Lending Act, Ga. Code Xxx. §§ 7-6A-1 et seq.
Effective
October 1, 2002 - March 6, 2003
|
Covered
Loan
|
|
New
Jersey
|
New
Jersey Home Ownership Security Act of 2002, N.J. Rev. Stat. §§ 46:10B-22
et seq.
Effective
November 27, 2003 - July 5, 2004
|
Covered
Home Loan
|
|
Standard
& Poor’s Home Loan Categorization
|
||
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending Law/Effective Date
|
Category
under Applicable Anti-Predatory Lending Law
|
|
Georgia
(Oct. 1, 2002 - Mar. 6, 2003)
|
Georgia
Fair Lending Act, Ga. Code Xxx. §§ 7-6A-1 et seq.
Effective
October 1, 2002 - March 6, 2003
|
Home
Loan
|
|
New
Jersey
|
New
Jersey Home Ownership Security Act of 2002, N.J. Rev. Stat. §§ 46:10B-22
et seq.
Effective
for loans closed on or after November 27, 2003
|
Home
Loan
|
|
New
Mexico
|
Home
Loan Protection Act, N.M. Rev. Stat. §§ 58-21A-1 et seq.
Effective
as of January 1, 2004; Revised as of February 26, 2004
|
Home
Loan
|
|
North
Carolina
|
Restrictions
and Limitations on High Cost Home Loans, N.C. Gen. Stat. §§ 24-1.1E
et seq.
Effective
July 1, 2000; amended October 1, 2003 (adding open-end lines of
credit)
|
Consumer
Home Loan
|
|
South
Carolina
|
South
Carolina High Cost and Consumer Home Loans Act, S.C. Code Xxx.
§§ 37-23-10
et seq.
Effective
for loans taken on or after January 1, 2004
|
Consumer
Home Loan
|
EXHIBIT
L
SERVICING
CRITERIA
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
Assessments
of Compliance and Attestation Reports Servicing Criteria1
|
Reg.
AB Item 1122(d) Servicing Criteria
|
Depositor
|
Sponsor
|
Servicer
|
Trustee
|
Custodian
|
Xxxxx
Fargo2
|
|
(1) General
Servicing Considerations
|
||||||
|
(i) monitoring
performance or other triggers and events of default
|
X
|
X
|
||||
|
(ii) monitoring
performance of vendors of activities outsourced
|
X
|
|||||
|
(iii) maintenance
of back-up servicer for pool assets
|
||||||
|
(iv) fidelity
bond and E&O policies in effect
|
X
|
X
|
||||
|
(2) Cash
Collection and Administration
|
||||||
|
(i) timing
of deposits to custodial account
|
X
|
X
|
||||
|
(ii) wire
transfers to investors by authorized personnel
|
X
|
X
|
||||
|
(iii) advances
or guarantees made, reviewed and approved as required
|
X
|
X
|
||||
|
(iv) accounts
maintained as required
|
X
|
X
|
||||
|
(v) accounts
at federally insured depository institutions
|
X
|
X
|
||||
|
(vi) unissued
checks safeguarded
|
X
|
X
|
||||
|
(vii) monthly
reconciliations of accounts
|
X
|
X
|
||||
|
(3) Investor
Remittances and Reporting
|
||||||
|
(i) investor
reports
|
X
|
X
|
||||
|
(ii) remittances
|
X
|
X
|
||||
|
(iii) proper
posting of distributions
|
X
|
X
|
||||
|
(iv) reconciliation
of remittances and payment statements
|
X
|
X
|
||||
|
(4) Pool
Asset Administration
|
||||||
|
(i) maintenance
of pool collateral
|
X
|
X
|
||||
|
(ii) safeguarding
of pool assets/documents
|
X
|
X
|
||||
|
(iii) additions,
removals and substitutions of pool assets
|
X
|
X
|
X
|
|||
|
(iv) posting
and allocation of pool asset payments to pool assets
|
X
|
|||||
|
(v) reconciliation
of servicer records
|
X
|
|||||
|
(vi) modifications
or other changes to terms of pool assets
|
X
|
|||||
|
(vii) loss
mitigation and recovery actions
|
X
|
|||||
|
(viii)
records regarding collection efforts
|
X
|
|||||
|
(ix) adjustments
to variable interest rates on pool assets
|
X
|
|||||
|
(x) matters
relating to funds held in trust for obligors
|
X
|
|||||
|
(xi) payments
made on behalf of obligors (such as for taxes or
insurance)
|
X
|
|||||
|
(xii) late
payment penalties with respect to payments made on behalf of obligors
|
X
|
|||||
|
(xiii)records
with respect to payments made on behalf of obligors
|
X
|
|||||
|
(xiv) recognition
and recording of delinquencies, charge-offs and uncollectible
accounts
|
X
|
X
|
||||
|
(xv) maintenance
of external credit enhancement or other support
|
X
|
X
|
X
|
1
The
descriptions of the Item 1122(d) servicing criteria use key words and
phrases
and are not verbatim recitations of the servicing criteria. Refer to
Regulation
AB, Item 1122 for a full description of servicing criteria.
2
Xxxxx Fargo in its capacity as Paying Agent, Master Servicer and
Securities Administrator.
EXHIBIT
M
FORM
OF
BACK-UP CERTIFICATION
Re: __________
(the “Trust”)
Mortgage
Pass-Through Certificates, Series 2006-WF1
I,
[identify the certifying individual], certify to Nomura Asset Acceptance
Corporation (the “Depositor”), HSBC Bank USA, National Association (the
“Trustee”) and Xxxxx Fargo Bank, N.A. (the “Master Servicer”), and their
respective officers, directors and affiliates, and with the knowledge and
intent
that they will rely upon this certification, that:
(1) I
have
reviewed the servicer compliance statement of the Servicer provided in
accordance with Item 1123 of Regulation AB (the “Compliance Statement”), the
report on assessment of the Servicer’s compliance with the servicing criteria
set forth in Item 1122(d) of Regulation AB (the “Servicing Criteria”), provided
in accordance with Rules 13a-18 and 15d-18 under Securities Exchange Act
of
1934, as amended (the “Exchange Act”) and Item 1122 of Regulation AB (the
“Servicing Assessment”), the registered public accounting firm’s attestation
report provided in accordance with Rules 13a-18 and 15d-18 under the Exchange
Act and Section 1122(b) of Regulation AB (the “Attestation Report”), and all
servicing reports, officer’s certificates and other information relating to the
servicing of the Mortgage Loans by the Servicer during 200[ ] that were
delivered by the Servicer to the Master Servicer pursuant to the Agreement
(collectively, the “Servicer Servicing Information”);
(2) Based
on
my knowledge, the Servicer Servicing Information, taken as a whole, does
not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in the light of the circumstances
under
which such statements were made, not misleading with respect to the period
of
time covered by the Servicer Servicing Information;
(3) Based
on
my knowledge, all of the Servicer Servicing Information required to be provided
by the Servicer under the Agreement has been provided to the Master
Servicer;
(4) I
am
responsible for reviewing the activities performed by the Servicer as servicer
under the Agreement, and based on my knowledge and the compliance review
conducted in preparing the Compliance Statement and except as disclosed in
the
Compliance Statement, the Servicing Assessment or the Attestation Report,
the
Servicer has fulfilled its obligations under the Agreement in all material
respects; and
(5) The
Compliance Statement required to be delivered by the Servicer pursuant to
the
Agreement, and the Servicing Assessment and Attestation Report required to
be
provided by the Servicer and by any Subservicer or Subcontractor pursuant
to the
Agreement, have been provided to the Master Servicer. Any material instances
of
noncompliance described in such reports have been disclosed to the Master
Servicer. Any material instance of noncompliance with the Servicing Criteria
has
been disclosed in such reports.
Capitalized
terms used and not otherwise defined herein have the meanings assigned thereto
in the Pooling and Servicing Agreement (the “Agreement”), dated as of August 1,
2006, among Nomura Asset Acceptance Corporation, Nomura Credit & Capital,
Inc., Xxxxx Fargo Bank, N.A. and HSBC Bank USA, National
Association
|
Date:
|
||
|
[Signature]
|
||
|
[Title]
|
||
EXHIBIT
N
FORM
10-D, FORM 8-K AND FORM 10-K
REPORTING
RESPONSIBILITY
As
to
each item described below, the entity indicated as the Responsible Party
shall
be primarily responsible for reporting the information to the party identified
as responsible for preparing the Securities Exchange Act Reports pursuant
to
Section 5.12. An asterisk indicates that the Responsible Party is responsible
for aggregating the information it receives from other Responsible
Parties.
Under
Item 1 of Form 10-D: a) items marked “5.07 statement” are required to be
included in the periodic Distribution Date statement under Section 5.07,
provided by the Securities Administrator based on information received from
the
Master Servicer; and b) items marked “Form 10-D report” are required to be in
the Form 10-D report but not the 5.07 statement, provided by the party
indicated. Information under all other Items of Form 10-D is to be included
in
the Form 10-D report.
Additional
Form 10-D Disclosure
|
ADDITIONAL
FORM 10-D DISCLOSURE
|
|
|
Item
on Form 10-D
|
Party
Responsible
|
|
Item
1: Distribution and Pool Performance Information
|
|
|
Information
included in the [Monthly Statement]
|
Servicer
Master
Servicer
Securities
Administrator
|
|
Any
information required by 1121 which is NOT included on the [Monthly
Statement]
|
Depositor
|
|
Item
2: Legal Proceedings
Any
legal proceeding pending against the following entities or their
respective property, that is material to Certificateholders, including
any
proceeding sknown to be contemplated by governmental
authorities:
|
|
|
▪
Issuing Entity (Trust Fund)
|
Trustee,
Master Servicer, Securities Administrator and Depositor
|
|
▪
Sponsor (Seller)
|
Seller
(if a party to the Pooling and Servicing Agreement) or
Depositor
|
|
▪
Depositor
|
Depositor
|
|
▪
Trustee
|
Trustee
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Custodian
|
Custodian
|
|
▪
1110(b) Originator
|
Depositor
|
|
▪
Any 1108(a)(2) Servicer (other than the Master Servicer or Securities
Administrator)
|
Servicer
|
|
▪
Any other party contemplated by 1100(d)(1)
|
Depositor
|
|
Item
3: Sale of Securities and Use of Proceeds
Information
from Item 2(a) of Part II of Form 10-Q:
With
respect to any sale of securities by the sponsor, depositor or
issuing
entity, that are backed by the same asset pool or are otherwise
issued by
the issuing entity, whether or not registered, provide the sales
and use
of proceeds information in Item 701 of Regulation S-K. Pricing
information
can be omitted if securities were not registered.
|
Depositor
|
|
Item
4: Defaults Upon Senior Securities
Information
from Item 3 of Part II of Form 10-Q:
Report
the occurrence of any Event of Default (after expiration of any
grace
period and provision of any required notice)
|
Securities
Administrator
Trustee
|
|
Item
5: Submission of Matters to a Vote of Security
Holders
Information
from Item 4 of Part II of Form 10-Q
|
Securities
Administrator
Trustee
|
|
Item
6: Significant Obligors of Pool Assets
Item
1112(b) - Significant
Obligor Financial Information*
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Item.
|
|
|
Item
7: Significant Enhancement Provider Information
Item
1114(b)(2) - Credit Enhancement Provider Financial
Information*
|
|
|
▪
Determining applicable disclosure threshold
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
Item
1115(b) - Derivative Counterparty Financial
Information*
|
|
|
▪
Determining current maximum probable exposure
|
Depositor
|
|
▪
Determining current significance percentage
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|
|
Item
8: Other Information
Disclose
any information required to be reported on Form 8-K during the
period
covered by the Form 10-D but not reported
|
Any
party responsible for the applicable Form 8-K Disclosure
item
|
|
Item
9: Exhibits
|
|
|
Monthly
Statement to Certificateholders
|
Securities
Administrator
|
|
Exhibits
required by Item 601 of Regulation S-K, such as material
agreements
|
Depositor
|
Additional
Form 10-K Disclosure
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
|
Item
on Form 10-K
|
Party
Responsible
|
|
Item
1B: Unresolved Staff Comments
|
Depositor
|
|
Item
9B: Other Information
Disclose
any information required to be reported on Form 8-K during the
fourth
quarter covered by the Form 10-K but not reported
|
Any
party responsible for disclosure items on Form 8-K
|
|
Item
15: Exhibits, Financial Statement Schedules
|
Securities
Administrator
Depositor
|
|
Reg
AB Item 1112(b): Significant Obligors of Pool
Assets
|
|
|
Significant
Obligor Financial Information*
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Item.
|
|
|
Reg
AB Item 1114(b)(2): Credit Enhancement Provider Financial
Information
|
|
|
▪
Determining applicable disclosure threshold
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|
|
Reg
AB Item 1115(b): Derivative Counterparty Financial
Information
|
|
|
▪
Determining current maximum probable exposure
|
Depositor
|
|
▪
Determining current significance percentage
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|
|
Reg
AB Item 1117: Legal Proceedings
Any
legal proceeding pending against the following entities or their
respective property, that is material to Certificateholders, including
any
proceeding sknown to be contemplated by governmental
authorities:
|
|
|
▪
Issuing Entity (Trust Fund)
|
Trustee,
Master Servicer, Securities Administrator and Depositor
|
|
▪
Sponsor (Seller)
|
Seller
(if a party to the Pooling and Servicing Agreement) or
Depositor
|
|
▪
Depositor
|
Depositor
|
|
▪
Trustee
|
Trustee
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Custodian
|
Custodian
|
|
▪
1110(b) Originator
|
Depositor
|
|
▪
Any 1108(a)(2) Servicer (other than the Master Servicer or Securities
Administrator)
|
Servicer
|
|
▪
Any other party contemplated by 1100(d)(1)
|
Depositor
|
|
Reg
AB Item 1119: Affiliations and Relationships
|
|
|
Whether
(a) the Sponsor (Seller), Depositor or Issuing Entity is an affiliate
of
the following parties, and (b) to the extent known and material,
any of
the following parties are affiliated with one another:
|
Depositor
as to (a)
Sponsor/Seller
as to (a)
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Trustee
|
Trustee
|
|
▪
Any other 1108(a)(3) servicer
|
Servicer
|
|
▪
Any 1110 Originator
|
Depositor/Sponsor
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor/Sponsor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor/Sponsor
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor/Sponsor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor/Sponsor
|
|
Whether
there are any “outside the ordinary course business arrangements” other
than would be obtained in an arm’s length transaction between (a) the
Sponsor (Seller), Depositor or Issuing Entity on the one hand,
and (b) any
of the following parties (or their affiliates) on the other hand,
that
exist currently or within the past two years and that are material
to a
Certificateholder’s understanding of the Certificates:
|
Depositor
as to (a)
Sponsor/Seller
as to (a)
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Trustee
|
Depositor/Sponsor
|
|
▪
Any other 1108(a)(3) servicer
|
Servicer
|
|
▪
Any 1110 Originator
|
Depositor/Sponsor
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor/Sponsor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor/Sponsor
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor/Sponsor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor/Sponsor
|
|
Whether
there are any specific relationships involving the transaction
or the pool
assets between (a) the Sponsor (Seller), Depositor or Issuing Entity
on
the one hand, and (b) any of the following parties (or their affiliates)
on the other hand, that exist currently or within the past two
years and
that are material:
|
Depositor
as to (a)
Sponsor/Seller
as to (a)
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Trustee
|
Depositor/Sponsor
|
|
▪
Any other 1108(a)(3) servicer
|
Servicer
|
|
▪
Any 1110 Originator
|
Depositor/Sponsor
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor/Sponsor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor/Sponsor
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor/Sponsor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor/Sponsor
|
Form
8-K
Disclosure Information
|
FORM
8-K DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Party
Responsible
|
|
Item
1.01- Entry into a Material Definitive Agreement
Disclosure
is required regarding entry into or amendment of any definitive
agreement
that is material to the securitization, even if depositor is not
a party.
Examples:
servicing agreement, custodial agreement.
Note:
disclosure not required as to definitive agreements that are fully
disclosed in the prospectus
|
All
parties
|
|
Item
1.02- Termination of a Material Definitive Agreement
Disclosure
is required regarding termination of any definitive agreement that
is
material to the securitization (other than expiration in accordance
with
its terms), even if depositor is not a party.
Examples:
servicing agreement, custodial agreement.
|
All
parties
|
|
Item
1.03- Bankruptcy or Receivership
Disclosure
is required regarding the bankruptcy or receivership, with respect
to any
of the following:
|
|
|
▪
Sponsor (Seller)
|
Depositor/Sponsor
(Seller)
|
|
▪
Depositor
|
Depositor
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Affiliated Servicer
|
Servicer
|
|
▪
Other Servicer servicing 20% or more of the pool assets at the
time of the
report
|
Servicer
|
|
▪
Other material servicers
|
Servicer
|
|
▪
Trustee
|
Trustee
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Significant Obligor
|
Depositor
|
|
▪
Credit Enhancer (10% or more)
|
Depositor
|
|
▪
Derivative Counterparty
|
Depositor
|
|
▪
Custodian
|
Custodian
|
|
Item
2.04- Triggering Events that Accelerate or Increase a Direct Financial
Obligation or an Obligation under an Off-Balance Sheet
Arrangement
Includes
an early amortization, performance trigger or other event, including
event
of default, that would materially alter the payment priority/distribution
of cash flows/amortization schedule.
Disclosure
will be made of events other than waterfall triggers which are
disclosed
in the monthly statements to the certificateholders.
|
Depositor
Master
Servicer
Securities
Administrator
|
|
Item
3.03- Material Modification to Rights of Security
Holders
Disclosure
is required of any material modification to documents defining
the rights
of Certificateholders, including the Pooling and Servicing
Agreement.
|
Securities
Administrator
Trustee
Depositor
|
|
Item
5.03- Amendments of Articles of Incorporation or Bylaws; Change
of Fiscal
Year
Disclosure
is required of any amendment “to the governing documents of the issuing
entity”.
|
Depositor
|
|
Item
6.01- ABS Informational and Computational
Material
|
Depositor
|
|
Item
6.02- Change of Servicer or Securities Administrator
Requires
disclosure of any removal, replacement, substitution or addition
of any
master servicer, affiliated servicer, other servicer servicing
10% or more
of pool assets at time of report, other material servicers or
trustee.
|
Master
Servicer/Securities Administrator/Depositor/
Servicer/Trustee
|
|
Reg
AB disclosure about any new servicer or master servicer is also
required.
|
Servicer/Master
Servicer/Depositor
|
|
Reg
AB disclosure about any new Trustee is also required.
|
Trustee
|
|
Item
6.03- Change in Credit Enhancement or External
Support
Covers
termination of any enhancement in manner other than by its terms,
the
addition of an enhancement, or a material change in the enhancement
provided. Applies to external credit enhancements as well as derivatives.
|
Depositor/Securities
Administrator/Trustee
|
|
Reg
AB disclosure about any new enhancement provider is also
required.
|
Depositor
|
|
Item
6.04- Failure to Make a Required Distribution
|
Securities
Administrator
Trustee
|
|
Item
6.05- Securities Act Updating Disclosure
If
any material pool characteristic differs by 5% or more at the time
of
issuance of the securities from the description in the final prospectus,
provide updated Reg AB disclosure about the actual asset
pool.
|
Depositor
|
|
If
there are any new servicers or originators required to be disclosed
under
Regulation AB as a result of the foregoing, provide the information
called
for in Items 1108 and 1110 respectively.
|
Depositor
|
|
Item
7.01- Reg FD Disclosure
|
All
parties
|
|
Item
8.01- Other Events
Any
event, with respect to which information is not otherwise called
for in
Form 8-K, that the registrant deems of importance to
certificateholders.
|
Depositor
|
|
Item
9.01- Financial Statements and Exhibits
|
Responsible
party for reporting/disclosing the financial statement or
exhibit
|
EXHIBIT
O
ASSIGNMENT,
ASSUMPTION AND RECOGNITION AGREEMENT
This
Assignment, Assumption and Recognition Agreement (this “AAR Agreement”) is made
and entered into as of August 30, 2006 (the “Closing Date”), among Nomura Credit
& Capital, Inc., having an address at 2 World Financial Center, Building
B,
21st Floor, New York, New York 10281 (the “Assignor”), Nomura Asset Acceptance
Corporation, having an address at 2 World Financial Center, Building B,
21st
Floor, New York, New York 10281 (the “Assignee”) and Xxxxx Fargo Bank, N.A.,
having an address at 0 Xxxx Xxxxxx, Xxx Xxxxxx, Xxxx 00000-0000 (the “Servicer”
or the “Company”).
In
consideration of the mutual promises contained herein the parties hereto
agree
that the residential mortgage loans identified on the schedule annexed
hereto as
Attachment 1
(the
“Assigned Loans”), which are now serviced by the Servicer on behalf of the
Assignor and its successors and assigns pursuant to the Seller’s Warranties and
Servicing Agreement (WFHM 2006-W32), dated as of May 1, 2006, between the
Assignor and the Servicer (the “Servicing Agreement”) and attached hereto as
Attachment 2,
shall
be sold by the Assignor to the Assignee pursuant to the Mortgage Loan Purchase
Agreement, dated as of August 1, 2006 (the “MLPA”), between the Assignor and the
Assignee and subject to the terms of this AAR Agreement. The Assignee intends
to
transfer all right, title and interest in and to the Assigned Loans and
the
Servicing Agreement to HSBC Bank USA, National Association, as trustee
(the
“Trustee”) for the holders of Nomura Asset Acceptance Corporation, Alternative
Loan Trust, Series 2006-WF1 Mortgage Pass-Through Certificates (the
“Certificateholders”) pursuant to the Pooling and Servicing Agreement, dated as
of August 1, 2006 (the “Pooling and Servicing Agreement”) among the Assignor, as
sponsor, the Assignee, as depositor, the Trustee and Xxxxx Fargo Bank,
N.A., as
master servicer (the “Master Servicer”) and securities administrator (the
“Securities Administrator”). Capitalized terms used herein but not defined shall
have the meanings ascribed to them in the Servicing Agreement.
Assignment
and Assumption
1. Assignor
hereby grants, transfers and assigns to Assignee all of the right, title
and
interest of Assignor in, to and under the Servicing Agreement as it relates
to
the Assigned Loans. Assignor specifically reserves and does not assign
to
Assignee any right, title and interest in, to or under the Servicing Agreement,
as it relates to any mortgage loans other than the Assigned Loans. The
Assignor
reserves the right to enforce the representations and warranties,
indemnification and other remedies contained in Sections 3.01, 3.02 and
3.03 of
the Servicing Agreement against the Servicer for any events or circumstances
occurring prior to the Closing Date. Notwithstanding anything to the contrary
contained herein, the Assignor specifically reserves and does not assign
to the
Assignee the representations and warranties contained in Sections 3.01
and 3.02
of the Servicing Agreement or the right to enforce the representations
and
warranties against the Company, including, without limitation, the rights
set
forth in Section 3.03 of the Servicing Agreement.
Representations,
Warranties and Covenants
2. Assignor
warrants and represents to Assignee and Servicer as of the Closing
Date:
(a) Attached
hereto as Attachment 2
is a
true and accurate copy of the Servicing Agreement, which Servicing Agreement
is
in full force and effect as of the date hereof and the provisions of which,
except as set forth herein, have not been waived, amended or modified in
any
respect, nor has any notice of termination been given thereunder;
(b) Assignor
is the lawful owner of the Assigned Loans with full right to transfer the
Assigned Loans and any and all of its interests and rights under the Servicing
Agreement as they relate to the Assigned Loans, free and clear of any and
all
claims and encumbrances; and upon the transfer of the Assigned Loans to
Assignee
under the MLPA, Assignee shall have good title to each and every Assigned
Loan,
as well as any and all of Assignor’s interests and rights under the Servicing
Agreement as they relate to the Assigned Loans to the extent set forth
herein,
free and clear of any and all liens, claims and encumbrances;
(c) Assignor
is duly organized, validly existing and in good standing under the laws
of the
jurisdiction of its incorporation, and has all requisite power and authority
to
sell, transfer and assign the Assigned Loans;
(d) Assignor
has full corporate power and authority to execute, deliver and perform
its
obligations under this AAR Agreement, and to consummate the transactions
set
forth herein. The consummation of the transactions contemplated by this
AAR
Agreement is in the ordinary course of Assignor’s business and will not conflict
with, or result in a breach of, any of the terms, conditions or provisions
of
Assignor’s certificate of incorporation or bylaws or any legal restriction, or
any material agreement or instrument to which Assignor is now a party or
by
which it is bound, or result in the violation of any law, rule, regulation,
order, judgment or decree to which Assignor or its property is subject.
The
execution, delivery and performance by Assignor of this AAR Agreement and
the
consummation by it of the transactions contemplated hereby, have been duly
authorized by all necessary corporate action on the part of Assignor. This
AAR
Agreement has been duly executed and delivered by Assignor and, upon the
due
authorization, execution and delivery by Assignee and Servicer, will constitute
the valid and legally binding obligation of Assignor enforceable against
Assignor in accordance with its terms except as enforceability may be limited
by
bankruptcy, reorganization, insolvency, moratorium or other similar laws
now or
hereafter in effect relating to creditors’ rights generally, and by general
principles of equity regardless of whether enforceability is considered
in a
proceeding in equity or at law; and
(e) No
consent, approval, order or authorization of, or declaration, filing or
registration with, any governmental entity is required to be obtained or
made by
Assignor in connection with the execution, delivery or performance by Assignor
of this AAR Agreement, or the consummation by it of the transactions
contemplated hereby.
3. Assignee
warrants and represents to, and covenants with, Assignor and Servicer as
of the
Closing Date:
(a) Assignee
is duly organized, validly existing and in good standing under the laws
of the
jurisdiction of its incorporation and has all requisite power and authority
to
acquire, own and purchase the Assigned Loans;
(b) Assignee
has full corporate power and authority to execute, deliver and perform
its
obligations under this AAR Agreement, and to consummate the transactions
set
forth herein. The consummation of the transactions contemplated by this
AAR
Agreement is in the ordinary course of Assignee’s business and will not conflict
with, or result in a breach of, any of the terms, conditions or provisions
of
Assignee’s certificate of incorporation or by-laws or any legal restriction, or
any material agreement or instrument to which Assignee is now a party or
by
which it is bound, or result in the violation of any law, rule, regulation,
order, judgment or decree to which Assignee or its property is subject.
The
execution, delivery and performance by Assignee of this AAR Agreement and
the
consummation by it of the transactions contemplated hereby, have been duly
authorized by all necessary corporate action on the part of Assignee. This
AAR
Agreement has been duly executed and delivered by Assignee and, upon the
due
authorization, execution and delivery by Assignor and the Servicer, will
constitute the valid and legally binding obligation of Assignee enforceable
against Assignee in accordance with its terms except as enforceability
may be
limited by bankruptcy, reorganization, insolvency, moratorium or other
similar
laws now or hereafter in effect relating to creditors’ rights generally, and by
general principles of equity regardless of whether enforceability is considered
in a proceeding in equity or at law;
(c) No
consent, approval, order or authorization of, or declaration, filing or
registration with, any governmental entity is required to be obtained or
made by
Assignee in connection with the execution, delivery or performance by Assignee
of this AAR Agreement, or the consummation by it of the transactions
contemplated hereby; and
(d) Assignee
agrees to be bound by all of the terms, covenants and conditions of the
Servicing Agreement, as modified by this AAR Agreement, with respect to
the
Assigned Loans.
4. The
Servicer warrants and represents to, and covenants with, Assignor and Assignee
as of the Closing Date:
(a) Attached
hereto as Attachment 2
is a
true and accurate copy of the Servicing Agreement, which Servicing Agreement
is
in full force and effect as of the Closing Date and the provisions of which,
except as set forth herein, have not been waived, amended or modified in
any
respect, nor has any notice of termination been given thereunder;
(b) The
Servicer is duly organized, validly existing and in good standing under
the laws
of the United States of America, and has all requisite power and authority
to
service the Assigned Loans and otherwise to perform its obligations under
the
Servicing Agreement, as modified by this AAR Agreement;
(c) The
Servicer has full power and authority to execute, deliver and perform its
obligations under this AAR Agreement, and to consummate the transactions
set
forth herein. The consummation of the transactions contemplated by this
AAR
Agreement is in the ordinary course of the Servicer’s business and will not
conflict with, or result in a breach of, any of the terms, conditions or
provisions of the Servicer’s charter or by-laws or any legal restriction, or any
material agreement or instrument to which the Servicer is now a party or
by
which it is bound, or result in the violation of any law, rule, regulation,
order, judgment or decree to which the Servicer or its property is subject.
The
execution, delivery and performance by the Servicer of this AAR Agreement
and
the consummation by it of the transactions contemplated hereby, have been
duly
authorized by all necessary action on the part of the Servicer. This AAR
Agreement has been duly executed and delivered by the Servicer, and, upon
the
due, authorization, execution and delivery by Assignor and Assignee, will
constitute the valid and legally binding obligation of the Servicer, enforceable
against the Servicer in accordance with its terms except as enforceability
may
be limited by insolvency, liquidation, conservatorship or other similar
laws
administered by the Federal Deposit Insurance Corporation affecting the
enforcement of contract obligations of insured banks, and by general principals
of equity regardless of whether enforceability is considered in a proceeding
in
equity or at law;;
(d) No
consent, approval, order or authorization of, or declaration, filing or
registration with, any governmental entity is required to be obtained or
made by
the Servicer in connection with the execution, delivery or performance
by the
Servicer of this AAR Agreement, or the consummation by it of the transactions
contemplated hereby; and
(e) The
Servicer shall service the Assigned Loans in accordance with the terms
and
provisions of the Servicing Agreement, as modified by this AAR Agreement.
The
Servicer shall establish a Custodial Account and an Escrow Account under
the
Servicing Agreement with respect to the Assigned Loans separate from the
Custodial Account and Escrow Account previously established under the Servicing
Agreement in favor of Assignor, and shall remit collections received on
the
Assigned Loans to the appropriate account as required by the Servicing
Agreement. The Custodial Account and the Escrow Account each shall be entitled
“Xxxxx Fargo Bank, N.A., as Servicer for HSBC Bank USA, National Association
as
Trustee, in trust for the registered holders of Nomura Asset Acceptance
Corporation, Alternative Loan Trust, Series 2006-WF1” and shall be established
and maintained with a Qualified Depository. Any funds held in the Custodial
Account are and shall remain uninvested.
Recognition
of Assignee.
5. From
and
after the date hereof, Servicer shall recognize Assignee as owner of the
Assigned Loans, and acknowledges that the Assigned Loans will be part of
a
REMIC, and will service the Assigned Loans in accordance with the Servicing
Agreement, as modified by this AAR Agreement, but in no event in a manner
that
would (i) cause any REMIC to fail to qualify as a REMIC or (ii) result
in the
imposition of a tax upon any REMIC (including but not limited to the tax
on
prohibited transactions as defined in Section 860F(a)(2) of the Internal
Revenue
Code of 1986 (the “Code”) and the tax on contributions to a REMIC set forth in
Section 860G(d) of the Code). It is the intention of Assignor, Servicer
and
Assignee that this AAR Agreement shall be binding upon and for the benefit
of
the respective successors and assigns of the parties hereto. Neither Servicer
nor Assignor shall amend or agree to amend, modify, waive, or otherwise
alter
any of the terms or provisions of the Servicing Agreement which amendment,
modification, waiver or other alteration would in any way affect the Assigned
Loans without the prior written consent of the Master Servicer and Trustee.
6. The
Servicer hereby acknowledges that the Trustee, acting pursuant to the terms
of
the Pooling and Servicing Agreement, has the right to enforce all obligations
of
the Servicer, as they relate to the Assigned Loans, under the Servicing
Agreement. Such right will include, without limitation, the right to
indemnification, the right to terminate the Servicer under the Servicing
Agreement upon the occurrence of an Event of Default thereunder and the
right to
exercise certain rights of consent and approval relating to actions taken
by the
Servicer under the Servicing Agreement. In addition, any notice required
to be
given by the “Purchaser” pursuant to Section 10.01 of the Servicing Agreement
shall be given by the Master Servicer or the Trustee. The Servicer further
acknowledges that pursuant to the terms of the Pooling and Servicing Agreement,
the Master Servicer is required to monitor the performance of the Servicer
under
the Servicing Agreement, except with respect to Section 4.23 of the Servicing
Agreement. The Master Servicer shall have the right to receive all remittances
required to be made by the Servicer under the Servicing Agreement, the
right to
receive all monthly reports and other data required to be delivered by
the
Servicer under the Servicing Agreement, the right to examine the books
and
records of the Servicer under the Servicing Agreement and the right to
indemnification under the Servicing Agreement. In addition, if the Servicer
shall fail to remit any payment pursuant to the Servicing Agreement, the
Master
Servicer shall notify the Trustee and the Servicer of such failure as set
forth
in Section 10.01 of the Servicing Agreement. The Servicer hereby agrees
to make
all remittances required under the Servicing Agreement to the Master Servicer
for the benefit of the Certificateholders in accordance with the following
wire
instructions:
Xxxxx
Fargo Bank, N.A.
ABA:
000000000
Acct
#:
0000000000
Acct
Name: SAS Clearing
For
Further Credit to: NAAC 2006-WF1 Account #00000000
7. Pursuant
to Section 9.01(a) of the Servicing Agreement, the Servicer hereby makes
the
representations and warranties set forth in Section 3.01 of the Servicing
Agreement as of the Closing Date.
8. In
the
event that the Assignor substitutes any Deleted Mortgage Loans with any
Qualified Substitute Mortgage Loans in the manner set forth in the Pooling
and
Servicing Agreement, the Servicer shall determine the amount (the “Substitution
Shortfall Amount”), if any, by which the aggregate purchase price of all such
Deleted Mortgage Loans exceeds the aggregate of, as to each such Qualified
Substitute Mortgage Loan, (x) the scheduled principal balance thereof as
of the
date of substitution, together with one month’s interest on such scheduled
principal balance at the applicable Mortgage Interest Rate (minus the
Administration Fee Rate (as defined below)), plus (y) all outstanding Monthly
Advances and Servicing Advances (including nonrecoverable Monthly Advances
and
nonrecoverable Servicing Advances) related thereto; provided, however,
if the
Servicer repurchases the Deleted Mortgage Loan, the amounts set forth in
clause
(y) shall not be included in the calculation of the Substitution Shortfall
Amount. On the date of such substitution, the Assignor will deliver or
cause to
be delivered to the Servicer for deposit in the Custodial Account an amount
equal to the Substitution Shortfall Amount, if any, and the Servicer shall
certify in writing or electronic mail to the Trustee that it has received
such
Substitution Shortfall Amount from the Assignor. The Servicer shall remit
such
Substitution Shortfall Amount to the Securities Administrator on the next
succeeding Remittance Date. As used in this Section, the “Administration Fee
Rate” means the sum of the rates used to calculate the fees payable to the
Servicer, the Master Servicer and the credit risk manager under the Pooling
and
Servicing Agreement.
Modification
of the Servicing Agreement
9. The
Servicer and Assignor hereby amend the Servicing Agreement with respect
to the
Assigned Loans as follows:
(a) The
following definitions are added to Article I of the Servicing Agreement
in
proper alphabetical order:
“Authorized
Servicer Representative”:
Any
officer of the Servicer involved in, or responsible for, the administration
and
servicing of the Mortgage Loans whose name and facsimile signature appear
on a
list of servicing officers furnished to the Trustee and the Master Servicer
by
the Servicer on the closing date of any securitization transaction, as
such list
may from time to time be amended.
“Covered
Mortgage Loan”:
Each
Mortgage Loan covered by the PMI Policy, as identified on Schedule 2 of
the
Pooling and Servicing Agreement.
“Distribution
Date”:
The
25th day of any month, or if such 25th day is not a Business Day, the Business
Day immediately following such 25th day, commencing in September
2006.
“PMI
Insurer”:
PMI
Mortgage Insurance Company, an Arizona corporation, or its successor in
interest.
“Securities
Administrator”:
Xxxxx
Fargo Bank, N.A. or any successor thereto.
“Trust”:
Alternative Loan Trust, Series 2006-WF1.
“Trustee”:
HSBC
Bank USA, National Association a national banking association, or its successor
in interest, or any successor trustee.
(b) The
definition of Business Day in Article I of the Servicing Agreement is modified
by replacing clause (ii) with the following:
“(ii)
a
day on which banking institutions in the State of New York, the State of
Maryland, the State of Iowa, the State of California, the State of Minnesota,
the State of South Carolina and the State in which any Corporate Trust
Office of
the Trustee is located are authorized or obligated by law or executive
order to
be closed.”
(c) The
definition of “Depositor” in Article I of the Servicing Agreement is modified by
replacing such definition with the following:
“Depositor”:
Nomura
Asset Acceptance Corporation”
(d) The
definition of “Master Servicer” in Article I of the Servicing Agreement is
modified by replacing such definition with the following:
“Master
Servicer”:
Xxxxx
Fargo Bank, N.A. or any successor thereto.”
(e) The
definition of “Officer’s Certificate” in Article I of this Agreement is modified
by adding “(i)” at the beginning thereof and the following after the word
“Agreement”:
“,
or
(ii) if provided for in this Agreement, signed by an Authorized Servicer
Representative, as the case may be, and delivered to the Depositor, the
Sponsor,
the Master Servicer, the Securities Administrator and/or the Trustee, as
the
case may be, as required by this Agreement.”
(f) The
definition of “Opinion of Counsel” in Article I of the Servicing Agreement is
modified by replacing such definition with the following:
“Opinion
of Counsel”:
A
written opinion of counsel, who may, without limitation, be salaried counsel
for
the Depositor, the Company, the Securities Administrator or the Master
Servicer,
acceptable to the Trustee, except that any opinion of counsel relating
to (a)
the qualification of any REMIC as a REMIC or (b) compliance with the REMIC
Provisions must be an opinion of independent counsel; provided, however,
any
Opinion of Counsel provided by the Company pursuant to clause (b) above
may be
provided by internal counsel; provided that the delivery of such Opinion
of
Counsel shall not release the Company from any of its obligations hereunder
and
the Company shall be responsible for such contemplated actions or inaction,
as
the case may be, to the extent it conflicts with the terms of this
Agreement.”
(g) The
definition of “PMI Policy” in Article I of the Servicing Agreement is modified
by replacing such definition with the following:
“PMI
Policy”:
The
primary mortgage insurance policy (policy reference number: # _____________)
with respect to the related PMI Mortgage Loans, including all endorsements
thereto dated the Closing Date, issued by the PMI Insurer.
(h) The
definition of “Rating Agency” in Article I of the Servicing Agreement is
modified by replacing such definition with the following:
“Rating
Agencies”:
Xxxxx’x Investors Services, Inc. and Standard & Poor’s Ratings Services, or
their successors. If such agencies or their successors are no longer in
existence, “Rating Agencies” shall be such nationally recognized statistical
rating agencies, or other comparable Persons, designated by the Depositor,
notice of which designation shall be given to the Trustee.”
(i) The
definition of “Qualified Depository” in Article I of the Servicing Agreement is
hereby amended by deleting the words “Group or” following the words “Standard
& Poor’s Ratings” and replacing it with “Services and”.
(j) The
following language is added to the end of the definition of “REMIC Provisions”
in Article I of the Servicing Agreement:
“as
well
as provisions of applicable state laws”
(k) The
definition of “Servicer” in Article I of the Servicing Agreement is modified by
replacing such definition with the following:
“Servicer”:
As
defined in Section 9.01(d)(iii).
(l) The
definition of “Servicing Advances” in Article I of the Servicing Agreement is
hereby amended by adding the following language after the phrase “including
reasonable attorney's fees and disbursements”: “but excluding any fees
associated with the registration of any Mortgage Loan on the MERS System
as
required under Section 4.01”.
(m) The
definition of “Servicing Advances” in Article I of the Servicing Agreement is
further amended by adding the following language at the end thereof: “and (f)
payment of taxes.”
(n) Section
4.05 of the Servicing Agreement is modified by deleting the word “and” at the
end of clause (viii), deleting the “.” at the end of clause (ix) and adding “;”
and adding the following clauses: “(x) to reimburse itself for expenses incurred
and reimbursable to it pursuant to the fees paid to MERS under Section
4.01; and
(xi) to reimburse itself for any Monthly Advance or Servicing Advance previously
made by it which the Company has determined to be a nonrecoverable Monthly
Advance or a nonrecoverable Servicing Advance, as evidenced by the delivery
to
the Master Servicer of a certificate signed by two officers of the
Company”.
(o) Section
4.15 of the Servicing Agreement is modified by adding the following new
paragraph at the end thereof:
“Notwithstanding
anything to the contrary elsewhere in this Agreement, the Servicer shall
not
agree to any modification or assumption of a Covered Mortgage Loan or take
any
other action with respect to a Covered Mortgage Loan that could result
in denial
of coverage under the PMI Policy. The Servicer shall, on behalf of the
Trustee,
prepare and file on a timely basis with the PMI Insurer, with a copy to
the
Trustee and the Securities Administrator, all claims which may be made
under the
PMI Policy with respect to the Covered Mortgage Loans. Consistent with
all
rights and obligations hereunder, the Servicer shall take all actions required
under the PMI Policy as a condition to the payment of any such claim. Any
amount
received from the PMI Insurer with respect to any such Covered Mortgage
Loan
shall be
deposited by the Servicer into the Escrow Account in accordance with Section
4.08.”
(p) Section
4.16 of the Servicing Agreement is modified by deleting the “.” from the first
sentence in the second paragraph and adding the following: “in a manner which
does not cause such REO Property to fail to qualify as “foreclosure property”
within the meaning of Section 860G(a)(8) of the Code or result in the receipt
by
any Trust REMIC created hereunder of any “income from non-permitted assets”
within the meaning of Section 860F(a)(2)(B) of the Code, or any “net income from
foreclosure property” which is subject to taxation under the REMIC
Provisions.”
(q) Section
4.16 of the Servicing Agreement is further modified by deleting the first
sentence from the third paragraph and replacing it with the following:
“The
Company, shall either sell any REO Property by the close of the third calendar
year following the calendar year in which the Trust acquires ownership
of such
REO Property for purposes of Section 860(a)(8) of the Code or request from
the
Internal Revenue Service, no later than 60 days before the day on which
the
three-year grace period would otherwise expire an extension of the three-year
grace period, unless the Company had delivered to the Trustee an Opinion
of
Counsel, addressed to the Trustee and the Depositor, to the effect that
the
holding by the Trust of such REO Property subsequent to three years after
its
acquisition will not result in the imposition on any Trust REMIC created
hereunder of taxes on “prohibited transactions” thereof, as defined in Section
860F of the Code, or cause any Trust REMIC hereunder to fail to qualify
as a
REMIC under Federal law at any time that any Certificates issued by the
Trust
are outstanding.”
(r) Section
4.17 of the Servicing Agreement is modified by deleting the words “on or before
the Remittance Date” from the first sentence therein.
(s) The
second paragraph of Section 5.01 of the Servicing Agreement is modified
by
deleting from the first sentence therein the words “second (2nd)
Business Day following the” and by deleting the phrase “second (2nd)”
from
the second sentence therein.
(t) Section
5.02 of the Servicing Agreement is deleted in its entirety and replaced
with the
following:
“No
later
than the tenth (10th)
calendar day (or if such tenth (10th)
day is
not a Business Day, the first Business Day immediately preceding such tenth
(10th)
day) of
each month, Company shall furnish to the Master Servicer a computer tape
or data
file containing the data specified in Exhibit I, which data shall reflect
information from the Due Period immediately preceding the Remittance Date
and
such other information with respect to the Mortgage Loans as the Master
Servicer
may reasonably require to allocate remittances made pursuant to this Agreement
and provide appropriate statements with respect to such
remittances.”
(u) Section
5.03 of the Servicing Agreement is modified by deleting the words “that if
requested by a Rating Agency” from the first sentence of clause (ii)
therein.
(v) The
first
paragraph of Section 6.02 of the Servicing Agreement is modified by deleting
the
words “and may request the release of any Mortgage Loan Documents” and adding
the words “and may request that the Purchaser or its designee release the
related Mortgage Loan Documents” in the last line of such
paragraph.
(w) Section
6.04 of the Servicing Agreement is modified by deleting the words “the
Purchaser, any Master Servicer and any Depositor” and “the Purchaser, such
Master Servicer and such Depositor” and replacing such with “the Master
Servicer”.
(x) Section
6.05 of the Servicing Agreement is deleted in its entirety and replaced
with
“Reserved”.
(y) Section
6.06 of the Servicing Agreement is modified by deleting the words “the
Purchaser, any Master Servicer and any Depositor” and “the Purchaser, such
Master Servicer and such Depositor” and replacing such with “the Master
Servicer,”.
(z) Section
6.07 of the Servicing Agreement is modified by adding the language “, Master
Servicer,” after the phrase “(or such designee)” in clause (iii) therein.
(aa) Section
6.09 of the Servicing Agreement is modified by adding the following paragraph
immediately following the first paragraph of Section 6.09:
“The
Company shall not permit the creation of any “interests” (within the meaning of
Section 860G of the Code) in any REMIC. The Company shall not enter into
any
arrangement by which a REMIC will receive a fee or other compensation for
services nor permit a REMIC to receive any income from assets other than
“qualified mortgages” as defined in Section 860G(a)(3) of the Code or “permitted
investments” as defined in Section 860G(a)(5) of the Code.”
(bb) Section
8.01 of the Servicing Agreement is deleted in its entirety and replaced
with the
following:
“The
Company shall indemnify the Purchaser and Master Servicer and hold them
harmless
against any and all claims, losses, damages, penalties, fines, forfeitures,
reasonable and necessary legal fees and related costs, judgments, and any
other
costs, fees and expenses that the Purchaser or Master Servicer may sustain
in
any way related to the failure of the Company to perform its duties and
service
the Mortgage Loans in strict compliance with the terms of this Agreement.
The
Company immediately shall notify the Purchaser and Master Servicer if a
claim is
made by a third party with respect to this Agreement or the Mortgage Loans,
assume (with prior written consent of the Purchaser or Master Servicer,
respectively) the defense of any such claim and pay all expenses in connection
therewith, including counsel fees, and promptly pay, discharge and satisfy
and
judgment or decree which may be entered against it or the Purchaser or
Master
Servicer in respect of such claim. The Company shall follow any written
instructions received from the Purchaser or Master Servicer in connection
with
such claim. The Purchaser or Master Servicer promptly shall reimburse the
Company for all amounts advanced by it pursuant to the preceding sentence
except
when the claim is in any way related to the Company’s indemnification pursuant
to Section 3.03, or the failure of the Company to service and administer
the
Mortgage Loans in strict compliance with the terms of this
Agreement.”
(cc) Section
9.01(d) of the Servicing Agreement is modified by deleting phrase “(i), (ii),
(iii) and (vii)” in the first paragraph thereof in its entirety and replacing it
with the phrase “(i), (ii), (iii), (vii) and (viii)”.
(dd) Section
9.01(d)(vi)(A) of the Servicing Agreement is modified by deleting the phrase
“The Company shall be deemed to represent” in the first line there thereof in
its entirety and replacing it with the phrase “The Company hereby
represents”.
(ee) Section
9.01(d)(viii) of the Servicing Agreement is modified adding the following
language at the end thereof: “as may reasonably requested by the Purchaser, any
Master Servicer, or any Depositor.”
(ff) Section
9.01(e)(iv) of the Servicing Agreement is modified adding the following
language
at the end thereof: “or Sections 4.25, 6.04, 6.06, 6.07, 9.01(d) or (f) or
12.14.”
(gg) Section
9.01 of the Servicing Agreement is modified by deleting the phrase “Section
9.01(d)” in the first sentence of the third paragraph thereof in its entirety
and replacing it with the phrase “Sections 4.25, 6.04, 6.06, 6.07, 9.01(d), (e)
and (f) and 12.14.”
(hh) Section
10.01 of the Servicing Agreement is modified by adding the language “(not
including Sections 6.04 or 6.06 of this Agreement)” after the phrase “set forth
in this Agreement” in clause (ii) therein, and by replacing “thirty (30)” with
“fourteen (14)” in clause (x) therein.
(ii) Section
11.02 of the Servicing Agreement is hereby deleted in its entirety.
(jj) Exhibit
I
of the Servicing Agreement is modified to include the information set forth
on
Attachment 3
hereto
or in such other format mutually agreed upon by the Company and the Master
Servicer.
(kk) Exhibit
I
of the Servicing Agreement is further modified by deleting the phrase “Form of
Remittance Advice” in its entirety and replacing it with the phrase “Form of
Remittance Report”.
(ll) Exhibit
K
of the Servicing Agreement is hereby deleted in its entirety and replaced
with
Attachment 4
hereto.
Miscellaneous
10. All
demands, notices and communications related to the Assigned Loans, the
Servicing
Agreement and this AAR Agreement shall be in writing or electronic mail
and
shall be deemed to have been duly given if personally delivered at or mailed
by
registered mail, postage prepaid, as follows:
(a)
In
the
case of Assignor,
Nomura
Credit & Capital, Inc.
2
World
Financial Xxxxxx
Xxxxxxxx
X, 00xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Legal Assistant
(b)
In
the
case of Assignee,
Nomura
Asset Acceptance Corporation
2
World
Financial Xxxxxx
Xxxxxxxx
X, 00xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Legal Assistant
(c)
In
the
case of Master Servicer,
Xxxxx
Fargo Bank, N.A.
0000
Xxx
Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
Attention:
Client Manager - NAAC 2006-WF1
Telecopier:
(000) 000-0000
(d)
In
the
case of Servicer,
Xxxxx
Fargo Bank, N.A.
1
Home
Campus
Xxx
Xxxxxx, Xxxx 00000-0000
Attention:
Xxxx X. Xxxxx, MAC X2302-033
With
a
copy to:
Xxxxx
Fargo Bank, N.A.
1
Home
Campus
Xxx
Xxxxxx, Xxxx 00000-0000
Attention:
General Counsel MAC X2401-06T
11. Each
party will pay any commissions, fees and expenses, including attorney’s fees, it
has incurred in connection with the negotiations for, documenting of and
closing
of the transactions contemplated by this AAR Agreement.
12. This
AAR
Agreement shall be construed in accordance with the laws of the State of
New
York, without regard to conflicts of law principles, and the obligations,
rights
and remedies of the parties hereunder shall be determined in accordance
with
such laws.
13. No
term
or provision of this AAR Agreement may be waived or modified unless such
waiver
or modification is in writing and signed by the party against whom such
waiver
or modification is sought to be enforced.
14. This
AAR
Agreement shall inure to the benefit of the successors and assigns of the
parties hereto. Any entity into which Assignor, Assignee or Company may
be
merged or consolidated shall, without the requirement for any further writing,
be deemed Assignor, Assignee or Company, respectively, hereunder.
15. This
AAR
Agreement shall survive the conveyance of the Assigned Loans, the assignment
of
the Servicing Agreement to the extent of the Assigned Loans by Assignor
to
Assignee and the termination of the Servicing Agreement.
16. This
AAR
Agreement may be executed simultaneously in any number of counterparts.
Each
counterpart shall be deemed to be an original and all such counterparts
shall
constitute one and the same instrument.
17. In
the
event that any provision of this AAR Agreement conflicts with any provision
of
the Servicing Agreement with respect to the Assigned Loans, the terms of
this
AAR Agreement shall control.
18. For
purposes of this AAR Agreement, the Trustee and the Master Servicer shall
be
considered third party beneficiaries to this Agreement entitled to all
the
rights and benefits accruing to the Trustee and the Master Servicer, as
applicable, herein as if it were a direct party to this AAR
Agreement.
[SIGNATURES
COMMENCE ON FOLLOWING PAGE]
IN
WITNESS WHEREOF, the parties hereto have executed this AAR Agreement as
of the
day and year first above written.
NOMURA
CREDIT & CAPITAL, INC.
Assignor
By:_________________________________
Name:
Title:
NOMURA
ASSET ACCEPTANCE CORPORATION
Assignee
By:_________________________________
Name:
Title:
XXXXX
FARGO BANK, N.A.
Servicer
By:_________________________________
Name:
Title:
ACKNOWLEDGED
AND AGREED TO:
HSBC
BANK
USA, NATIONAL ASSOCIATION
Trustee
for the holders of the Nomura Asset Acceptance Corporation,
Alternative
Loan Trust, Series 2006-WF1
Mortgage
Pass-Through Certificates
By:_________________________________
Name:
Title:
ACKNOWLEDGED
AND AGREED TO:
XXXXX
FARGO BANK, N.A.
Master
Servicer
By:_________________________________
Name:
Title:
ATTACHMENT
1
ASSIGNED
LOAN SCHEDULE
ATTACHMENT
2
SELLER’S
WARRANTIES AND SERVICING AGREEMENT
ATTACHMENT
3
STANDARD
FILE LAYOUT- SCHEDULED/SCHEDULED
Exhibit
1:
Standard
File Layout - Master Servicing
|
Column
Name
|
Description
|
Decimal
|
Format
Comment
|
Max
Size
|
|
SER_INVESTOR_NBR
|
A
value assigned by the Servicer to define a group of loans.
|
|
Text
up to 10 digits
|
20
|
|
LOAN_NBR
|
A
unique identifier assigned to each loan by the investor.
|
|
Text
up to 10 digits
|
10
|
|
SERVICER_LOAN_NBR
|
A
unique number assigned to a loan by the Servicer. This may be
different
than the LOAN_NBR.
|
|
Text
up to 10 digits
|
10
|
|
BORROWER_NAME
|
The
borrower name as received in the file. It is not separated by
first and
last name.
|
|
Maximum
length of 30 (Last, First)
|
30
|
|
SCHED_PAY_AMT
|
Scheduled
monthly principal and scheduled interest payment that a borrower
is
expected to pay, P&I constant.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
NOTE_INT_RATE
|
The
loan interest rate as reported by the Servicer.
|
4
|
Max
length of 6
|
6
|
|
NET_INT_RATE
|
The
loan gross interest rate less the service fee rate as reported
by the
Servicer.
|
4
|
Max
length of 6
|
6
|
|
SERV_FEE_RATE
|
The
servicer's fee rate for a loan as reported by the Servicer.
|
4
|
Max
length of 6
|
6
|
|
SERV_FEE_AMT
|
The
servicer's fee amount for a loan as reported by the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
NEW_PAY_AMT
|
The
new loan payment amount as reported by the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
NEW_LOAN_RATE
|
The
new loan rate as reported by the Servicer.
|
4
|
Max
length of 6
|
6
|
|
ARM_INDEX_RATE
|
The
index the Servicer is using to calculate a forecasted
rate.
|
4
|
Max
length of 6
|
6
|
|
ACTL_BEG_PRIN_BAL
|
The
borrower's actual principal balance at the beginning of the processing
cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
ACTL_END_PRIN_BAL
|
The
borrower's actual principal balance at the end of the processing
cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
BORR_NEXT_PAY_DUE_DATE
|
The
date at the end of processing cycle that the borrower's next
payment is
due to the Servicer, as reported by Servicer.
|
|
MM/DD/YYYY
|
10
|
|
SERV_CURT_AMT_1
|
The
first curtailment amount to be applied.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT_DATE_1
|
The
curtailment date associated with the first curtailment amount.
|
|
MM/DD/YYYY
|
10
|
|
CURT_ADJ_
AMT_1
|
The
curtailment interest on the first curtailment amount, if
applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT_AMT_2
|
The
second curtailment amount to be applied.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT_DATE_2
|
The
curtailment date associated with the second curtailment
amount.
|
|
MM/DD/YYYY
|
10
|
|
CURT_ADJ_
AMT_2
|
The
curtailment interest on the second curtailment amount, if
applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT_AMT_3
|
The
third curtailment amount to be applied.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT_DATE_3
|
The
curtailment date associated with the third curtailment
amount.
|
|
MM/DD/YYYY
|
10
|
|
CURT_ADJ_AMT_3
|
The
curtailment interest on the third curtailment amount, if
applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
PIF_AMT
|
The
loan "paid in full" amount as reported by the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
PIF_DATE
|
The
paid in full date as reported by the Servicer.
|
|
MM/DD/YYYY
|
10
|
|
|
|
|
Action
Code Key: 15=Bankruptcy, 00xXxxxxxxxxxx, , 00xXXX, 63=Substitution,
65=Repurchase,70=REO
|
2
|
|
ACTION_CODE
|
The
standard FNMA numeric code used to indicate the default/delinquent
status
of a particular loan.
|
|||
|
INT_ADJ_AMT
|
The
amount of the interest adjustment as reported by the
Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SOLDIER_SAILOR_ADJ_AMT
|
The
Soldier and Sailor Adjustment amount, if applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
NON_ADV_LOAN_AMT
|
The
Non Recoverable Loan Amount, if applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
LOAN_LOSS_AMT
|
The
amount the Servicer is passing as a loss, if applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SCHED_BEG_PRIN_BAL
|
The
scheduled outstanding principal amount due at the beginning of
the cycle
date to be passed through to investors.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SCHED_END_PRIN_BAL
|
The
scheduled principal balance due to investors at the end of a
processing
cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SCHED_PRIN_AMT
|
The
scheduled principal amount as reported by the Servicer for the
current
cycle -- only applicable for Scheduled/Scheduled Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SCHED_NET_INT
|
The
scheduled gross interest amount less the service fee amount for
the
current cycle as reported by the Servicer -- only applicable
for
Scheduled/Scheduled Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
ACTL_PRIN_AMT
|
The
actual principal amount collected by the Servicer for the current
reporting cycle -- only applicable for Actual/Actual
Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
ACTL_NET_INT
|
The
actual gross interest amount less the service fee amount for
the current
reporting cycle as reported by the Servicer -- only applicable
for
Actual/Actual Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
PREPAY_PENALTY_
AMT
|
The
penalty amount received when a borrower prepays on his loan as
reported by
the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
PREPAY_PENALTY_
WAIVED
|
The
prepayment penalty amount for the loan waived by the
servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
|
|
|
|
|
|
MOD_DATE
|
The
Effective Payment Date of the Modification for the loan.
|
|
MM/DD/YYYY
|
10
|
|
MOD_TYPE
|
The
Modification Type.
|
|
Varchar
- value can be alpha or numeric
|
30
|
|
DELINQ_P&I_ADVANCE_AMT
|
The
current outstanding principal and interest advances made by
Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
STANDARD
FILE LAYOUT- DELINQUENCY REPORTING
Exhibit
1: Standard File Layout - Delinquency Reporting
|
Column/Header
Name
|
Description
|
Decimal
|
Format
Comment
|
|
SERVICER_LOAN_NBR
|
A
unique number assigned to a loan by the Servicer. This may be
different
than the LOAN_NBR
|
|
|
|
LOAN_NBR
|
A
unique identifier assigned to each loan by the originator.
|
|
|
|
CLIENT_NBR
|
Servicer
Client Number
|
||
|
SERV_INVESTOR_NBR
|
Contains
a unique number as assigned by an external servicer to identify
a group of
loans in their system.
|
|
|
|
BORROWER_FIRST_NAME
|
First
Name of the Borrower.
|
||
|
BORROWER_LAST_NAME
|
Last
name of the borrower.
|
||
|
PROP_ADDRESS
|
Street
Name and Number of Property
|
|
|
|
PROP_STATE
|
The
state where the property located.
|
|
|
|
PROP_ZIP
|
Zip
code where the property is located.
|
|
|
|
BORR_NEXT_PAY_DUE_DATE
|
The
date that the borrower's next payment is due to the servicer
at the end of
processing cycle, as reported by Servicer.
|
MM/DD/YYYY
|
|
|
LOAN_TYPE
|
Loan
Type (i.e. FHA, VA, Conv)
|
|
|
|
BANKRUPTCY_FILED_DATE
|
The
date a particular bankruptcy claim was filed.
|
MM/DD/YYYY
|
|
|
BANKRUPTCY_CHAPTER_CODE
|
The
chapter under which the bankruptcy was filed.
|
|
|
|
BANKRUPTCY_CASE_NBR
|
The
case number assigned by the court to the bankruptcy
filing.
|
|
|
|
POST_PETITION_DUE_DATE
|
The
payment due date once the bankruptcy has been approved by the
courts
|
MM/DD/YYYY
|
|
|
BANKRUPTCY_DCHRG_DISM_DATE
|
The
Date The Loan Is Removed From Bankruptcy. Either by Dismissal,
Discharged
and/or a Motion For Relief Was Granted.
|
MM/DD/YYYY
|
|
|
LOSS_MIT_APPR_DATE
|
The
Date The Loss Mitigation Was Approved By The Servicer
|
MM/DD/YYYY
|
|
|
LOSS_MIT_TYPE
|
The
Type Of Loss Mitigation Approved For A Loan Such As;
|
||
|
LOSS_MIT_EST_COMP_DATE
|
The
Date The Loss Mitigation /Plan Is Scheduled To End/Close
|
MM/DD/YYYY
|
|
|
LOSS_MIT_ACT_COMP_DATE
|
The
Date The Loss Mitigation Is Actually Completed
|
MM/DD/YYYY
|
|
|
FRCLSR_APPROVED_DATE
|
The
date DA Admin sends a letter to the servicer with instructions
to begin
foreclosure proceedings.
|
MM/DD/YYYY
|
|
|
ATTORNEY_REFERRAL_DATE
|
Date
File Was Referred To Attorney to Pursue Foreclosure
|
MM/DD/YYYY
|
|
|
FIRST_LEGAL_DATE
|
Notice
of 1st legal filed by an Attorney in a Foreclosure Action
|
MM/DD/YYYY
|
|
|
FRCLSR_SALE_EXPECTED_DATE
|
The
date by which a foreclosure sale is expected to occur.
|
MM/DD/YYYY
|
|
|
FRCLSR_SALE_DATE
|
The
actual date of the foreclosure sale.
|
MM/DD/YYYY
|
|
|
FRCLSR_SALE_AMT
|
The
amount a property sold for at the foreclosure sale.
|
2
|
No
commas(,) or dollar signs ($)
|
|
EVICTION_START_DATE
|
The
date the servicer initiates eviction of the borrower.
|
MM/DD/YYYY
|
|
|
EVICTION_COMPLETED_DATE
|
The
date the court revokes legal possession of the property from
the
borrower.
|
MM/DD/YYYY
|
|
|
LIST_PRICE
|
The
price at which an REO property is marketed.
|
2
|
No
commas(,) or dollar signs ($)
|
|
LIST_DATE
|
The
date an REO property is listed at a particular price.
|
MM/DD/YYYY
|
|
|
OFFER_AMT
|
The
dollar value of an offer for an REO property.
|
2
|
No
commas(,) or dollar signs ($)
|
|
OFFER_DATE_TIME
|
The
date an offer is received by DA Admin or by the Servicer.
|
MM/DD/YYYY
|
|
|
REO_CLOSING_DATE
|
The
date the REO sale of the property is scheduled to close.
|
MM/DD/YYYY
|
|
|
REO_ACTUAL_CLOSING_DATE
|
Actual
Date Of REO Sale
|
MM/DD/YYYY
|
|
|
OCCUPANT_CODE
|
Classification
of how the property is occupied.
|
|
|
|
PROP_CONDITION_CODE
|
A
code that indicates the condition of the property.
|
|
|
|
PROP_INSPECTION_DATE
|
The
date a property inspection is performed.
|
MM/DD/YYYY
|
|
|
APPRAISAL_DATE
|
The
date the appraisal was done.
|
MM/DD/YYYY
|
|
|
CURR_PROP_VAL
|
The
current "as is" value of the property based on brokers price
opinion or
appraisal.
|
2
|
|
|
REPAIRED_PROP_VAL
|
The
amount the property would be worth if repairs are completed pursuant
to a
broker's price opinion or appraisal.
|
2
|
|
|
If
applicable:
|
|
|
|
|
DELINQ_STATUS_CODE
|
FNMA
Code Describing Status of Loan
|
||
|
DELINQ_REASON_CODE
|
The
circumstances which caused a borrower to stop paying on a loan.
Code
indicates the reason why the loan is in default for this
cycle.
|
||
|
MI_CLAIM_FILED_DATE
|
Date
Mortgage Insurance Claim Was Filed With Mortgage Insurance
Company.
|
MM/DD/YYYY
|
|
|
MI_CLAIM_AMT
|
Amount
of Mortgage Insurance Claim Filed
|
No
commas(,) or dollar signs ($)
|
|
|
MI_CLAIM_PAID_DATE
|
Date
Mortgage Insurance Company Disbursed Claim Payment
|
MM/DD/YYYY
|
|
|
MI_CLAIM_AMT_PAID
|
Amount
Mortgage Insurance Company Paid On Claim
|
2
|
No
commas(,) or dollar signs ($)
|
|
POOL_CLAIM_FILED_DATE
|
Date
Claim Was Filed With Pool Insurance Company
|
MM/DD/YYYY
|
|
|
POOL_CLAIM_AMT
|
Amount
of Claim Filed With Pool Insurance Company
|
2
|
No
commas(,) or dollar signs ($)
|
|
POOL_CLAIM_PAID_DATE
|
Date
Claim Was Settled and The Check Was Issued By The Pool
Insurer
|
MM/DD/YYYY
|
|
|
POOL_CLAIM_AMT_PAID
|
Amount
Paid On Claim By Pool Insurance Company
|
2
|
No
commas(,) or dollar signs ($)
|
|
FHA_PART_A_CLAIM_FILED_DATE
|
Date
FHA Part A Claim Was Filed With HUD
|
MM/DD/YYYY
|
|
|
FHA_PART_A_CLAIM_AMT
|
Amount
of FHA Part A Claim Filed
|
2
|
No
commas(,) or dollar signs ($)
|
|
FHA_PART_A_CLAIM_PAID_DATE
|
Date
HUD Disbursed Part A Claim Payment
|
MM/DD/YYYY
|
|
|
FHA_PART_A_CLAIM_PAID_AMT
|
Amount
HUD Paid on Part A Claim
|
2
|
No
commas(,) or dollar signs ($)
|
|
FHA_PART_B_CLAIM_FILED_DATE
|
Date
FHA Part B Claim Was Filed With HUD
|
MM/DD/YYYY
|
|
|
FHA_PART_B_CLAIM_AMT
|
Amount
of FHA Part B Claim Filed
|
2
|
No
commas(,) or dollar signs ($)
|
|
FHA_PART_B_CLAIM_PAID_DATE
|
Date
HUD Disbursed Part B Claim Payment
|
MM/DD/YYYY
|
|
|
FHA_PART_B_CLAIM_PAID_AMT
|
Amount
HUD Paid on Part B Claim
|
2
|
No
commas(,) or dollar signs ($)
|
|
VA_CLAIM_FILED_DATE
|
Date
VA Claim Was Filed With the Veterans Admin
|
MM/DD/YYYY
|
|
|
VA_CLAIM_PAID_DATE
|
Date
Veterans Admin. Disbursed VA Claim Payment
|
MM/DD/YYYY
|
|
|
VA_CLAIM_PAID_AMT
|
Amount
Veterans Admin. Paid on VA Claim
|
2
|
No
commas(,) or dollar signs ($)
|
Exhibit
2: Standard
File Codes - Delinquency Reporting
The
Loss
Mit Type
field
should show the approved Loss Mitigation Code as follows:
| · |
ASUM-Approved
Assumption
|
| · |
BAP-Borrower
Assistance Program
|
| · |
CO-
Charge Off
|
| · |
DIL-
Deed-in-Lieu
|
| · |
FFA-
Formal Forbearance Agreement
|
| · |
MOD-
Loan Modification
|
| · |
PRE-
Pre-Sale
|
| · |
SS-
Short Sale
|
| · |
MISC-Anything
else approved by the PMI or Pool
Insurer
|
NOTE:
Xxxxx
Fargo Bank will accept alternative Loss Mitigation Types to those above,
provided that they are consistent with industry standards. If Loss Mitigation
Types other than those above are used, the Servicer must supply Xxxxx Fargo
Bank
with a description of each of the Loss Mitigation Types prior to sending
the
file.
The
Occupant
Code
field
should show the current status of the property code as follows:
| · |
Mortgagor
|
| · |
Tenant
|
| · |
Unknown
|
| · |
Vacant
|
The
Property
Condition
field
should show the last reported condition of the property as follows:
| · |
Damaged
|
| · |
Excellent
|
| · |
Fair
|
| · |
Gone
|
| · |
Good
|
| · |
Poor
|
| · |
Special
Hazard
|
| · |
Unknown
|
The
FNMA
Delinquent Reason Code
field
should show the Reason for Delinquency as follows:
|
Delinquency
Code
|
Delinquency
Description
|
|
001
|
FNMA-Death
of principal mortgagor
|
|
002
|
FNMA-Illness
of principal mortgagor
|
|
003
|
FNMA-Illness
of mortgagor’s family member
|
|
004
|
FNMA-Death
of mortgagor’s family member
|
|
005
|
FNMA-Marital
difficulties
|
|
006
|
FNMA-Curtailment
of income
|
|
007
|
FNMA-Excessive
Obligation
|
|
008
|
FNMA-Abandonment
of property
|
|
009
|
FNMA-Distant
employee transfer
|
|
011
|
FNMA-Property
problem
|
|
012
|
FNMA-Inability
to sell property
|
|
013
|
FNMA-Inability
to rent property
|
|
014
|
FNMA-Military
Service
|
|
015
|
FNMA-Other
|
|
016
|
FNMA-Unemployment
|
|
017
|
FNMA-Business
failure
|
|
019
|
FNMA-Casualty
loss
|
|
022
|
FNMA-Energy
environment costs
|
|
023
|
FNMA-Servicing
problems
|
|
026
|
FNMA-Payment
adjustment
|
|
027
|
FNMA-Payment
dispute
|
|
029
|
FNMA-Transfer
of ownership pending
|
|
030
|
FNMA-Fraud
|
|
031
|
FNMA-Unable
to contact borrower
|
|
INC
|
FNMA-Incarceration
|
Exhibit
3: Calculation
of Realized Loss/Gain Form 332- Instruction Sheet
NOTE:
Do not net or combine items. Show all expenses individually and all credits
as
separate line items. Claim packages are due on the remittance report date.
Late
submissions may result in claims not being passed until the following month.
The
Servicer is responsible to remit all funds pending loss approval and /or
resolution of any disputed items.
The
numbers on the 332 form correspond with the numbers listed below.
Liquidation
and Acquisition Expenses:
1.
The
Actual Unpaid Principal Balance of the Mortgage Loan. For documentation,
an
Amortization Schedule from date of default through liquidation breaking
out the
net interest and servicing fees advanced is required.
2.
The
Total
Interest Due less the aggregate amount of servicing fee that would have
been
earned if all delinquent payments had been made as agreed. For documentation,
an
Amortization Schedule from date of default through liquidation breaking
out the
net interest and servicing fees advanced is required.
3.
Accrued
Servicing Fees based upon the Scheduled Principal Balance of the Mortgage
Loan
as calculated on a monthly basis. For documentation, an Amortization Schedule
from date of default through liquidation breaking out the net interest
and
servicing fees advanced is required.
4-12.
Complete
as applicable. Required documentation:
*
For
taxes and insurance advances - see page 2 of 332 form - breakdown required
showing period of
coverage, base tax, interest, penalty. Advances prior to default require
evidence of servicer efforts to recover advances.
*
For
escrow advances - complete payment history (to
calculate advances from last positive escrow balance forward)
*
Other
expenses - copies of corporate advance history showing all payments
*
REO
repairs > $1500 require explanation
*
REO
repairs >$3000 require evidence of at least 2 bids.
*
Short
Sale or Charge Off require P&L supporting the decision and WFB’s approved
Officer Certificate
*
Unusual
or extraordinary items may require further documentation.
13. The
total
of lines 1 through 12.
Credits:
14-21.
Complete
as applicable. Required documentation:
*
Copy of
the HUD 1 from the REO sale. If a 3rd
Party
Sale, bid instructions and Escrow Agent / Attorney Letter
of
Proceeds Breakdown.
*
Copy of
EOB for any MI or gov't guarantee
*
All
other credits need to be clearly defined on the 332
form
|
22.
|
The
total of lines 14 through 21.
|
Please
Note: For
HUD/VA loans, use line (18a) for Part A/Initial proceeds and line (18b)
for Part
B/Supplemental proceeds.
Total
Realized Loss (or Amount of Any Gain)
23.
The
total
derived from subtracting line 22 from 13. If the amount represents a realized
gain, show
the
amount in parenthesis ( ).
Exhibit
3A: Calculation
of Realized Loss/Gain Form 332
Prepared
by: __________________ Date:
_____________________
Phone:
______________________
Email Address:_____________________
|
Servicer Loan No.
|
Servicer Name
|
Servicer Address
|
XXXXX
FARGO BANK, N.A. Loan No._________________________________________
Borrower's
Name: _________________________________________________________
Property
Address: _________________________________________________________
Liquidation
Type: REO Sale
3rd
Party Sale
Short
Sale
Charge
Off
Was
this loan granted a Bankruptcy deficiency or cramdown Yes
No
If
“Yes”,
provide deficiency or cramdown amount
________________________________________
Liquidation
and Acquisition Expenses:
|
(1)
|
Actual
Unpaid Principal Balance of Mortgage Loan
|
$
_______________
|
(1)
|
||||
|
(2)
|
Interest
accrued at Net Rate
|
________________
|
(2)
|
||||
|
(3)
|
Accrued
Servicing Fees
|
________________
|
(3)
|
||||
|
(4)
|
Attorney's
Fees
|
________________
|
(4)
|
||||
|
(5)
|
Taxes
(see page 2)
|
________________
|
(5)
|
||||
|
(6)
|
Property
Maintenance
|
________________
|
(6)
|
||||
|
(7)
|
MI/Hazard
Insurance Premiums (see page 2)
|
________________
|
(7)
|
||||
|
(8)
|
Utility
Expenses
|
________________
|
(8)
|
||||
|
(9)
|
Appraisal/BPO
|
________________
|
(9)
|
||||
|
(10)
|
Property
Inspections
|
________________
|
(10)
|
||||
|
(11)
|
FC
Costs/Other Legal Expenses
|
________________
|
(11)
|
||||
|
(12)
|
Other
(itemize)
|
$________________
|
(12)
|
||||
|
Cash
for Keys__________________________
|
________________
|
||||||
|
HOA/Condo
Fees_______________________
|
________________
|
||||||
|
______________________________________
|
________________
|
||||||
|
______________________________________
|
________________
|
||||||
|
Total
Expenses
|
$
_______________
|
(13)
|
|||||
|
Credits:
|
|||||||
|
(14)
|
Escrow
Balance
|
$
_______________
|
(14)
|
||||
|
(15)
|
HIP
Refund
|
________________
|
(15)
|
||||
|
(16)
|
Rental
Receipts
|
________________
|
(16)
|
||||
|
(17)
|
Hazard
Loss Proceeds
|
________________
|
(17)
|
||||
|
(18)
|
Primary
Mortgage Insurance / Gov’t Insurance
|
________________
|
(18a)
|
||||
|
HUD
Part A
|
|||||||
|
HUD
Part B
|
________________
|
(18b)
|
|||||
|
(19)
|
Pool
Insurance Proceeds
|
________________
|
(19)
|
||||
|
(20)
|
Proceeds
from Sale of Acquired Property
|
________________
|
(20)
|
||||
|
(21)
|
Other
(itemize)
|
________________
|
(21)
|
||||
|
_________________________________________
|
_________________
|
||||||
|
_________________________________________
|
|
_________________
|
|||||
|
Total
Credits
|
$________________
|
|
(22)
|
||||
|
Total
Realized Loss (or Amount of Gain)
|
$________________
|
|
(23)
|
||||
Escrow
Disbursement Detail
|
Type
(Tax
/Ins.)
|
Date
Paid
|
Period
of Coverage
|
Total
Paid
|
Base
Amount
|
Penalties
|
Interest
|
ATTACHMENT
4
BACK-UP
CERTIFICATION
Re: __________
(the “Trust”)
Mortgage
Pass-Through Certificates, Series 2006-WF1
I,
[identify the certifying individual], certify to Nomura Asset Acceptance
Corporation (the “Depositor”), HSBC Bank USA, National Association (the
“Trustee”) and Xxxxx Fargo Bank, N.A. (the “Master Servicer”), and their
respective officers, with the knowledge and intent that they will rely
upon this
certification, that:
(1) I
have
reviewed the servicer compliance statement of the Servicer provided in
accordance with Item 1123 of Regulation AB (the “Compliance Statement”), the
report on assessment of the Servicer’s compliance with the servicing criteria
set forth in Item 1122(d) of Regulation AB (the “Servicing Criteria”), provided
in accordance with Rules 13a-18 and 15d-18 under Securities Exchange Act
of
1934, as amended (the “Exchange Act”) and Item 1122 of Regulation AB (the
“Servicing Assessment”), the registered public accounting firm’s attestation
report provided in accordance with Rules 13a-18 and 15d-18 under the Exchange
Act and Section 1122(b) of Regulation AB (the “Attestation Report”), and all
servicing reports, officer’s certificates and other information relating to the
servicing of the Mortgage Loans by the Servicer during 200[ ] that were
delivered by the Servicer to the Master Servicer pursuant to the Agreement
(collectively, the “Servicer Servicing Information”);
(2) Based
on
my knowledge, the Servicer Servicing Information, taken as a whole, does
not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in the light of the circumstances
under
which such statements were made, not misleading with respect to the period
of
time covered by the Servicer Servicing Information;
(3) Based
on
my knowledge, all of the Servicer Servicing Information required to be
provided
by the Servicer under the Agreement has been provided to the Master
Servicer;
(4) I
am
responsible for reviewing the activities performed by the Servicer under
the
Agreement, and based on my knowledge and the compliance review conducted
in
preparing the Compliance Statement and except as disclosed in the Compliance
Statement, the Servicing Assessment or the Attestation Report, the Servicer
has
fulfilled its obligations under the Agreement in all material respects;
and
(5) The
Compliance Statement required to be delivered by the Servicer pursuant
to the
Agreement, and the Servicing Assessment and Attestation Report required
to be
provided by the Servicer and by any Subservicer and Subcontractor pursuant
to
the Agreement, have been provided to the Master Servicer. Any material
instances
of noncompliance described in such reports have been disclosed to the Master
Servicer. Any material instance of noncompliance with the Servicing Criteria
has
been disclosed in such reports.
Capitalized
terms used and not otherwise defined herein have the meanings assigned
thereto
in the Seller’s Warranties and Servicing Agreement, dated as of May 1, 2006,
between Xxxxx Fargo Bank, N.A. and Nomura
Credit & Capital, Inc.,
as
modified by the Assignment, Assumption and Recognition Agreement, dated
as of
August 30, 2006, among Nomura Credit & Capital, Inc., Nomura Asset
Acceptance Corporation and Xxxxx Fargo Bank, N.A. (together, the “Servicing
Agreement”).
|
Date:
|
||
|
[Signature]
|
||
|
[Title]
|
||
EXHIBIT
P
Cap
Contract
|
Nomura
Global Financial Products Inc.
2
World Financial Xxxxxx
Xxxxxxxx
X, 00xx
Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000-0000
|
 |
|
Telephone:
|
||||
|
Confirmations
|
(000)
000-0000
|
Direct
Fax
|
(000)
000-0000
|
|
Date:
|
Wednesday,
The 30th of August 2006
|
|
To:
|
HSBC
Bank USA, National Association, not in its individual capacity,
but solely
as Trustee on behalf of the Nomura Asset Acceptance Corporation,
Alternative Loan Trust, Series 2006-WF1, Mortgage Pass-Through
Certificates, Series 2006-WF1
|
|
From:
|
Nomura
Global Financial Products Inc.
|
|
Attention:
|
Cap
Documentation
|
Re
: Cap Transaction (Class A-1 Certificates)
Execution
Copy
Dear
Sir
or Madam:
The
purpose of this facsimile message/letter agreement is to confirm the terms
and
conditions of the Transaction entered into between Nomura Global Financial
Products Inc. (“NGFP”) and HSBC Bank USA, National Association, not in its
individual capacity, but solely as Trustee (the “Trustee”) on
behalf
of the Nomura Asset Acceptance Corporation, Alternative Loan Trust, Series
2006-WF1, Mortgage Pass-Through Certificates, Series 2006-WF1 (the “Counterparty”)
on the Trade Date specified below (the “Cap Transaction”).
The
definitions and provisions contained in the 2000 ISDA Definitions, as published
by the International Swaps and Derivatives Association, Inc., are incorporated
into this Confirmation. In the event of any inconsistency between those
definitions and provisions and this Confirmation, this Confirmation will
govern.
This Cap Transaction relates to the Class A-1 Certificates issued pursuant
to
the Pooling and Servicing Agreement dated as of August 1, 2006, among Nomura
Asset Acceptance Corporation, as Depositor, Nomura Credit & Capital, Inc.,
as Sponsor, GMAC Mortgage Corporation, as Servicer, Xxxxx Fargo Bank, National
Association, as Master Servicer and Securities Administrator, and HSBC
Bank USA,
National Association, as Trustee (the “Pooling and Servicing Agreement”). Terms
capitalized but not defined herein shall have the respective meanings set
forth
in the Pooling and Servicing Agreement.
This
Confirmation constitutes a “Confirmation” as referred to in, and supplements,
forms part of and is subject to, the ISDA Master Agreement dated as of
the
30th
of August 2006 as
amended and supplemented from time to time (the “Agreement”), between NGFP and
Counterparty. All provisions contained in the Agreement govern this Confirmation
except as expressly modified below.
1.
The
terms of the particular Cap Transaction to which this Confirmation relates
are
as follows:
|
Notional
Amount:
|
With
respect to any Calculation Period, the Calculation Amount set
forth in the
Schedule I (Amortization Schedule) below
|
|||
|
Trade
Date:
|
The
30th of August 2006
|
|||
|
Effective
Date:
|
The
30th of August 2006
|
|||
|
Termination
Date:
|
The
25th of August 2008, subject to adjustment in accordance with
the Modified
Following Business Day Convention
|
|||
|
Business
Days:
|
New
York, unless indicated otherwise
|
|||
|
FIXED
AMOUNTS:
|
||||
|
Fixed
Rate Payer:
|
Counterparty
|
|||
|
Fixed
Rate Payer Payment Date:
|
No
later than the 30th of August 2006, subject to adjustment in
accordance
with the Modified Following Business Day Convention
|
|||
|
Fixed
Amount:
|
USD
9,000.00
|
|||
|
FLOATING
AMOUNTS:
|
|||||
|
Floating
Rate Payer:
|
NGFP
|
||||
|
Cap
Rate:
|
With
respect to each Calculation Period, the Cap Rate set forth for
such period
on Schedule I (Amortization Schedule) below
|
||||
|
Floating
Rate Payer Payment Dates:
|
The
25th of each month, commencing on the 25th of September 2006
to and
including the 25th of August 2008, all subject to adjustment
in accordance
with the Modified Following Business Day Convention and the Termination
Date (provided that for the avoidance of doubt each of the dates
referred
to in this clause shall be subject to the defined term “Early
Payment”).
|
||||
|
Floating
Rate Payer Period End Dates:
|
The
25th of each month, commencing on the 25th of September 2006
to and
including the 25th of August 2008, all subject to adjustment
in accordance
with the Modified Following Business Day Convention and the Termination
Date
|
||||
|
Early
Payment:
|
Two
Business Days
|
||||
|
Floating
Rate for initial Calculation Period:
|
5.33
per cent per annum, exclusive of Spread
|
||||
|
Floating
Rate Option:
|
USD-LIBOR-BBA;
provided, however, that if the Floating Rate Option on the Reset
Date of
any Calculation Period is greater than 11.40 per cent per annum,
then the
Floating Rate Option for such Calculation Period shall be deemed
to be
11.40 percent per annum
|
||||
|
Floating
Amount:
|
To
be determined in accordance with the following formula:
The
greater of (i) (Floating Rate Option - Cap Rate) x Notional Amount
x
Floating Rate Payer Day Count Fraction, and (ii) zero
|
||||
|
Designated
Maturity:
|
1
month, except for the initial Calculation Period, which shall
be the
Linear Interpolation of 2 weeks and 1 month
|
||||
|
Floating
Rate Payer Day Count Fraction:
|
Actual/360
|
||||
| Reset Dates: |
The
first day of each Calculation Period
|
||||
| Compounding: |
Not
Applicable
|
||||
|
Calculation
Agent:
|
NGFP
|
||||
|
2.
Additional Provisions:
|
|||||
|
Monthly
Information:
|
No
later than each Reset Date, NGFP shall deliver to Counterparty,
a written
confirmation containing the results of the calculations performed
on each
Reset Date and the amount which is to be paid to Counterparty
on the next
Floating Rate Payer Payment Date at the following address:
HSBC
Bank USA, National Association
000
Xxxxx Xxxxxx
Xxx
Xxxx, XX 00000
Attention:
Corporate Trust - Xxxxx Xxxxx
Fax:
(000) 000-0000
With
a copy to:
Xxxxx
Fargo Bank, National Association
0000
Xxx Xxxxxxxxx Xxxx
Xxxxxxxx,
XX 00000
Attention:
Client Manager, NAAC 2006-WF1
Fax:
(000) 000-0000
|
||||
3.
Account Details
Payments
to NGFP (USD):
Our
Account Details:
Agent
Bank: Bank
of
America, New York
Swift
Code:
XXXXXX0X
Account
No: 0000-0-00000
Beneficiary: Nomura
Global Financial Products Inc. (XXXXXX00)
Payments
to Counterparty (USD):
Your
Account Details:
Agent
Bank: Xxxxx
Fargo Bank, National Association
ABA
#:
[TBA]
For
Credit To: SAS
Clearing
Account
No:
[TBA]
FCC
to:
NAAC
06-WF1, Account # [TBA] Net WAC Reserve Fund Account
Beneficiary:
HSBC
Bank
USA, National Association
4.
Offices:
| (a) |
The
Office of Counterparty for the Cap Transaction is New York, New
York.
|
| (b) |
The
Office of NGFP for the Cap Transaction is New York, New
York.
|
5.
Credit
Support Documents: As
set
out in the applicable ISDA Master Agreement
6.
Each
party hereto represents that entering into this Transaction is authorised
and
does not violate any laws of its jurisdiction or organisation or residence
or
the terms of any agreement to which it is a party. Each party hereto represents
that (i) it is not relying on the other party in connection with its decision
to
enter into this Transaction, and neither party is acting as an advisor
to or
fiduciary of the other party in connection with this Transaction regardless
of
whether the other party has provided or provides it with market information
or
its views, (ii) it understands the risks of this Transaction and any; legal,
regulatory, tax accounting and economic consequences resulting therefrom;
and
(iii) it has determined based upon its own judgement and upon any advice
received from its own professional advisors as it has deemed necessary
to
consult that entering into this Transaction is appropriate for such party
in
light of its financial capabilities and objectives. NGFP represents that
upon
due execution and delivery of this Confirmation, it will constitute a legally
valid and binding obligation, enforceable against it in accordance with
its
terms, subject to applicable principles of bankruptcy and creditors’ rights
generally and to equitable principles of general application.
7.
Limitation
of Liability.
It is
expressly understood and agreed by the parties hereto that (a) this Agreement
is
executed and delivered by HSBC Bank USA, National Association (“HSBC”), not in
its individual capacity or personally, but solely as the Trustee, in the
exercise of the powers and authority conferred and vested in it under the
Pooling and Servicing Agreement (b) the representations, undertakings and
agreements herein made on the part of the Counterparty are made and intended
not
as personal representations, undertakings and agreements by HSBC but are
made
and intended for the purpose of binding only the Counterparty, (c) nothing
herein contained shall be construed as creating any liability on HSBC,
in its
individual capacity or personally, to perform any covenant either expressed
or
implied contained herein, all such liability, if any, being expressly waived
by
the parties who are signatories to this Agreement and by any person claiming
by,
through or under such parties and (d) under no circumstances shall HSBC
be
personally liable for the payment of any indebtedness or expenses of the
Counterparty (including, but not limited to the Fixed Rate Payment) or
be liable
for the breach or failure of any obligation, representation, warranty or
covenant made or undertaken by the Counterparty under this
Agreement.
The
obligations of NGFP under this Agreement are subject to the Guarantee of
NSC as
set forth in Exhibits to the Agreement.
Please
confirm that the foregoing correctly sets forth the terms of our agreement
by
signing a copy of this Confirmation and returning it to us by email or
facsimile
transmission on XXXXXxxxxxxxxxxxx@xx.xxxxxx.xxx or (000) 000-0000, respectively
to Nomura Global Financial Products Inc., Attention: Documentation, together
with your account details.
Yours
faithfully,
Nomura
Global Financial Products Inc.
By:_______________________
Name:
Title:
Confirmed
and accepted as of the date first written:
HSBC
Bank
USA, National Association, not in its individual capacity, but solely as
Trustee
on behalf of the Nomura Asset Acceptance Corporation, Alternative Loan
Trust,
Series 2006-WF1, Mortgage Pass-Through Certificates, Series
2006-WF1
____________________
By:
Name:
Title:
Schedule
I (Amortization Schedule)
Between
Nomura Global Financial Products Inc. (“NGFP”) and HSBC Bank USA, National
Association, not in its individual capacity, but solely as Trustee on behalf
of
the Nomura Asset Acceptance Corporation, Alternative Loan Trust, Series
2006-WF1, Mortgage Pass-Through Certificates, Series 2006-WF1 (“Counterparty”),
pursuant to the Pooling and Servicing Agreement, dated as of August 1,
2006,
among the Trustee, GMAC Mortgage Corporation, Xxxxx Fargo Bank, National
Association, Nomura Credit & Capital, Inc., and Nomura Asset Acceptance
Corporation.
|
Calculation
Period
|
Cap
Rate %
|
USD Calculation
Amount
|
|
Commencing
on the Effective Date
|
8.092
|
133,955,000.00
|
|
Commencing
on the 25th of September 2006
|
7.000
|
129,998,000.00
|
|
Commencing
on the 25th of October 2006
|
6.771
|
125,794,000.00
|
|
Commencing
on the 25th of November 2006
|
7.000
|
121,086,000.00
|
|
Commencing
on the 25th of December 2006
|
6.771
|
115,886,000.00
|
|
Commencing
on the 25th of January 2007
|
6.771
|
110,207,000.00
|
|
Commencing
on the 25th of February 2007
|
7.507
|
104,064,000.00
|
|
Commencing
on the 25th of March 2007
|
6.771
|
97,474,000.00
|
|
Commencing
on the 25th of April 2007
|
7.000
|
90,460,000.00
|
|
Commencing
on the 25th of May 2007
|
6.771
|
83,594,000.00
|
|
Commencing
on the 25th of June 2007
|
7.000
|
76,874,000.00
|
|
Commencing
on the 25th of July 2007
|
6.771
|
70,295,000.00
|
|
Commencing
on the 25th of August 2007
|
6.771
|
63,856,000.00
|
|
Commencing
on the 25th of September 2007
|
7.000
|
57,552,000.00
|
|
Commencing
on the 25th of October 2007
|
6.771
|
51,381,000.00
|
|
Commencing
on the 25th of November 2007
|
7.001
|
45,340,000.00
|
|
Commencing
on the 25th of December 2007
|
6.772
|
39,426,000.00
|
|
Commencing
on the 25th of January 2008
|
6.772
|
33,636,000.00
|
|
Commencing
on the 25th of February 2008
|
7.246
|
28,111,000.00
|
|
Commencing
on the 25th of March 2008
|
6.772
|
22,785,000.00
|
|
Commencing
on the 25th of April 2008
|
7.001
|
17,576,000.00
|
|
Commencing
on the 25th of May 2008
|
6.772
|
12,481,000.00
|
|
Commencing
on the 25th of June 2008
|
7.001
|
7,500,000.00
|
|
Commencing
on the 25th of July 2008
|
6.772
|
2,628,000.00
|
For
the
avoidance of doubt, the dates in the above Amortization Schedule are subject
to
adjustment in accordance with the Modified Following Business Day
Convention.
ISDAâ
International
Swaps and Derivatives Association, Inc.
SCHEDULE
to
the
Master
Agreement
dated
as
of August 30, 2006,
between
Nomura
Global Financial Products Inc. ("NGFP")
and HSBC
Bank USA, National Association, not individually, but solely as Trustee
on
behalf of the Nomura
Asset Acceptance Corporation, Alternative Loan Trust, Series 2006-WF1,
Mortgage
Pass-Through Certificates, Series 2006-WF1 ("Counterparty")
Part
1. Termination Provisions
(a) "Specified
Entity"
means in
relation to NGFP for the purpose of:
Section
5(a)(v), None,
Section
5(a)(vi), None,
Section
5(a)(vii), None,
Section
5(b)(iv), None,
and
in
relation to Counterparty for the purpose of:
Section
5(a)(v), None,
Section
5(a)(vi), None,
Section
5(a)(vii), None,
Section
5(b)(iv),
None.
(b) "Specified
Transaction"
with
respect to NGFP and Counterparty, “Specified Transaction” will not be
applicable.
(c) The
“Breach
of Agreement”
provisions of Section 5(a)(ii) of the Agreement will be inapplicable
to NGFP and
Counterparty.
(d)
The
“Credit
Support Default”
provisions of Section 5(a)(iii) of the Agreement will be inapplicable
to NGFP
and Counterparty.
(e)
The
“Misrepresentation”
provisions
of Section 5(a)(iv) of the Agreement will be inapplicable to NGFP and
Counterparty.
(f)
The
“Default
Under Specified Transaction”
provisions of Section 5(a)(v) of the Agreement will be inapplicable to
NGFP and
Counterparty.
(g)
The
“Bankruptcy”
provision of Section 5(a)(vii)(2) of the Agreement will be inapplicable
to
Counterparty.
(h) The
"Cross
Default"
provisions of Section 5(a)(vi) of this Agreement will not apply to NGFP
and will
not apply to Counterparty.
(i) The
"Credit
Event Upon Merger"
provisions of Section 5(b)(iv) of this Agreement will not apply to NGFP
and will
not apply to Counterparty.
(j)
The
"Automatic
Early Termination"
provisions of Section 6(a) of this Agreement will not apply to NGFP and
will not
apply to Counterparty.
(k)
Payments
on Early Termination.
For the
purpose of Section 6(e) of this Agreement:
(i) Market
Quotation will apply.
(ii) The
Second Method will apply.
(l) "Termination
Currency"
means
U.S. Dollars.
(m) Additional
Termination Event will
not
apply, except as provided herein.
Part
2. Tax Representations
(a) Payer
Tax Representation.
For the
purpose of Section 3(e) of this Agreement, NGFP and Counterparty will
make the
following representation:
It
is not
required by any applicable law, as modified by the practice of any relevant
governmental revenue authority, of any Relevant Jurisdiction to make
any
deduction or withholding for or on account of any Tax from any payment
(other
than interest under Section 2(e), 6(d)(ii) or 6(e) of this Agreement)
to be made
by the other party under this Agreement. In making this representation,
the
party may rely on (i) the accuracy of any representation made by the
other party
pursuant to Section 3(f) of this Agreement, (ii) the satisfaction of
the
agreement of the other party contained in Section 4(a)(i) or 4(a)(iii)
of this
Agreement, and the accuracy and effectiveness of any document provided
by the
other party pursuant to Section 4(a)(i) or 4(a)(iii) of this Agreement
and (iii)
the satisfaction of the agreement of the other party contained in Section
4(d)
of this Agreement; provided
that it
shall not be a breach of this representation where reliance is placed
on clause
(ii) and the other party does not deliver a form or document under Section
4(a)(iii) by reason of material prejudice to its legal or commercial
position.
(b) Payee
Tax Representations.
For the
purpose of Section 3(f) of this Agreement, NGFP and Counterparty make
the
representations specified below, if any:
(i)
NGFP
represents that it is a corporation organized under the laws of the state
of
Delaware, and
(ii)
Counterparty represents that the
beneficial owner of the payments made to it under this Agreement is either
(i) a
"U.S. person" (as that term is used in section 1.1441-4(a)(3)(ii) of
United
States Treasury Regulations) for United States federal income tax purposes
and
an "Exempt recipient" within the meaning of section 1.6049-4(c)(1)(ii)
of United
States Treasury Regulations, or (ii) a "non-U.S. branch of a foreign
person" as
that term is used in section 1.1441-4(a)(3)(ii) of the United States
Treasury
Regulations (the "Regulations") for United States federal income tax
purposes,
and it is a "foreign person" as that term is used in section 1.6041-4(a)(4)
of
the Regulations for United States federal income tax purposes.
.
Part
3. Agreement to Deliver Documents
For
the
purpose of Section 4(a)(i) and (ii) of this Agreement, each party agrees
to
deliver the following documents, as applicable:
|
Party
required
to
deliver
document
|
Form/Document/Certificate
|
Date
by which
to
be delivered
|
Covered
by Section 3(d) Representation
|
(a)
Tax
forms
|
Counterparty
|
IRS
Form W-9 (or any successors thereto); each completed in a manner
reasonably satisfactory to NGFP.
|
(i)
Before the first scheduled payment; (ii) promptly upon reasonable
demand
by NGFP; and (iii) promptly upon learning that any Form W-9
(or any
successor thereto) previously provided by Counterparty has
become obsolete
or incorrect.
|
N/A
|
|
NGFP
|
IRS
Form W-9 (or any successors thereto); each completed in a manner
reasonably satisfactory to Counterparty.
|
(i)
Before the first scheduled payment; (ii) promptly upon reasonable
demand
by Counterparty; and (iii) promptly upon learning that any
Form previously
provided by NGFP has become obsolete or incorrect.
|
N/A
|
(b) Other
documents
|
NGFP
|
A
copy of the financial statements of NSC containing the consolidated
financial statements certified by independent certified public
accountants
and prepared in accordance with accounting principles that
are generally
accepted in Japan.
|
As
soon as practicable after execution of this Agreement and thereafter
on
request.
|
No
|
|
NGFP
|
Evidence
of (i) the authority of NGFP and its Credit Support Provider,
as
applicable, to enter into this Agreement and supplemental Confirmations
and the Credit Support Document specified in Part 4, Section
(f) of this
Schedule, as the case may be, and
(ii) the authority and signature specimens of persons authorised
to sign
on behalf of NGFP and its Credit Support Provider, as applicable,
reasonably satisfactory to the other party.
|
As
soon as practicable after execution of this Agreement
or
execution of a Confirmation of a Transaction, as applicable
|
Yes
|
|
Counterparty
|
Evidence
of (i) the authority of Counterparty to enter into this Agreement
and
supplemental Confirmations and (ii) the authority and signature
specimens
of persons authorised to sign on behalf of Counterparty reasonably
satisfactory to the other party.
|
Upon
execution of this Agreement.
|
Yes
|
|
NGFP
|
A
duly executed copy of the Credit Support Document specified
in Part 4,
Section (f) of this Schedule to be delivered by NGFP.
|
As
soon as practicable after execution of this Agreement.
|
No
|
Part
4. Miscellaneous
(a)
Addresses
for Notices.
For the
purpose of Section 12(a) of this Agreement:
Address
for notices or communications to NGFP:
Address:
2
World
Financial Center, Xxxx X, 00xx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000-0000
Attention:
General
Counsel
Telex
No:
222371 Answerback:
NOMRA
UR
Phone
No:
(000) 000-0000 Facsimile
No: (000)
000-0000
Address
for notices or communications to Counterparty:
Address:
HSBC Bank USA, National Association
000
Xxxxx Xxxxxx
Xxx
Xxxx, XX 00000
Attention:
NAAC 2006 WF1, Corporate Trust - Xxxxx Xxxxx
Phone
No:
(000) 000-0000
Facsimile
No: (000) 000-0000
With
a
copy to:
Xxxxx
Fargo Bank, N.A.
0000
Xxx
Xxxxxxxxx Xxxx
Xxxxxxxx,
XX 00000
Attention:
Client Manager, NAAC 2006-WF1
Fax:
(000) 000-0000
Phone
No:
(000) 000-0000
(b) Process
Agent.
For the
purpose of Section 13(c) of this Agreement,
NGFP
appoints as its Process Agent: None.
Counterparty
appoints as its Process Agent: None.
(c) Offices.
The
provisions of Section 10(a) will not apply to this Agreement.
(d) Multibranch
Party.
For the
purpose of Section 10(c) of this Agreement:
NGFP
is
not a Multibranch Party; and
Counterparty
is not a Multibranch Party.
(e) Calculation
Agent.
The
Calculation Agent shall be NGFP.
(f)
Credit Support Document.
Details
of any Credit Support Document:
(i)
in
the case of NGFP, a Guarantee executed by Nomura Securities Co., Ltd.
(“NSC”)
substantially in the form attached hereto as Exhibit A (the “Guarantee”),
and,
(ii)
in
the case of Counterparty, None.
(g) Credit
Support Provider.
"Credit
Support Provider"
shall
mean, in respect of NGFP, NSC and, in respect of Counterparty,
None.
(h) Governing
Law.
This
Agreement will be governed by and construed in accordance with the laws
of the
State of New York without reference to choice of law doctrine, other
than New
York General Obligations Law Sections 5-1401 and 5-1402.
(i) Netting
of Payments.
Subparagraph (ii) of Section 2(c) of this Agreement will apply, unless
otherwise
stated in any Confirmation for a Transaction.
(j) "Affiliate",
with
respect to NGFP, shall have the meaning specified in Section 14 of this
Agreement, and with respect to Counterparty shall mean: None.
Part
5. Other Provisions
1. Set-Off
Notwithstanding
any provision of this Agreement or any other existing or future agreement,
each
party irrevocably waives any and all rights it may have to set off, net,
recoup
or otherwise withhold or suspend or condition payment or performance
of any
obligation between it and the other party hereunder against any obligation
between it and the other party under any other agreements. The provisions
for
Set-off set forth in Section 6(e) of the Agreement shall not apply for
purposes
of this Transaction.
2. Consent
to Recording
Each
party (a) consents to the recording of the telephone conversations of
trading
and marketing personnel of the parties in connection with this Agreement
or any
potential Transaction between the parties and (b) agrees to obtain any
necessary
consent of, and give notice of such recording to, its personnel.
3. Additional
Representations and Agreements
Each
party represents to the other party (which representations shall be deemed
repeated by each party on each date on which a Transaction is entered
into and
shall be representations for all purposes of this Agreement including,
without
limitation, Sections 3, 4, and 5(a)(iv) hereof):
(i)
No
Agency.
It is
entering into this Agreement and each Transaction as principal and not
as agent
of any person nor in any other capacity, fiduciary or otherwise;
(ii) (a) Non-Reliance.
In
the
case of NGFP, it is acting for its own account and in the case of the
Counterparty, it is acting as Trustee on behalf of the Trust. In the
case of
NGFP, it has made its own independent decisions to enter into that Transaction
and as to whether that Transaction is appropriate or proper for it based
upon
its own judgment and upon advice from such advisers as it has deemed
necessary
and in the case of the Counterparty, it has entered into this Transaction
pursuant to the terms of the Pooling and Servicing Agreement and
at
the direction of the Issuer. Its not relying on any communication (written
or
oral) of the other party as investment advice or as a recommendation
to enter
into that Transaction; it being understood that information and explanations
related to the terms and conditions of a Transaction shall not be considered
investment advice or a recommendation to enter into that Transaction.
No
communication (written or oral) received from the other party shall be
deemed to
be an assurance or guarantee as to the expected results of that
Transaction,
(b) Assessment
and Understanding. It
is
capable of assessing the merits of and understanding (on its own behalf
or
through independent professional advice), and understands and accepts,
the
terms, conditions and risks of that Transaction. It is also capable of
assuming,
and assumes, the risks of that Transaction, and
(c) Status
of Parties. The
other
party is not acting as a fiduciary for or an adviser to it in respect
of that
Transaction;
(iii) Eligible
Contract Participant.
It is an
"eligible contract participant" as defined in Section 1a(12) of the Commodity
Exchange Act, as amended;
(iv)
FDICIA.
In the
case of NGFP, it intends that this Agreement be treated as, and warrants
that
the Agreement is, a "netting contract" for purposes of the Federal Deposit
Insurance Corporation Improvement Act of 1991, as amended (the
"Act").
4. Waiver
of Jury Trial
Each
party hereby irrevocably waives its right to jury trial with respect
to any
obligation arising under, or in connection with, this Agreement.
5.
Severability
Any
provision of this Agreement which is prohibited or unenforceable in any
jurisdiction in respect of any Transaction shall, as to such Transaction,
be
ineffective to the extent of such prohibition or unenforceability but
without
invalidating the remaining provisions of this Agreement or affecting
the
validity or enforceability of such provision in any other jurisdiction
or in
respect of any other Transaction, unless such severance shall substantially
impair the benefits of the remaining portions of this Agreement to, or
changes
the reciprocal obligations of, either of the parties. The parties hereto
shall
endeavor in good faith negotiations to replace the prohibited or unenforceable
provision with a valid provision the economic effect of which comes as
close as
possible to that of the prohibited or unenforceable provision.
6.
Fully-paid
Party Protected
Notwithstanding
the terms of Sections 5 and 6 of the Agreement, if Counterparty has satisfied
its payment obligations under Section 2(a)(i) of the Agreement, then
unless NGFP
is required pursuant to appropriate proceedings to return to Counterparty
or
otherwise returns to Counterparty upon demand of Counterparty any portion
of
such payment, (a) the occurrence of an event described in Section 5(a)
of the
Agreement with respect to Counterparty shall not constitute an Event
of Default
or Potential Event of Default with respect to Counterparty as the Defaulting
Party and (b) NGFP shall be entitled to designate an Early Termination
Event
pursuant to Section 6 of the Agreement only as a result of a Termination
Event
set forth in either Section 5(b)(i) or Section 5(b)(ii) of the Agreement
with
respect to NGFP as the Affected Party or Section 5(b)(iii) of the Agreement
with
respect to NGFP as the Burdened Party. For purposes of each Transaction
to which
this Agreement relates, Counterparty’s only obligation under Section 2(a)(i) of
the Agreement is to pay the Fixed Amount on the Fixed Rate Payer Payment
Date.
7. Proceedings
NGFP
shall not institute against or cause any other person to institute against,
or
join any other person in instituting against, the Counterparty, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or
other
proceedings under any federal or state bankruptcy, dissolution or similar
law,
for a period of one year and one day (or, if longer, any applicable preference
period) following indefeasible payment in full of the Certificates (as
defined
in that Pooling and Servicing Agreement, dated as of August 1, 2006,
among
Nomura Asset Acceptance Corporation, a Delaware corporation, as depositor,
Nomura Credit & Capital, Inc., a Delaware corporation, as Sponsor, Xxxxx
Fargo Bank, National Association, a national banking association, as
Master
Servicer and Securities Administrator, and HSBC Bank USA, National Association,
a national banking association, not in its individual capacity, but solely
as
trustee (the “Trustee”) (the “Pooling and Servicing Agreement”)).
9. Limitation
of Liability
It
is
expressly understood and agreed by the parties hereto that (a) this Agreement
is
executed and delivered by HSBC Bank USA, National Association (“HSBC”), not
individually or personally but solely as the Trustee, in the exercise
of the
powers and authority conferred and vested in it under the Pooling and
Servicing
Agreement (b) the representations, undertakings and agreements herein
made on
the part of the Trust created pursuant to the Pooling and Servicing Agreement
are made and intended not as personal representations, undertakings and
agreements by HSBC but are made and intended for the purpose of binding
only the
Trust, (c) nothing herein contained shall be construed as creating any
liability
on HSBC, individually or personally, to perform any covenant either expressed
or
implied contained herein, all such liability, if any, being expressly
waived by
the parties who are signatories to this Agreement and by any person claiming
by,
through or under such parties and (d) under no circumstances shall HSBC
be
personally liable for the payment of any indebtedness or expenses of
the Trust
(including, but not limited to the Fixed Rate Payment) or be liable for
the
breach or failure of any obligation, representation, warranty or covenant
made
or undertaken by the Trust under this Agreement.
10. Additional
Termination Events
(i)
If,
upon the occurrence of a Swap Disclosure Event (as defined in Part 11 below)
NGFP has not, within 10 days after such Swap Disclosure Event complied
with any
of the provisions set forth in Part 11(iii) below, then an Additional
Termination Event shall have occurred with respect to NGFP and NGFP shall
be the
sole Affected Party with respect to such Additional Termination
Event.
(ii)
An
Additional Termination Event shall occur upon unrescindable notice by
the Master
Servicer that it will purchase all Mortgage Loans in accordance with
Section
10.01 of the Pooling and Servicing Agreement. With respect to such Additional
Termination Event, Counterparty shall be the sole Affected Party and
this
Transaction shall be the sole Affected Transaction; provided, however,
that
notwithstanding Section 6(b)(iv) of the ISDA Form Master Agreement, only
Counterparty may designate an Early Termination Date in respect of this
Additional Termination Event.
11. Compliance
with Regulation AB
(i) NGFP
agrees and acknowledges that Nomura Asset Acceptance Corporation (“NAAC”) is
required under Regulation AB under the Securities Act of 1933, as amended,
and
the Securities Exchange Act of 1934, as amended (the “Exchange Act”)
(“Regulation AB”), to disclose certain financial information regarding NGFP or
its group of affiliated entities, if applicable, depending on the aggregate
“significance percentage” of this Agreement and any other derivative contracts
between NGFP or its group of affiliated entities, if applicable, and
Counterparty, as calculated from time to time in accordance with Item
1115 of
Regulation AB.
(ii) It
shall
be a swap disclosure event (“Swap Disclosure Event”) if, on any Business Day
after the date hereof, NAAC requests from NGFP the applicable financial
information described in Item 1115 of Regulation AB (such request to
be based on
a reasonable determination by NAAC, in good faith, that such information
is
required under Regulation AB) (the “Swap Financial Disclosure”).
(iii)
Upon the occurrence of a Swap Disclosure Event, NGFP, at its own expense,
shall
(a) (1)(a) either (i) provide to the Depositor the current Swap Financial
Disclosure in Microsoft Word® or Microsoft Excel® format or (ii) provide written
consent to the Depositor to incorporation by reference of such current
Swap
Financial Disclosure that are filed with the Securities and Exchange
Commission
in the reports of the Trust filed pursuant to the Exchange Act, (b) if
applicable, cause its outside accounting firm to provide its consent
to filing
or incorporation by reference of such accounting firm’s report relating to their
audits of such current Swap Financial Disclosure in the Exchange Act
Reports of
the Depositor, and (c) provide to the Depositor any updated Swap Financial
Disclosure with respect to NGFP or any entity that consolidates NGFP
within five
days of the release of any such updated Swap Financial Disclosure;, (b)
secure
another entity to replace NGFP as party to this Agreement on terms substantially
similar to this Agreement and subject to prior notification to the Swap
Rating
Agencies, which entity (or a guarantor therefor) meets or exceeds the
Approved
Rating Thresholds (and which satisfies the [Rating Agency Condition])
and which
entity is able to comply with the requirements of Item 1115 of Regulation
AB, or
(c) obtain a guaranty of NGFP’s obligations under this Agreement from an
affiliate of NGFP that is able to comply with the financial information
disclosure requirements of Item 1115 of Regulation AB, such that disclosure
provided in respect of the affiliate will satisfy any disclosure requirements
applicable to the Swap Provider, and cause such affiliate to provide
Swap
Financial Disclosure. If permitted by Regulation AB, any required Swap
Financial
Disclosure may be provided by incorporation by reference from reports
filed
pursuant to the Exchange Act. For purposes of this provision, “Rating Agency
Condition” means, with respect to any particular proposed act or omission to act
hereunder that the party acting or failing to act must consult with each
of the
rating agencies then providing a rating of the Certificates and receive
from
each such rating agency a prior written confirmation that the proposed
action or
inaction would not cause a downgrade or withdrawal of the then-current
rating of
any Certificates.
(iv) NGFP
agrees that, in the event that NGFP provides Swap Financial Disclosure
to NAAC
in accordance with Part 11(iii)(a) or causes its affiliate to provide
Swap
Financial Disclosure to NAAC in accordance with Part 11(iii)(c), it will
indemnify and hold harmless NAAC, its respective directors or officers
and any
person controlling NAAC, from and against any and all losses, claims,
damages
and liabilities caused by any untrue statement or alleged untrue statement
of a
material fact contained in such Swap Financial Disclosure or caused by
any
omission or alleged omission to state in such Swap Financial Disclosure
a
material fact required to be stated therein or necessary to make the
statements
therein, in light of the circumstances under which they were made, not
misleading.
(v) NAAC
shall be an express third party beneficiary of this Agreement as if a
party
hereto to the extent of NAAC’s rights explicitly specified herein.
|
IN
WITNESS WHEREOF the parties have executed this document on
the
respective dates specified below with effect from
the date specified on the first page of this
document.
|
|
NOMURA
GLOBAL FINANCIAL PRODUCTS INC.
By:___________________________________
Name:
Title:
|
HSBC
BANK USA, NATIONAL ASSOCIATION, NOT INDIVIDUALLY, BUT SOLELY
AS TRUSTEE ON
BEHALF OF THE NOMURA ASSET ACCEPTANCE CORPORATION, ALTERNATIVE
LOAN TRUST,
SERIES 2006-WF1, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES
2006-WF1
By:
_________________________________
Name:
Title:
|
|
By:
_____________________________________
Name:
Title:
|
|
NON-NEGOTIABLE
|
[Letterhead
of]
NOMURA
SECURITIES CO., LTD.
GUARANTEE
WHEREAS
Nomura Global Financial Products Inc. (“NGFP) a Delaware corporation is a party
to an ISDA Master Agreement dated as of [_______________________], as
modified,
supplemented and amended in writing from time to time, including by all
Confirmations evidencing Transactions entered into thereunder (collectively,
the
"Agreement"), with [__________________________] (the "Counterparty");
and
WHEREAS,
Nomura Securities Co., Ltd. (“Nomura”) guarantees NGFP in the terms set out in
this document,
WHEREAS,
NGFP and the Counterparty have entered or plan to enter into one or more
Transactions under the Agreement, each evidenced by a Confirmation;
and
WHEREAS,
NGFP may incur monetary, delivery and other obligations to the Counterparty
under the Agreement;
NOW,
THEREFORE, in order to induce the Counterparty to enter into, and in
consideration of the Counterparty having entered into, the
Agreement, Nomura
undertakes as follows:
1. GUARANTEE
(A) Guarantee:
Nomura
hereby unconditionally and irrevocably guarantees
the due and punctual payment or delivery of all monetary and delivery
obligations of NGFP owing to the Counterparty under the Agreement (collectively,
the "Obligations") promptly upon written demand made by the Counterparty
to
Nomura.
(B) Indemnity:
Nomura
agrees as a primary obligation to indemnify the Counterparty from time
to time
on demand from and against any loss incurred by the Counterparty as a
result of
the Obligations being or becoming void, voidable or unenforceable for
any reason
whatsoever, whether or not known to the Counterparty, and the amount
of such
loss shall be the amount which the Counterparty would have otherwise
been
entitled to recover from NGFP. Nomura further agrees that any sums of
money that
are due under this Guarantee and which may not be recoverable from Nomura
as a
result of legal limitation on or disability or incapacity of Nomura or
any other
fact or circumstance, whether or not known to Nomura, shall be recoverable
from
Nomura on an indemnity basis, and Nomura shall for purposes of this Guarantee
be
deemed to be a principal debtor.
(C) Guarantor's
Obligations:
Nomura
waives diligence, presentment, demand of payment from and protest to
NGFP with
respect to the Obligations and also waives notice of dishonor. The obligations
of Nomura under this Guarantee shall not be discharged or impaired or
otherwise
affected by (i) the failure or delay of the Counterparty to assert any
claim or
demand or to enforce any right or remedy against NGFP, or any other indulgence
or concession granted by the Counterparty to NGFP or (ii) any other act,
event
or omission that, but for this provision, would or might operate to discharge,
impair or otherwise affect any of the obligations of Nomura herein contained
or
any of the rights, powers or remedies conferred upon the Counterparty
by
law.
(D) Guarantor
as Principal Debtor:
Nomura
further agrees that this Guarantee constitutes a guarantee of payment
when due
and not of collection. Nomura waives any right to require that any resort
be had
by the Counterparty to any security held by or on behalf of the Counterparty
for
payment of the Obligations, or the Counterparty make demand, proceed
or take any
other steps against NGFP or any other person before claiming under the
Guarantee, or, in the event that NGFP becomes subject to any bankruptcy,
winding-up, administration, reorganization or similar proceeding, that
the
Counterparty file any claim relating to the Obligations.
(E) Waiver
of Defenses:
The
obligations of Nomura under this Guarantee shall not be subject to any
defense
of set-off, counterclaim, recoupment or termination whatsoever by reason
of the
invalidity, illegality or unenforceability of any Obligations, or any
other
defense that constitutes a legal or equitable discharge or defense of
a
guarantor or surety in its capacity as such; provided
that
nothing herein shall limit the ability of Nomura to assert any right
of set-off,
deduction or counterclaim that NGFP or any Affiliate of NGFP is expressly
entitled to assert under the Agreement.
(F) Guarantor's
Obligations Continuing:
The
Guarantee is to be a continuing guarantee and accordingly shall remain
in
operation until such time as Counterparty receives from Nomura written
notice of
termination of this Guarantee and until all Obligations owing in respect
of all
Transactions entered into prior to such termination have been paid or
satisfied.
Nomura further agrees that this Guarantee shall continue to be effective
or be
reinstated, as the case may be, if at any time payment, or any part thereof,
of
any Obligations or interest thereon is avoided, reduced, rescinded or
must
otherwise be restored or returned by the Counterparty upon the bankruptcy,
insolvency, dissolution or reorganization of NGFP, and the Counterparty
shall be
entitled to recover the amount of any such payment from Nomura subsequently
as
if such settlement or discharge had not occurred.
(G) Guarantor's
Right of Subrogation:
Nomura
shall be subrogated to all rights of the Counterparty against NGFP in
respect of
any amounts paid by or deliveries made by Nomura under this Guarantee;
provided
that Nomura shall not be entitled to receive any payments or deliveries
arising
out of, or based upon, such right of subrogation or any right of indemnity
or
other right until the payment of all moneys payable or delivery of all
deliverables under this Guarantee have been made. If upon the bankruptcy,
winding-up, administration, reorganization or similar proceeding of NGFP,
any
payment or distribution of assets of NGFP of any kind or character, whether
in
cash, property or securities, shall be received by Nomura before payment
in full
of all moneys payable or delivery of all deliverables under this Guarantee
shall
have been made to the Counterparty, Nomura will promptly following receipt
thereof pay or deliver such payment or distribution to the Counterparty
for
application to any Obligations owing to the Counterparty, whether matured
or
un-matured.
2. NOTICES
AND COMMUNICATION
Each
notice or communication under this Guarantee shall be made and be effective
as
provided in Section 12 of the Agreement as though references in that
Section to
the Agreement were to this Guarantee and references to the Counterparty
or NGFP
were to the Counterparty or Nomura, respectively, provided that the address
and
telex number for Nomura shall be:
General
Manager
Controller’s
Department,
Nomura
Securities Co., Ltd.
9-1,
Xxxxxxxxxx 0-xxxxx, Xxxx-xx, Xxxxx, 000-0000 Xxxxx
Telex:
J22392 Answerback:
NOMURASH
3. SUCCESSORS
AND ASSIGNS
(A)
This
Guarantee shall be binding on Nomura and its successors and permitted
assigns
and shall benefit the Counterparty and the Counterparty’s successors and
permitted assigns. Any reference to Nomura and Counterparty shall be
construed
accordingly.
(B)
Nomura may not transfer all or part of its obligations under this Guarantee
without the prior written consent of the Counterparty.
4. GROSS
UP
All
sums
payable by Nomura hereunder shall be made in freely transferable, cleared
and
immediately available funds without any set-off, deduction or withholding
unless
such set-off, deduction or withholding is required by an applicable law,
judicial or administrative decision, or practice of any relevant governmental
authority, or by any combination thereof. If Nomura is so required to
set-off,
deduct or withhold then Nomura shall pay to the Counterparty, in addition
to the
payment to which the Counterparty is otherwise entitled hereunder, such
additional amount as is necessary to ensure that the net amount actually
received by the Counterparty (free and clear of any such set-off, deduction
or
withholding) will equal the full amount which the Counterparty would
have
received had no such set-off, deduction or withholding been required;
provided,
however, that Nomura will not be required to pay any additional amounts
(i) in
connection with any deduction or withholding in respect of which had
NGFP made
the payment in respect of which such deduction or withholding is or would
have
been required to have been made, NGFP would not have been required pursuant
to
Section 2(d)(i)(4) of the Agreement to pay additional amounts to the
Counterparty, or (ii) to the extent that such additional amount would
not be
required to be paid but for the failure by the Counterparty to furnish
any form,
document or certificate that may be required or reasonably requested
by Nomura
in order to allow Nomura to make a payment under this Guarantee, or to
allow
Nomura to make a payment under or in respect of the Agreement or any
Transaction
on behalf of NGFP, without any deduction or withholding for or on account
of any
Tax or with such deduction or withholding at a reduced rate (so long
as the
completion, execution or submission of such form, document or certificate
would
not materially prejudice the legal or commercial position of the
Counterparty).
5. REPRESENTATIONS
Nomura
represents to the Counterparty that (i) Nomura has the corporate power
to
execute, deliver and perform this Guarantee, (ii) Nomura has taken all
necessary
action to authorize the execution, delivery and performance of this Guarantee,
(iii) the execution, delivery and performance of this Guarantee by Nomura
will
not violate any provision of law applicable to Nomura, its articles of
incorporation or any agreement to which Nomura is a party, (iv) no
authorizations of, exemptions by and filings with any governmental or
other
authority are required to be obtained or made by Nomura with respect
to this
Guarantee and Nomura will use all reasonable efforts to obtain or make
(and to
maintain in full force and effect) any that may become necessary after
the date
of this Guarantee,
and (v) this Guarantee constitutes the legal, valid and binding obligation
of
Nomura, enforceable against Nomura in accordance with its terms.
6. EXPENSES
Nomura
will, on five business days’ notice in writing from the Counterparty, indemnify
and hold harmless the Counterparty for and against all reasonable out-of-pocket
expenses, including legal fees and Stamp Tax, incurred by the Counterparty
by
reason of the enforcement and protection of its rights under this Guarantee,
including, but not limited to, cost of collection, provided, however,
that
Nomura shall not be liable for any expenses of the Counterparty if no
payment is
due under this Guarantee.
7. GOVERNING
LAW
This
Guarantee shall be governed by and construed in accordance with the laws
of the
State of New York, without giving effect to choice of law doctrine.
8. JURISDICTION
With
respect to any suit, action or proceedings relating to this Guarantee
("Proceedings"), each of Nomura and the Counterparty, by its acceptance
hereof,
irrevocably:
(i)
submits
to the jurisdiction of the courts of the State of New York and the United
States
District Court located in the Borough of Manhattan in New York City.
(ii)
waives
any objection which it may have at any time to the laying of venue of
any
Proceedings brought in any such court, waives any claim that such Proceedings
have been brought in an inconvenient forum and further waives the right
to
object, with respect to such Proceedings, that such court does not have
jurisdiction over such party; and
(iii)
waives
its right to jury trial with respect to any obligation arising under,
or in
connection with, this Guarantee.
Nothing
in this Guarantee precludes either party from bringing Proceedings in
any other
jurisdiction nor will the bringing of Proceedings in any one or more
jurisdictions preclude the bringing of Proceedings in any other
jurisdiction.
9. AGENT
FOR SERVICE OF PROCESS
Nomura
irrevocably appoints Nomura Securities International, Inc., Attention:
General
Counsel, 2 World Financial Xxxxxx, Xxxxxxxx X, 00xx Xxxxx, Xxx Xxxx,
Xxx Xxxx
00000-0000, to receive, for it and on its behalf, service of process
in any
Proceedings. If for any reason Nomura Securities International Inc.,
is unable
to act as such, Nomura will promptly notify the Counterparty and within
30 days
appoint a substitute process agent acceptable to the Counterparty. Nomura
irrevocably consents to service of process given in the manner provided
for
notices in Section 2 hereof. Nothing in this Guarantee will affect the
right of
the Counterparty to serve process in any other manner permitted by
law.
10. GENERAL
(A) Section
8
(Contractual Currency) and Sections 9(a)-(d) and (f)-(g) (Miscellaneous)
of the
Agreement shall apply to this Guarantee and Nomura as though references
in those
Sections of the Agreement to the “Agreement” were to this Guarantee.
(B)
Italicized
terms used but not defined herein have the respective meanings given
to such
terms in the Agreement. As used in this Guarantee, the term “business day” means
a day on which commercial banks and foreign exchange markets settle payments
both in Tokyo and in the financial center for the settlement
currency.
IN
WITNESS WHEREOF, Nomura has executed this Guarantee as of
[____________________________].
NOMURA
SECURITIES CO., LTD.
|
By:
|
|||
|
|
|||
|
Name:
Title:
|
EXHIBIT
X-1
FORM
OF SERVICING CRITERIA
|
Standard
File Layout - Master Servicing
|
||||
|
Column
Name
|
Description
|
Decimal
|
Format
Comment
|
Max
Size
|
|
SER_INVESTOR_NBR
|
A
value assigned by the Servicer to define a group of loans.
|
|
Text
up to 10 digits
|
20
|
|
LOAN_NBR
|
A
unique identifier assigned to each loan by the investor.
|
|
Text
up to 10 digits
|
10
|
|
SERVICER_LOAN_NBR
|
A
unique number assigned to a loan by the Servicer. This may be different
than the LOAN_NBR.
|
|
Text
up to 10 digits
|
10
|
|
BORROWER_NAME
|
The
borrower name as received in the file. It is not separated by first
and
last name.
|
|
Maximum
length of 30 (Last, First)
|
30
|
|
SCHED_PAY_AMT
|
Scheduled
monthly principal and scheduled interest payment that a borrower
is
expected to pay, P&I constant.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
NOTE_INT_RATE
|
The
loan interest rate as reported by the Servicer.
|
4
|
Max
length of 6
|
6
|
|
NET_INT_RATE
|
The
loan gross interest rate less the service fee rate as reported
by the
Servicer.
|
4
|
Max
length of 6
|
6
|
|
SERV_FEE_RATE
|
The
servicer's fee rate for a loan as reported by the Servicer.
|
4
|
Max
length of 6
|
6
|
|
SERV_FEE_AMT
|
The
servicer's fee amount for a loan as reported by the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
NEW_PAY_AMT
|
The
new loan payment amount as reported by the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
NEW_LOAN_RATE
|
The
new loan rate as reported by the Servicer.
|
4
|
Max
length of 6
|
6
|
|
ARM_INDEX_RATE
|
The
index the Servicer is using to calculate a forecasted
rate.
|
4
|
Max
length of 6
|
6
|
|
ACTL_BEG_PRIN_BAL
|
The
borrower's actual principal balance at the beginning of the processing
cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
ACTL_END_PRIN_BAL
|
The
borrower's actual principal balance at the end of the processing
cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
BORR_NEXT_PAY_DUE_DATE
|
The
date at the end of processing cycle that the borrower's next payment
is
due to the Servicer, as reported by Servicer.
|
|
MM/DD/YYYY
|
10
|
|
SERV_CURT_AMT_1
|
The
first curtailment amount to be applied.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT_DATE_1
|
The
curtailment date associated with the first curtailment amount.
|
|
MM/DD/YYYY
|
10
|
|
CURT_ADJ_
AMT_1
|
The
curtailment interest on the first curtailment amount, if
applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT_AMT_2
|
The
second curtailment amount to be applied.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT_DATE_2
|
The
curtailment date associated with the second curtailment
amount.
|
|
MM/DD/YYYY
|
10
|
|
CURT_ADJ_
AMT_2
|
The
curtailment interest on the second curtailment amount, if
applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT_AMT_3
|
The
third curtailment amount to be applied.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT_DATE_3
|
The
curtailment date associated with the third curtailment
amount.
|
|
MM/DD/YYYY
|
10
|
|
CURT_ADJ_AMT_3
|
The
curtailment interest on the third curtailment amount, if
applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
PIF_AMT
|
The
loan "paid in full" amount as reported by the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
PIF_DATE
|
The
paid in full date as reported by the Servicer.
|
|
MM/DD/YYYY
|
10
|
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Action
Code Key: 15=Bankruptcy, 00xXxxxxxxxxxx, , 00xXXX, 63=Substitution,
65=Repurchase,70=REO
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2
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ACTION_CODE
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The
standard FNMA numeric code used to indicate the default/delinquent
status
of a particular loan.
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INT_ADJ_AMT
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The
amount of the interest adjustment as reported by the
Servicer.
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2
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No
commas(,) or dollar signs ($)
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11
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SOLDIER_SAILOR_ADJ_AMT
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The
Soldier and Sailor Adjustment amount, if applicable.
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2
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No
commas(,) or dollar signs ($)
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11
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NON_ADV_LOAN_AMT
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The
Non Recoverable Loan Amount, if applicable.
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2
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No
commas(,) or dollar signs ($)
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11
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LOAN_LOSS_AMT
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The
amount the Servicer is passing as a loss, if applicable.
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2
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No
commas(,) or dollar signs ($)
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11
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SCHED_BEG_PRIN_BAL
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The
scheduled outstanding principal amount due at the beginning of
the cycle
date to be passed through to investors.
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2
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No
commas(,) or dollar signs ($)
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11
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SCHED_END_PRIN_BAL
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The
scheduled principal balance due to investors at the end of a processing
cycle.
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2
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No
commas(,) or dollar signs ($)
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11
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SCHED_PRIN_AMT
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The
scheduled principal amount as reported by the Servicer for the
current
cycle -- only applicable for Scheduled/Scheduled Loans.
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2
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No
commas(,) or dollar signs ($)
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11
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SCHED_NET_INT
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The
scheduled gross interest amount less the service fee amount for
the
current cycle as reported by the Servicer -- only applicable for
Scheduled/Scheduled Loans.
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2
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No
commas(,) or dollar signs ($)
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11
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ACTL_PRIN_AMT
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The
actual principal amount collected by the Servicer for the current
reporting cycle -- only applicable for Actual/Actual
Loans.
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2
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No
commas(,) or dollar signs ($)
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11
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ACTL_NET_INT
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The
actual gross interest amount less the service fee amount for the
current
reporting cycle as reported by the Servicer -- only applicable
for
Actual/Actual Loans.
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2
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No
commas(,) or dollar signs ($)
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11
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PREPAY_PENALTY_
AMT
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The
penalty amount received when a borrower prepays on his loan as
reported by
the Servicer.
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2
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No
commas(,) or dollar signs ($)
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11
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PREPAY_PENALTY_
WAIVED
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The
prepayment penalty amount for the loan waived by the
servicer.
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2
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No
commas(,) or dollar signs ($)
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11
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MOD_DATE
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The
Effective Payment Date of the Modification for the loan.
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MM/DD/YYYY
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10
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MOD_TYPE
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The
Modification Type.
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Varchar
- value can be alpha or numeric
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30
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DELINQ_P&I_ADVANCE_AMT
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The
current outstanding principal and interest advances made by
Servicer.
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2
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No
commas(,) or dollar signs ($)
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11
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Exhibit: Standard
File Layout - Delinquency Reporting
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Tab
1
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Fields
for Tab 1
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Fields
for Tab 2 thru Tab 7
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Summary
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Investor
Number
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CHL
Loan No
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Portfolio
Balance
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Investor
No
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Tab
2
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Loan
Count
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Investor
Block No
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Normal
Servicing
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Delinquencies
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Investor
Loan No
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30
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Borrower
Name
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Tab
3
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60
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CoBorrower
Name
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DEL
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90
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State
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120
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Original
Balance
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Tab
4
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120+
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Current
Balance
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BK
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FC
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Escrow
Balance
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BK
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Paid
To Date
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Tab
5
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WO
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No
Days Delinquent
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FC
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REO
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Next
Due Date
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Totals
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Status
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Tab
6
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Monthly
Payment
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WO
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Delinquent
Payment Balance
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First
Due Date
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Tab
7
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Date
Mortgage Recorded
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REO
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Lien
Position
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Reason
for Default
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Property
Condition
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Occupancy
Status
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Refered
to Attorney
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FC
Sale Date
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Notice
of Default
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1st
Legal Action
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BPO
Amount
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BPO
Dt
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Bankruptcy
Case No
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Chapter
No
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Discharge
Dt
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Proof
of Claim Filed
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Motion
Filed Dt
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BK
Filing Dt
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BK
Setup Dt
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Hearing
Dt
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Confirmation
Dt
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Post
Petition Payed to Dt
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Investor
Name
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Warning
Code
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Lockout
Code
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Address
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CityState
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ZipCode
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Appraisal
Amount
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Appraisal
Date
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MI
Company
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MI
Covereage %
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Original
Loan Amount
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Interest
Rate
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Servicing
Fee
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PI
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Maturity_Date
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Loan
Term
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Property
Type
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Original
Purchase Price
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Purpose
of Loan
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Borrower
Social Security
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Original
FICO
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ARM
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MARGIN
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Arm
Index
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ARM
Rounding Feature
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Next
Interest Rate_Change
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Rate
Adjustment Cap
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Lifetime
Caps
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EXHIBIT
X-2
Exhibit
2: Standard
File Codes - Delinquency Reporting
The
Loss
Mit Type
field
should show the approved Loss Mitigation Code as follows:
| · |
ASUM-Approved
Assumption
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| · |
BAP-Borrower
Assistance Program
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| · |
CO-
Charge Off
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| · |
DIL-
Deed-in-Lieu
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| · |
FFA-
Formal Forbearance Agreement
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MOD-
Loan Modification
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PRE-
Pre-Sale
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SS-
Short Sale
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MISC-Anything
else approved by the PMI or Pool
Insurer
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NOTE:
Xxxxx
Fargo Bank will accept alternative Loss Mitigation Types to those above,
provided that they are consistent with industry standards. If Loss Mitigation
Types other than those above are used, the Servicer must supply Xxxxx Fargo
Bank
with a description of each of the Loss Mitigation Types prior to sending
the
file.
The
Occupant
Code
field
should show the current status of the property code as follows:
| · |
Mortgagor
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Tenant
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Unknown
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| · |
Vacant
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The
Property
Condition
field
should show the last reported condition of the property as follows:
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Damaged
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Excellent
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Fair
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Gone
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Good
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Poor
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Special
Hazard
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Unknown
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Exhibit
2: Standard
File Codes - Delinquency Reporting, Continued
The
FNMA
Delinquent Reason Code
field
should show the Reason for Delinquency as follows:
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Delinquency
Code
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Delinquency
Description
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001
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FNMA-Death
of principal mortgagor
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002
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FNMA-Illness
of principal mortgagor
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003
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FNMA-Illness
of mortgagor’s family member
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004
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FNMA-Death
of mortgagor’s family member
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005
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FNMA-Marital
difficulties
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006
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FNMA-Curtailment
of income
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007
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FNMA-Excessive
Obligation
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008
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FNMA-Abandonment
of property
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009
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FNMA-Distant
employee transfer
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011
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FNMA-Property
problem
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012
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FNMA-Inability
to sell property
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013
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FNMA-Inability
to rent property
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014
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FNMA-Military
Service
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015
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FNMA-Other
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016
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FNMA-Unemployment
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017
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FNMA-Business
failure
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019
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FNMA-Casualty
loss
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022
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FNMA-Energy
environment costs
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023
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FNMA-Servicing
problems
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026
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FNMA-Payment
adjustment
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027
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FNMA-Payment
dispute
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029
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FNMA-Transfer
of ownership pending
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030
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FNMA-Fraud
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031
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FNMA-Unable
to contact borrower
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INC
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FNMA-Incarceration
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Exhibit
2: Standard
File Codes - Delinquency Reporting, Continued
The
FNMA
Delinquent Status Code
field
should show the Status of Default as follows:
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Status
Code
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Status
Description
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09
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Forbearance
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17
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Pre-foreclosure
Sale Closing Plan Accepted
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24
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Government
Seizure
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26
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Refinance
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27
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Assumption
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28
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Modification
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29
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Charge-Off
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30
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Third
Party Sale
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31
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Probate
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32
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Military
Indulgence
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43
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Foreclosure
Started
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44
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Deed-in-Lieu
Started
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49
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Assignment
Completed
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61
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Second
Lien Considerations
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62
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Veteran’s
Affairs-No Bid
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63
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Veteran’s
Affairs-Refund
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64
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Veteran’s
Affairs-Buydown
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65
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Chapter
7 Bankruptcy
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66
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Chapter
11 Bankruptcy
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67
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Chapter
13 Bankruptcy
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Exhibit
: Calculation
of Realized Loss/Gain Form 332- Instruction Sheet
NOTE:
Do not net or combine items. Show all expenses individually and all credits
as
separate line items. Claim packages are due on the remittance report date.
Late
submissions may result in claims not being passed until the following month.
The
Servicer is responsible to remit all funds pending loss approval and /or
resolution of any disputed items.
1.
2. The
numbers on the 332 form correspond with the numbers listed below.
Liquidation
and Acquisition Expenses:
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1.
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The
Actual Unpaid Principal Balance of the Mortgage Loan. For documentation,
an Amortization Schedule from date of default through liquidation
breaking
out the net interest and servicing fees advanced is
required.
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2.
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The
Total Interest Due less the aggregate amount of servicing
fee that would
have been earned if all delinquent payments had been made
as agreed. For
documentation, an Amortization Schedule from date of default
through
liquidation breaking out the net interest and servicing fees
advanced is
required.
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3.
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Accrued
Servicing Fees based upon the Scheduled Principal Balance
of the Mortgage
Loan as calculated on a monthly basis. For documentation,
an Amortization
Schedule from date of default through liquidation breaking
out the net
interest and servicing fees advanced is
required.
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4-12.
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Complete
as applicable. Required
documentation:
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*
For
taxes and insurance advances - see page 2 of 332 form - breakdown required
showing period
of
coverage, base tax, interest, penalty. Advances prior to default require
evidence of servicer efforts to recover advances.
*
For
escrow advances - complete payment history
(to
calculate advances from last positive escrow balance forward)
*
Other
expenses - copies of corporate advance history showing all payments
*
REO
repairs > $1500 require explanation
*
REO
repairs >$3000 require evidence of at least 2 bids.
*
Short
Sale or Charge Off require P&L supporting the decision and
WFB’s approved Officer Certificate
*
Unusual
or extraordinary items may require further documentation.
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13.
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The
total of lines 1 through
12.
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3.
Credits:
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14-21.
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Complete
as applicable. Required
documentation:
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*
Copy of
the HUD 1 from the REO sale. If a 3rd
Party
Sale, bid instructions and Escrow
Agent / Attorney
Letter
of
Proceeds
Breakdown.
*
Copy of
EOB for any MI or gov't guarantee
*
All
other credits need to be clearly defined on the 332
form
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22.
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The
total of lines 14 through 21.
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Please
Note: For
HUD/VA loans, use line (18a) for Part A/Initial proceeds and line (18b) for
Part
B/Supplemental proceeds.
Total
Realized Loss (or Amount of Any Gain)
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23.
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The
total derived from subtracting line 22 from 13. If the amount
represents a
realized gain, show
the amount in parenthesis ( ).
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Exhibit
3A: Calculation
of Realized Loss/Gain Form 332
Prepared
by: __________________ Date:
_______________
Phone:
______________________ Email Address:_____________________
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Servicer
Loan No.
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Servicer
Name
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Servicer
Address
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XXXXX
FARGO BANK, N.A. Loan No._____________________________
Borrower's
Name: _________________________________________________________
Property
Address: _________________________________________________________
Liquidation
Type: REO Sale
3rd
Party Sale Short
Sale Charge
Off
Was
this loan granted a Bankruptcy deficiency or cramdown Yes
No
If
“Yes”,
provide deficiency or cramdown amount
_______________________________
Liquidation
and Acquisition Expenses:
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(1)
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Actual
Unpaid Principal Balance of Mortgage Loan
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$ |
(1)
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(2)
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Interest
accrued at Net Rate
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(2)
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(3)
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Accrued
Servicing Fees
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(3)
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(4)
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Attorney's
Fees
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(4)
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(5)
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Taxes
(see page 2)
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(5)
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(6)
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Property
Maintenance
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(6)
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(7)
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MI/Hazard
Insurance Premiums (see page 2)
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(7)
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(8)
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Utility
Expenses
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(8)
|
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(9)
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Appraisal/BPO
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(9)
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(10)
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Property
Inspections
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(10)
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(11)
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FC
Costs/Other Legal Expenses
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(11)
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(12)
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Other
(itemize)
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(12)
|
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Cash
for Keys
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(12)
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HOA/Condo
Fees
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(12)
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(12)
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Total
Expenses
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$ |
(13)
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Credits:
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(14)
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Escrow
Balance
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$
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(14)
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(15)
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HIP
Refund
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(15)
|
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(16)
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Rental
Receipts
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(16)
|
||||
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(17)
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Hazard
Loss Proceeds
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(17)
|
||||
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(18)
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Primary
Mortgage Insurance / Gov’t Insurance
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|
(18a) | ||||
|
HUD
Part A
|
|||||||
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HUD
Part B
|
(18b) | ||||||
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(19)
|
Pool
Insurance Proceeds
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(19)
|
||||
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(20)
|
Proceeds
from Sale of Acquired Property
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|
(20)
|
||||
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(21)
|
Other
(itemize)
|
|
(21)
|
||||
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|
(21)
|
||||
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Total
Credits
|
$
|
(22)
|
|||||
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Total
Realized Loss (or Amount of Gain)
|
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|
$
|
(23)
|
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Escrow
Disbursement Detail
|
Type
(Tax
/Ins.)
|
Date
Paid
|
Period
of Coverage
|
Total
Paid
|
Base
Amount
|
Penalties
|
Interest
|
