NOMURA ASSET ACCEPTANCE CORPORATION,
Depositor
NOMURA CREDIT & CAPITAL, INC.,
Seller
OPTION ONE MORTGAGE CORPORATION,
a Servicer
GMAC MORTGAGE CORPORATION
a Servicer
and
JPMORGAN CHASE BANK,
Trustee and Custodian
____________________
POOLING AND SERVICING AGREEMENT
Dated as of February 1, 2004
________________________________________
NOMURA ASSET ACCEPTANCE CORPORATION
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2004-AP1
TABLE OF CONTENTS
Page
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ARTICLE I
Section 1.01 DEFINED TERMS....................................................................................9
Section 1.02 ALLOCATION OF CERTAIN INTEREST SHORTFALLS.......................................................48
ARTICLE II
Section 2.01 CONVEYANCE OF TRUST FUND........................................................................49
Section 2.02 ACCEPTANCE OF THE MORTGAGE LOANS................................................................50
Section 2.03 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SERVICERS AND THE SELLER.......................52
Section 2.04 Representations and Warranties of the Depositor.................................................59
Section 2.05 DELIVERY OF OPINION OF COUNSEL IN CONNECTION WITH SUBSTITUTIONS AND REPURCHASES.................60
Section 2.06 ISSUANCE OF THE REMIC I REGULAR INTERESTS AND THE CLASS R-1 INTEREST............................61
Section 2.07 CONVEYANCE OF THE REMIC I REGULAR INTERESTS; ACCEPTANCE OF REMIC II BY THE TRUSTEE..............61
Section 2.08 CONVEYANCE OF THE REMIC II REGULAR INTERESTS; ACCEPTANCE OF REMIC III BY THE TRUSTEE............62
Section 2.09 ISSUANCE OF CLASS R CERTIFICATES................................................................62
Section 2.10 ESTABLISHMENT OF TRUST..........................................................................62
ARTICLE III
Section 3.01 SERVICER TO ACT AS SERVICERS....................................................................63
Section 3.02 DUE-ON-SALE CLAUSES; ASSUMPTION AGREEMENTS......................................................65
Section 3.03 SUBSERVICERS....................................................................................66
Section 3.04 DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF A SERVICER TO BE HELD FOR TRUSTEE.................67
Section 3.05 MAINTENANCE OF HAZARD INSURANCE.................................................................67
Section 3.06 PRESENTMENT OF CLAIMS AND COLLECTION OF PROCEEDS................................................69
Section 3.07 MAINTENANCE OF INSURANCE POLICIES...............................................................69
Section 3.08 RESERVED........................................................................................69
Section 3.09 REALIZATION UPON DEFAULTED MORTGAGE LOANS; DETERMINATION OF EXCESS LIQUIDATION PROCEEDS AND
REALIZED LOSSES; REPURCHASES OF CERTAIN MORTGAGE LOANS........................................................69
Section 3.10 SERVICING COMPENSATION..........................................................................72
Section 3.11 REO PROPERTY....................................................................................72
Section 3.12 LIQUIDATION REPORTS.............................................................................73
Section 3.13 ANNUAL CERTIFICATE AS TO COMPLIANCE.............................................................73
Section 3.14 ANNUAL INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS' SERVICING REPORT...............................74
Section 3.15 BOOKS AND RECORDS...............................................................................74
Section 3.16 TRUSTEE.........................................................................................75
Section 3.17 REMIC-RELATED COVENANTS.........................................................................75
Section 3.18 ENFORCING OBLIGATIONS OF THE SERVICERS..........................................................75
Section 3.19 RELEASE OF MORTGAGE FILES.......................................................................76
Section 3.20 DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF A SERVICER TO BE HELD FOR TRUSTEE.................77
Section 3.21 POSSESSION OF CERTAIN INSURANCE POLICIES AND DOCUMENTS..........................................77
Section 3.22 ANNUAL CERTIFICATE AS TO COMPLIANCE.............................................................77
Section 3.23 UCC.............................................................................................79
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Section 3.24 OPTIONAL PURCHASE OF DEFAULTED MORTGAGE LOANS...................................................79
ARTICLE IV
Section 4.01 COLLECTION OF MORTGAGE LOAN PAYMENTS; CUSTODIAL ACCOUNT.........................................80
Section 4.02 PERMITTED WITHDRAWALS FROM THE CUSTODIAL ACCOUNT................................................82
Section 4.03 REPORTS TO TRUSTEE..............................................................................84
Section 4.04 COLLECTION OF TAXES; ASSESSMENTS AND SIMILAR ITEMS; ESCROW ACCOUNTS.............................84
Section 4.05 RESERVED........................................................................................85
Section 4.06 DISTRIBUTION ACCOUNT............................................................................85
Section 4.07 PERMITTED WITHDRAWALS AND TRANSFERS FROM THE DISTRIBUTION ACCOUNT...............................86
Section 4.08 DUTIES OF THE CREDIT RISK MANAGER; TERMINATION..................................................88
Section 4.09 LIMITATION UPON LIABILITY OF THE CREDIT RISK MANAGER............................................88
ARTICLE V
Section 5.01 ADVANCES; ADVANCE FACILITY......................................................................90
Section 5.02 COMPENSATING INTEREST PAYMENTS..................................................................93
Section 5.03 REMIC DISTRIBUTIONS.............................................................................93
Section 5.04 DISTRIBUTIONS...................................................................................94
Section 5.05 ALLOCATION OF REALIZED LOSSES...................................................................97
Section 5.06 MONTHLY STATEMENTS TO CERTIFICATEHOLDERS........................................................99
Section 5.07 REMIC DESIGNATIONS AND REMIC I ALLOCATIONS....................................................101
Section 5.08 REMIC II ALLOCATIONS...........................................................................102
Section 5.09 Class P Certificate Account....................................................................104
Section 5.10 Net WAC Reserve Fund...........................................................................104
ARTICLE VI
Section 6.01 THE CERTIFICATES...............................................................................106
Section 6.02 CERTIFICATE REGISTER; REGISTRATION OF TRANSFER AND EXCHANGE OF CERTIFICATES....................106
Section 6.03 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES..............................................110
Section 6.04 PERSONS DEEMED OWNERS..........................................................................110
Section 6.05 ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND ADDRESSES......................................110
Section 6.06 BOOK-ENTRY CERTIFICATES........................................................................111
Section 6.07 NOTICES TO DEPOSITORY..........................................................................112
Section 6.08 DEFINITIVE CERTIFICATES........................................................................112
Section 6.09 MAINTENANCE OF OFFICE OR AGENCY................................................................112
ARTICLE VII
Section 7.01 LIABILITIES OF THE DEPOSITOR AND THE SERVICERS.................................................114
Section 7.02 MERGER OR CONSOLIDATION OF THE DEPOSITOR OR THE SERVICERS......................................114
Section 7.03 INDEMNIFICATION OF DEPOSITOR AND EACH SERVICER.................................................114
Section 7.04 LIMITATIONS ON LIABILITY OF THE DEPOSITOR, THE SERVICERS AND OTHERS............................115
Section 7.05 SERVICERS NOT TO RESIGN........................................................................116
Section 7.06 TERMINATION OF SERVICERS WITHOUT CAUSE.........................................................116
ARTICLE VIII
Section 8.01 SERVICER DEFAULT...............................................................................118
Section 8.02 TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR.......................................................119
Section 8.03 NOTIFICATION TO CERTIFICATEHOLDERS.............................................................121
Section 8.04 WAIVER OF SERVICER DEFAULTS....................................................................121
ARTICLE IX
Section 9.01 DUTIES OF TRUSTEE..............................................................................122
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Section 9.02 CERTAIN MATTERS AFFECTING THE TRUSTEE..........................................................123
Section 9.03 TRUSTEE NOT LIABLE FOR CERTIFICATES OR MORTGAGE LOANS..........................................125
Section 9.04 TRUSTEE MAY OWN CERTIFICATES...................................................................126
Section 9.05 TRUSTEE'S COMPENSATION AND EXPENSES; INDEMNIFICATION...........................................126
Section 9.06 ELIGIBILITY REQUIREMENTS FOR TRUSTEE...........................................................127
Section 9.07 INSURANCE......................................................................................127
Section 9.08 RESIGNATION AND REMOVAL OF TRUSTEE.............................................................127
Section 9.09 SUCCESSOR TRUSTEE..............................................................................128
Section 9.10 MERGER OR CONSOLIDATION OF TRUSTEE.............................................................128
Section 9.11 APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE..................................................128
Section 9.12 TAX MATTERS....................................................................................130
Section 9.13 CUSTODIAN'S FEES AND EXPENSES..................................................................132
Section 9.14 INDEMNIFICATION OF CUSTODIAN...................................................................132
Section 9.15 RELIANCE OF CUSTODIAN..........................................................................132
ARTICLE X
Section 10.01 TERMINATION UPON LIQUIDATION OR REPURCHASE OF ALL MORTGAGE LOANS..............................135
Section 10.02 FINAL DISTRIBUTION ON THE CERTIFICATES........................................................135
Section 10.03 ADDITIONAL TERMINATION REQUIREMENTS...........................................................136
ARTICLE XI
Section 11.01 AMENDMENT.....................................................................................138
Section 11.02 RECORDATION OF AGREEMENT; COUNTERPARTS........................................................139
Section 11.03 GOVERNING LAW.................................................................................139
Section 11.04 INTENTION OF PARTIES..........................................................................139
Section 11.05 NOTICES.......................................................................................140
Section 11.06 SEVERABILITY OF PROVISIONS....................................................................141
Section 11.07 ASSIGNMENT....................................................................................141
Section 11.08 LIMITATION ON RIGHTS OF CERTIFICATEHOLDERS....................................................141
Section 11.09 CERTIFICATES NONASSESSABLE AND FULLY PAID.....................................................142
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EXHIBITS
Exhibit A-1 Form of Class A-[1][2][3][4A][4B][5][6] Certificates
Exhibit A-2 Form of Class A-IO Certificates
Exhibit A-3 Form of Class M-[1][2][3] Certificates
Exhibit A-4 Form of Class C Certificates
Exhibit A-5 Form of Class P Certificates
Exhibit A-6 Form of Class R Certificates
Exhibit B Mortgage Loan Schedule
Exhibit C-1 Form of Initial Certification
Exhibit C-2 Form of Interim Certification
Exhibit C-3 Form of Final Certification
Exhibit D Form of Transfer Affidavit
Exhibit E Form of Transferor Certificate
Exhibit F Form of Investment Letter (Non-Rule 144A)
Exhibit G Form of Rule 144A Investment Letter
Exhibit H Form of Request for Release
Exhibit I DTC Letter of Representations
Exhibit J Schedule of Mortgage Loans with Lost Notes
Exhibit K Prepayment Charge Schedule
Exhibit L Form of Servicer's Certification
Exhibit M Form of Trustee's Certification
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POOLING AND SERVICING AGREEMENT, dated as of February 1, 2004, among
NOMURA ASSET ACCEPTANCE CORPORATION, a Delaware corporation, as depositor (the
"Depositor"), NOMURA CREDIT & CAPITAL, INC., a Delaware corporation, as seller
(in such capacity, the "Seller"), OPTION ONE MORTGAGE CORPORATION, a California
corporation, as a servicer ("Option One"), GMAC MORTGAGE CORPORATION, a
Pennsylvania corporation, as a servicer ("GMAC"; and together with Option One,
the "Servicers") and JPMORGAN CHASE BANK, a New York banking corporation, not in
its individual capacity, but solely as trustee (the "Trustee") and as custodian
(the "Custodian").
PRELIMINARY STATEMENT
The Depositor is the owner of the Trust Fund that is hereby conveyed to
the Trustee in return for the Certificates.
REMIC I
-------
As provided herein, the Trustee will make an election to treat the
segregated pool of assets consisting of the Mortgage Loans and certain other
related assets subject to this Agreement as a real estate mortgage investment
conduit (a "REMIC") for federal income tax purposes, and such segregated pool of
assets will be designated as "REMIC I." The Class R-1 Interest will represent
the sole class of "residual interests" in REMIC I for purposes of the REMIC
Provisions (as defined herein) under federal income tax law. The following table
irrevocably sets forth the designation, the Uncertificated REMIC I Pass-Through
Rate, the Initial Uncertificated Principal Balance, and solely for purposes of
satisfying Treasury regulation Section 1.860G-1(a)(4)(iii), the "latest possible
maturity date" for each of the REMIC I Regular Interests. None of the REMIC I
Regular Interests will be certificated.
Initial Uncertificated Uncertificated REMIC I Assumed Final Maturity
Designation Principal Balance Pass-Through Rate Date(1)
----------- ----------------- ----------------- -------
LTI-1 $207,608,092.78 Xxxxxxxx(0) Xxxxx 00, 0000
XXX-XX-X $6,600,000.00 Variable(2) Xxxxx 00, 0000
XXX-XX-X $6,000,000.00 Xxxxxxxx(0) Xxxxx 00, 0000
XXX-XX-X $6,000,000.00 Xxxxxxxx(0) Xxxxx 00, 0000
XXX-XX-X $600,000.00 Xxxxxxxx(0) Xxxxx 00, 0000
XXX-XX-X $13,200,000.00 Xxxxxxxx(0) Xxxxx 00, 0000
XXX-X $100.00 (3) March 25, 2034
___________________
(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date in the month following the maturity
date for the Mortgage Loan with the latest maturity date has been
designated as the "latest possible maturity date" for each Class of
Certificates that represents one or more of the "regular interests" in
REMIC I.
(2) Calculated in accordance with the definition of "Uncertificated REMIC I
Pass-Through Rate" herein.
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REMIC II
--------
As provided herein, the Trustee will elect 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 be the sole class of "residual
interests" in REMIC II for purposes of the REMIC Provisions. The following table
irrevocably sets forth the designation, the Uncertificated REMIC II Pass-Through
Rate, the Initial Uncertificated Principal Balance and, solely for purposes of
satisfying Treasury regulation Section 1.860G-1(a)(4)(iii), the "latest possible
maturity date" for each of the REMIC II Regular Interests (as defined herein).
None of the REMIC II Regular Interests will be certificated.
Uncertificated
Initial Undertificated REMIC II Assumed Final Maturity
Designation Principal Balance Pass-Through Rate Date(1)
----------- ----------------- ----------------- -------
LTII-AA $235,207,930.92 Xxxxxxxx(0) Xxxxx 00, 0000
XXXX-X0 $846,210.00 Xxxxxxxx(0) Xxxxx 00, 0000
XXXX-X0 $232,550.00 Xxxxxxxx(0) Xxxxx 00, 0000
XXXX-X0 $438,410.00 Xxxxxxxx(0) Xxxxx 00, 0000
XXXX-X0X $100,000.00 Xxxxxxxx(0) Xxxxx 00, 0000
XXXX-X0X $198,840.00 Xxxxxxxx(0) Xxxxx 00, 0000
XXXX-X0 $203,590.00 Xxxxxxxx(0) Xxxxx 00, 0000
XXXX-X0 $240,000.00 Xxxxxxxx(0) Xxxxx 00, 0000
XXXX-X0 $60,000.00 Xxxxxxxx(0) Xxxxx 00, 0000
XXXX-X0 $45,600.00 Xxxxxxxx(0) Xxxxx 00, 0000
XXXX-X0 $22,800.00 Variable(2) March 25, 2034
LTII-ZZ $2,412,161.86 Variable(2) March 25, 2034
LTII-IO(3) N/A(4) 5.00%(2) Xxxxx 00, 0000
XXXX-X $100 Variable(2) March 25, 2034
___________________
(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date in the month following the maturity
date for the Mortgage Loan with the latest maturity date has been
designated as the "latest possible maturity date" for each REMIC II
Regular Interest.
(2) Calculated in accordance with the definition of "Uncertificated REMIC
II Pass-Through Rate" herein. (3) The Class A-IO Certificates will
represent 5 REMIC regular interest components, REMIC II Regular
Interest Component IO-1 through Component IO-5. Each component will
have (a) a rate of 5.00% per annum from the Closing Date to but not
including the Rate Change Date for such component and thereafter a rate
of 0.00% and (b) an uncertificated notional amount equal to the
Uncertificated Principal Balance of the REMIC I Regular Interest for
which such component is the Corresponding Interest.
(4) REMIC II Regular Interest LTII-IO will not have an Uncertificated
Principal Balance, but will accrue interest on its uncertificated
notional amount calculated in accordance with the definition of
"Uncertificated Notional Amount" herein.
REMIC III
---------
As provided herein, the Trustee will make an election to treat the
segregated pool of assets consisting of the REMIC II Regular Interests as a
REMIC for federal income tax purposes, and such segregated pool of assets will
be designated as "REMIC III". The Class R-3 Interest will represent the sole
class of "residual interests" in REMIC III for purposes of the REMIC
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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:
Initial Certificate Assumed Final Maturity
Class Designation Principal Balance Pass-Through Rate Date(1)
----------------- ----------------- ----------------- -------
Class A-1 $84,621,000 Class A-1 Pass-Through Rate March 25, 2034
Class A-2 $23,255,000 Class A-2 Pass-Through Rate March 25, 2034
Class A-3 $43,841,000 Class A-3 Pass-Through Rate March 25, 2034
Class A-4A $10,000,000 Class A-4A Pass-Through Rate March 25, 2034
Class A-4B $19,884,000 Class A-4B Pass-Through Rate March 25, 2034
Class A-5 $20,359,000 Class A-5 Pass-Through Rate March 25, 2034
Class A-6 $24,000,000 Class A-6 Pass-Through Rate March 25, 2034
Class A-IO N/A(2) Class A-IO Pass-Through Rate March 25, 2006
Class M-1 $6,000,000 Class M-1 Pass-Through Rate March 25, 2034
Class M-2 $4,560,000 Class M-2 Pass-Through Rate March 25, 2034
Class M-3 $2,280,000 Class M-3 Pass-Through Rate March 25, 2034
Class C $1,208,192.78 (3) Class C Pass-Through Rate March 25, 2034
Class P $100.00 N/A(4) March 25, 2034
___________________
(1) Solely for purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
regulations, the Distribution Date in the month following the maturity
date for the Mortgage Loan with the latest maturity date has been
designated as the "latest possible maturity date" for each Class of
Certificates.
(2) The Class A-IO Certificates will accrue interest at the Class A-IO
Pass-Through Rate on the Certificate Notional Balance of the Class A-IO
Certificates calculated in accordance with the definition of
"Certificate Notional Balance" herein. The Class A-IO Certificates will
not be entitled to distributions in respect of principal.
(3) The Class C Certificates will not accrue interest on their Certificate
Principal Balance, but will accrue interest at the Class C Pass-Through
Rate on the Certificate Notional Balance of the Class C Certificates
outstanding from time to time which shall equal the aggregate of the
Uncertificated Principal Balances of the REMIC II Regular Interests.
The Class C Certificates will not accrue interest on their Certificate
Principal Balance.
(4) The Class P Certificates are not entitled to distributions in respect
of interest.
In consideration of the mutual agreements herein contained, the
Depositor, the Servicers, the Seller and the Trustee agree as follows:
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ARTICLE I
DEFINITIONS
Section 1.01 DEFINED TERMS.
In addition to those terms defined in Section 1.02, whenever used in
this Agreement, the following words and phrases, unless the context otherwise
requires, shall have the following meanings:
ACCOUNT: Either the Distribution Account or any Custodial Account.
ACCRUAL PERIOD: With respect to the Certificates (other than the Class
A-1, Class P and Class R Certificates) and any Distribution Date, the calendar
month immediately preceding such Distribution Date. With respect to the Class
A-1 Certificates and any Distribution Date, 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. All calculations of interest on the Certificates
(other than the Class A-1, Class P and Class R 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.
ADVANCE: An advance of delinquent payments of principal or interest in
respect of a Mortgage Loan required to be made by the related Servicer pursuant
to Section 5.01 or by the Trustee in its capacity as a Successor Servicer
pursuant to Section 5.01.
ADVANCE FACILITY: As defined in Section 5.01(b)(i).
ADVANCE FACILITY NOTICE: As defined in Section 5.01(b)(ii).
ADVANCE FINANCING PERSON: As defined in Section 5.01(b)(i).
ADVANCE REIMBURSEMENT AMOUNT: As defined in Section 5.01(b)(ii).
AGREEMENT: This Pooling and Servicing Agreement and any and all
amendments or supplements hereto made in accordance with the terms herein.
AMOUNT HELD FOR FUTURE DISTRIBUTION: As to any Distribution Date, the
aggregate amount held in the related Servicer's Custodial Account at the close
of business on the immediately preceding Determination Date on account of (i)
all Scheduled Payments or portions thereof received in respect of the related
Mortgage Loans due after the related Due Period and (ii) Principal Prepayments
and Liquidation Proceeds received in respect of such Mortgage Loans after the
last day of the related Prepayment Period.
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
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appraised value of the Mortgaged Property based upon the appraisal made by a fee
appraiser at the time of the origination of the related Mortgage Loan, and (y)
the sales price of the Mortgaged Property at the time of such origination.
AUTHORIZED SERVICER REPRESENTATIVE: Those Servicer representatives,
authorized to execute a Request for Release on behalf of the applicable
Servicer, whose name and facsimile signature appear on a list furnished to the
Trustee by such applicable Servicer on the Closing Date pursuant to this
Agreement, as such list may be amended by such Servicer from time-to-time.
AVAILABLE DISTRIBUTION AMOUNT: The sum of Interest Funds and Principal
Funds with respect to the Mortgage Loans less amounts reimbursable to the
Servicers, the Trustee and the Custodian pursuant to this Agreement to the
extent not previously reimbursed.
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 City of New York, New York, the
Commonwealth of Pennsylvania, the city in which the Corporate Trust Office of
the Trustee is located or the States in which the Servicers servicing operations
are located are authorized or obligated by law or executive order to be closed.
CERTIFICATE: Any one of the certificates of any Class executed and
authenticated by the Trustee in substantially the forms attached hereto as
Exhibits A-1 through A-6.
CERTIFICATE OWNER: With respect to a Book-Entry Certificate, the Person
that is the beneficial owner of such Book-Entry Certificate.
CERTIFICATE NOTIONAL BALANCE: With respect to the Class A-IO
Certificates and any Distribution Date, the lesser of (a)(i) $32,400,000, for
each Distribution Date from the Distribution Date in March 2004 to and including
the Distribution Date in August 2004, (ii) $25,800,000, for each Distribution
Date from the Distribution Date in September 2004 to and including the
Distribution Date in April 2005, (iii) $19,800,000, for each Distribution Date
from the Distribution Date in May 2005 to and including the Distribution Date in
August 2005, (iv) $13,800,000, for each Distribution Date from the Distribution
Date in September 2005 to and including the Distribution Date in January 2006,
(v) $13,200,000, for the Distribution Date in February 2006 and (vi) $0, for
each Distribution Date thereafter and (b) the aggregate Stated Principal Balance
of the Mortgage Loans. For federal income tax purposes, however, the equivalent
of the foregoing, expressed as the Uncertificated Notional Balance of REMIC II
Regular Interest LTII-IO. With respect to the Class C Certificates, immediately
prior to any
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Distribution Date, the aggregate of the Uncertificated Principal Balances of the
REMIC II Regular Interests (other than REMIC II Regular Interest LTII-P).
CERTIFICATE PRINCIPAL BALANCE: As to any Certificate (other than any
Class A-IO, Class C or Class R Certificate) and as of any Distribution Date, the
Initial Certificate Principal Balance of such Certificate less the sum of (i)
all amounts distributed with respect to such Certificate in reduction of the
Certificate Principal Balance thereof on previous Distribution Dates pursuant to
Section 5.04, and (ii) 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.
References herein to the Certificate Principal Balance of a Class of
Certificates shall mean the Certificate Principal Balances of all Certificates
in such Class; provided, however that the Certificate Principal Balance of a
Certificate will be adjusted, in reverse order of priority, on each Distribution
Date by the amount of any Subsequent Recoveries received during the related Due
Period as provided in Section 5.05(f).
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).
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 III.
CLASS A-1 PASS-THROUGH RATE: With respect to any Distribution Date,
One-Month LIBOR plus 0.20% 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 III.
CLASS A-2 PASS-THROUGH RATE: With respect to any Distribution Date,
3.238% 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 III.
CLASS A-3 PASS-THROUGH RATE: With respect to any Distribution Date,
3.792% per annum, subject to a cap equal to the Net WAC Rate Cap for such
Distribution Date.
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CLASS A-4A 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-4A Certificates as set forth herein and evidencing a Regular
Interest in REMIC III.
CLASS A-4A PASS-THROUGH RATE: With respect to any Distribution Date,
5.174% per annum, subject to a cap equal to the Net WAC Rate Cap for such
Distribution Date.
CLASS A-4B 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-4B Certificates as set forth herein and evidencing a Regular
Interest in REMIC III.
CLASS A-4B PASS-THROUGH RATE: With respect to any Distribution Date,
5.837% 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 III.
CLASS A-5 PASS-THROUGH RATE: Shall mean (i) with respect to each
Distribution Date which occurs on or prior to the Optional Termination Date,
5.803% per annum and (ii) with respect to each Distribution Date which occurs
thereafter, 6.303% 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 III.
CLASS A-6 LOCKOUT EXTRA PRINCIPAL DISTRIBUTION AMOUNT: With respect to
any Distribution Date will be an amount equal to 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 Extra Principal
Distribution Amount for such Distribution Date.
CLASS A-6 LOCKOUT PRINCIPAL DISTRIBUTION AMOUNT: With respect to any
Distribution Date, an amount equal to the lesser of (i) the Senior Principal
Distribution Amount for such Distribution Date and (ii) the Class A-6 Lockout
Distribution Percentage for such 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.
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CLASS A-6 LOCKOUT DISTRIBUTION PERCENTAGE: With respect to each
Distribution Date, the applicable percentage set forth below:
CLASS A-6
LOCKOUT
DISTRIBUTION
DISTRIBUTION DATES PERCENTAGE
------------------ ----------
March 2004 through and including February 2007...................................... 0%
March 2007 through and including February 2009...................................... 45%
March 2009 through and including February 2010...................................... 80%
March 2010 through and including February 2011...................................... 100%
March 2011 and thereafter........................................................... 300%
CLASS A-6 PASS-THROUGH RATE: Shall mean (i) with respect to each
Distribution Date which occurs on or prior to the Optional Termination Date,
4.820% per annum and (ii) with respect to each Distribution Date which occurs
thereafter, 5.320% per annum, in each case subject to a cap equal to the Net WAC
Rate Cap for such Distribution Date.
CLASS A-IO CERTIFICATE: Any Certificate designated as a "Class A-IO
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 A-IO Certificates as set forth herein and evidencing a Regular
Interest in REMIC III.
CLASS A-IO PASS-THROUGH RATE: Shall mean (i) for the first twenty-four
Distribution Dates, 5.000% per annum, subject to a cap equal to the weighted
average of the Net Mortgage Rates on the Mortgage Loans and (ii) for any
Distribution Date thereafter, 0.00%. For federal income tax purposes, however,
the Class A-IO Certificates will not have a Class A-IO Pass-Through Rate, and
the Interest Distribution Amount for the Class A-IO Certificates and any
Distribution Date will be deemed to be 100% of the amount distributed on REMIC
II Regular Interest LTII-IO for such Distribution Date.
CLASS C CERTIFICATE: Any Certificate designated as a "Class C
Certificate" on the face thereof, in the form of Exhibit A-4 hereto,
representing the right to its Percentage Interest of distributions provided for
the Class C Certificates herein and evidencing a Regular Interest in REMIC III.
CLASS C DISTRIBUTION AMOUNT: With respect to any Distribution Date, the
sum of (i) the Interest Distribution Amount for the Class C Certificates for
such Distribution Date and (ii) any Overcollateralization Reduction Amount for
such Distribution Date remaining after payments pursuant to items 1 though 6 of
clause THIRD of Section 5.04; provided, however that on and after the
Distribution Date on which the Certificate Principal Balance of the Certificates
has been reduced to zero, the Class C Distribution Amount shall include the
Overcollateralization Amount.
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CLASS C 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 (M) below, and the
denominator of which is the aggregate of the Uncertificated Principal Balances
of the REMIC II Regular Interests (other than REMIC II Regular Interest LTII-P).
For purposes of calculating the Pass-Through Rate for the Class C Certificates,
the numerator is equal to the sum of the following components:
(A) the Uncertificated REMIC II Pass-Through Rate for REMIC II Regular
Interest LTII-AA minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC II Regular
Interest LTII-AA;
(B) the Uncertificated REMIC II Pass-Through Rate for REMIC II Regular
Interest LTII-A1 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC II Regular
Interest LTII-A1;
(C) the Uncertificated REMIC II Pass-Through Rate for REMIC II Regular
Interest LTII-A2 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC II Regular
Interest LTII-A2;
(D) the Uncertificated REMIC II Pass-Through Rate for REMIC II Regular
Interest LTII-A3 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC II Regular
Interest LTII-A3;
(E) the Uncertificated REMIC II Pass-Through Rate for REMIC II Regular
Interest LTII-A4A minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC II Regular
Interest LTII-A4A;
(F) the Uncertificated REMIC II Pass-Through Rate for REMIC II Regular
Interest LTII-A4B minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC II Regular
Interest LTII-A4B;
(G) the Uncertificated REMIC II Pass-Through Rate for REMIC II Regular
Interest LTII-A5 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC II Regular
Interest LTII-A5;
(H) the Uncertificated REMIC II Pass-Through Rate for REMIC II Regular
Interest LTII-A6 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC II Regular
Interest LTII-A6;
(I) the Uncertificated REMIC II Pass-Through Rate for REMIC II Regular
Interest LTII-M1 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC II Regular
Interest LTII-M1;
(J) the Uncertificated REMIC II Pass-Through Rate for REMIC II Regular
Interest LTII-M2 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC II Regular
Interest LTII-M2;
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(K) the Uncertificated REMIC II Pass-Through Rate for REMIC II Regular
Interest LTII-M3 minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC II Regular
Interest LTII-M3;
(L) the Uncertificated REMIC II Pass-Through Rate for REMIC II Regular
Interest LTII-ZZ minus the Marker Rate, applied to an amount equal to the
Uncertificated Principal Balance of REMIC II Regular Interest LTII-ZZ; and
(M) 100% of the interest distributable on REMIC II Regular
Interest LTII-P.
CLASS M-1 CERTIFICATE: Any Certificate designated as a "Class M-1
Certificate" on the face thereof, in the form of Exhibit A-3 hereto,
representing the right to its Percentage Interest of distributions provided for
the Class M-1 Certificates as set forth herein and evidencing a Regular Interest
in REMIC III.
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,
5.278% per annum and (ii) with respect to each Distribution Date which occurs
thereafter, 5.778% 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 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 5.70% 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-3 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 III.
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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,
5.654% per annum and (ii) with respect to each Distribution Date which occurs
thereafter, 6.154% 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 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 1.90%
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-3 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 III.
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,
5.860% per annum and (ii) with respect to each Distribution Date which occurs
thereafter, 6.360% 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:
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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 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 Required
Overcollateralization Percentage.
CLASS P CERTIFICATE: Any Certificate designated as a "Class P
Certificate" on the face thereof, in the form of Exhibit A-5 hereto,
representing the right to its Percentage Interest of distributions provided for
the Class P Certificates as set forth herein and evidencing a Regular Interest
in REMIC III.
CLASS P CERTIFICATE ACCOUNT: The Eligible Account established and
maintained by the Trustee 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-6 hereto,
evidencing the Class R-1 Interest, Class R-2 Interest and Class R-3 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.
CLOSING DATE: February 26, 2004.
CODE: The Internal Revenue Code of 1986, including any successor or
amendatory provisions.
COMPENSATING INTEREST: An amount to be deposited in the Distribution
Account by the related Servicer to offset a Prepayment Interest Shortfall on a
Mortgage Loan serviced by such Servicer and subject to this Agreement; provided,
however that the amount of Compensating Interest required to be paid in respect
of any Mortgage Loan shall not exceed the Servicing Fee payable to the related
Servicer.
CORPORATE TRUST OFFICE: The designated office of the Trustee where at
any particular time its corporate trust business with respect to this Agreement
shall be administered, which office at
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the date of the execution of this Agreement is located at 0 Xxx Xxxx Xxxxx, 0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Institutional Trust Services/Global
Debt, Nomura Asset Acceptance Corporation, Alternative Loan Trust, Series
2004-AP1, or at such other address as the Trustee may designate from time to
time.
CORRESPONDING CERTIFICATE: With respect to:
(i) REMIC II Regular Interest LTII-A1, the Class A-1
Certificates,
(ii) REMIC II Regular Interest LTII-A2, the Class A-2
Certificates;
(iii) REMIC II Regular Interest LTII-A3, the Class A-3
Certificates;
(iv) REMIC II Regular Interest LTII-A4A, the Class A-4A
Certificates;
(v) REMIC II Regular Interest LTII-A4B, the Class A-4B
Certificates;
(vi) REMIC II Regular Interest LTII-A5, the Class A-5
Certificates;
(vii) REMIC II Regular Interest LTII-A6, the Class A-6
Certificates;
(viii) REMIC II Regular Interest LTII-M1, the Class M-1
Certificates;
(ix) REMIC II Regular Interest LTII-M2, the Class M-2
Certificates;
(x) REMIC II Regular Interest LTII-M3, the Class M-3
Certificates; and
(xi) REMIC II Regular Interest LTII-P, the Class P
Certificates.
CORRESPONDING INTEREST: With respect to each REMIC I Regular Interest
set forth below, the corresponding REMIC II Regular Interest Component set forth
below:
REMIC II REGULAR INTEREST
REMIC I REGULAR INTEREST COMPONENT RATE CHANGE DATE
------------------------ --------- ----------------
LTI-IO-A IO-1 September 2004
LTI-IO-B IO-2 May 2005
LTI-IO-C IO-3 September 2005
LTI-IO-D IO-4 February 2006
LTI-IO-E IO-5 March 2006
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 Certificates then entitled to distributions of
principal on such Distribution Date.
CREDIT RISK MANAGEMENT AGREEMENT: Each agreement between the Credit
Risk Manager and a Servicer, regarding the loss mitigation and advisory services
to be provided by the Credit Risk Manager.
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
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Principal Balance of such Mortgage Loan as of the last day of the related Due
Period. The Credit Risk Management Fee shall be payable to the Credit Risk
Manager and/or the Seller pursuant to Section 4.07(a)(vii) and 4.08(b).
CREDIT RISK MANAGEMENT FEE RATE: 0.015% per annum.
CREDIT RISK MANAGER: The Murrayhill Company, a Colorado corporation.
CUSTODIAL ACCOUNT: Each account established and maintained by a
Servicer with respect to receipts on the Mortgage Loans and related REO Property
serviced by such Servicer in accordance with Section 4.01.
CUSTODIAN: JPMorgan Chase Bank, a New York banking corporation.
CUT-OFF DATE: February 1, 2004.
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.
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DENOMINATION: With respect to each Certificate, the amount set forth on
the face thereof as the "Initial Principal Balance of this Certificate".
DEPOSITOR: Nomura Asset Acceptance Corporation, a Delaware corporation,
or its successor in interest.
DEPOSITORY: The initial Depository shall be The Depository Trust
Company ("DTC"), the nominee of which is Cede & Co., or any other organization
registered as a "clearing agency" pursuant to Section 17A of the Securities
Exchange Act of 1934, as amended. The Depository shall initially be the
registered Holder of the Book-Entry Certificates. The Depository shall at all
times be a "clearing corporation" as defined in Section 8-102(a)(5) of the
Uniform Commercial Code of the State of New York.
DEPOSITORY AGREEMENT: With respect to the Class of Book-Entry
Certificates, the agreement among the Depositor, the Trustee and the initial
Depository, dated as of the Closing Date, substantially in the form of Exhibit
I.
DEPOSITORY PARTICIPANT: A broker, dealer, bank or other financial
institution or other Person for whom from time to time a Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
DETERMINATION DATE: With respect to any Distribution Date, the 15th day
of the month of such Distribution Date or, if such 15th day is not a Business
Day, the immediately preceding Business Day.
DISTRIBUTION ACCOUNT: The separate Eligible Account created and
maintained by the Trustee pursuant to Section 4.06 in the name of the Trustee
for the benefit of the Certificateholders and designated "JPMorgan Chase Bank,
in trust for registered holders of Nomura Asset Acceptance Corp., Mortgage
Pass-Through Certificates, Series 2004-AP1". Funds in the Distribution Account
shall be held in trust for the Certificateholders for the uses and purposes set
forth in this Agreement.
DISTRIBUTION DATE: The 25th day of each calendar month after the
initial issuance of the Certificates, or if such 25th day is not a Business Day,
the next succeeding Business Day, commencing in March 2004.
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 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
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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. Eligible Accounts may bear
interest, and may include, if otherwise qualified under this definition,
accounts maintained with the Trustee.
ESCROW ACCOUNT: Shall mean an account maintained by each Servicer
pursuant to Section 4.04. The Escrow Account shall be an Eligible Account.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
ERISA RESTRICTED CERTIFICATE: Each of the Class C, Class P and Residual
Certificates.
EXCESS LIQUIDATION PROCEEDS: To the extent not required by law to be
paid to the related Mortgagor, the excess, if any, of any Liquidation Proceeds
with respect to a Mortgage Loan over the Stated Principal Balance of such
Mortgage Loan and accrued and unpaid interest at the related Mortgage Rate
through the last day of the month in which the Mortgage Loan has been
liquidated.
EXEMPTION: Prohibited Transaction Exemption 93-32, as amended from time
to time.
EXTRA PRINCIPAL DISTRIBUTION AMOUNT: With respect to any Distribution
Date, the lesser of (x) the Net Monthly Excess Cashflow for such Distribution
Date and (y) the Overcollateralization Increase Amount for such Distribution
Date.
XXXXXX XXX: Xxxxxx Xxx (formerly, Federal National Mortgage
Association), or any successor thereto.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
FINAL CERTIFICATION: The certification of the Custodian in the form
attached hereto as Exhibit C-3.
FINAL RECOVERY DETERMINATION: With respect to any defaulted Mortgage
Loan or any REO Property (other than a Mortgage Loan or REO Property purchased
by the Seller or the Depositor pursuant to or as contemplated by Section 2.03(c)
or Section 10.01), a determination made by the related Servicer pursuant to this
Agreement that all Insurance Proceeds, Liquidation Proceeds and other payments
or recoveries which such Servicer, in its reasonable good faith judgment,
expects to be finally recoverable in respect thereof have been so recovered. The
Trustee shall maintain records, based solely on information provided by the
related Servicer, of each Final Recovery Determination made thereby.
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FIRREA: The Financial Institutions Reform, Recovery, and Enforcement
Act of 1989, as amended.
XXXXXXX MAC: Federal Home Loan Mortgage Corporation, or any successor
thereto.
GMAC: GMAC Mortgage Corporation or any successor thereto appointed
hereunder in connection with the servicing and administration of the GMAC
Mortgage Loans.
GMAC MORTGAGE LOANS: Those Mortgage Loans serviced by GMAC pursuant to
the terms of this Agreement.
INDEMNIFIED PERSONS: The Trustee, the Servicers (including any
successor to any Servicer), 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.
INITIAL CERTIFICATE PRINCIPAL BALANCE: With respect to any Certificate,
the Certificate Principal Balance of such Certificate or any predecessor
Certificate on the Closing Date.
INITIAL CERTIFICATION: The certification of the Custodian in the form
attached hereto as Exhibit C-1.
INSURANCE POLICY: With respect to any Mortgage Loan included in the
Trust Fund, any insurance policy, including all riders and endorsements thereto
in effect with respect to such Mortgage Loan, including any replacement policy
or policies for any Insurance Policies.
INSURANCE PROCEEDS: Proceeds paid in respect of the Mortgage Loans
pursuant to any Insurance Policy or any other insurance policy covering a
Mortgage Loan, to the extent such proceeds are payable to the mortgagee under
the Mortgage, the related Servicer or the trustee under the deed of trust and
are not applied to the restoration of the related Mortgaged Property or released
to the Mortgagor in accordance with the servicing standard set forth in Section
3.01 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 P Certificates 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, plus interest accrued thereon at the related Pass-Through
Rate for the most recently ended 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
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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 the basis of
a 360-day year and the actual number of days elapsed in the related Accrual
Period. No Interest Distribution Amount will be payable with respect to any
Class of Certificates after the Distribution Date on which the outstanding
Certificate Principal Balance of such Certificate has been reduced to zero.
INTEREST FUNDS: With respect to any Distribution Date, (i) the sum,
without duplication, of (a) all scheduled interest during the related Due Period
with respect to the related Mortgage Loans less the Servicing Fee and the Credit
Risk Management Fee, (b) all Advances relating to interest with respect to the
related Mortgage Loans made on or prior to the related Remittance Date, (c) all
Compensating Interest with respect to the related Mortgage Loans and required to
be remitted by the related Servicer pursuant to this Agreement with respect to
such Distribution Date, (d) Liquidation Proceeds with respect to the related
Mortgage Loans collected during the related Prepayment Period (to the extent
such Liquidation Proceeds relate to interest), (e) all amounts relating to
interest with respect to each Mortgage Loan repurchased by the Seller pursuant
to Sections 2.02 and 2.03 and (f) all amounts in respect of interest paid by the
Depositor pursuant to Section 10.01 to the extent remitted by the related
Servicer to the Distribution Account pursuant to this Agreement minus (ii) all
amounts relating to interest required to be reimbursed pursuant to Sections
4.02, 4.04, 4.06, 4.07 and 9.05 or as otherwise set forth in this Agreement.
INTEREST REMITTANCE AMOUNT: With respect to any Distribution Date, that
portion of the Available Distribution Amount for such Distribution Date which
represents Interest Funds with respect to the Mortgage Loans.
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) the partial Principal
Prepayments received during the related Prepayment Period to the extent applied
prior to the Due Date in the month of the Distribution Date and (c) interest
payments on certain of the Mortgage Loans being limited pursuant to the
provisions of the Relief Act.
INTERIM CERTIFICATION: The certification of the Custodian in the form
attached hereto as Exhibit C-3.
LAST SCHEDULED DISTRIBUTION DATE: With respect to the Certificates
(other than the Class A-IO Certificates), March 25, 2034 and with respect to the
Class A-IO Certificates, February 25, 2006.
LATEST POSSIBLE MATURITY DATE: The Distribution Date following the
final scheduled maturity date of the Mortgage Loan in the Trust Fund having the
latest scheduled maturity date as of the Cut-off Date. For purposes of the
Treasury Regulations under Code section 860A
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through 860G, the latest possible maturity date of each regular interest issued
by REMIC I, REMIC II and REMIC III shall be the Latest Possible Maturity Date.
LIBOR BUSINESS DAY: Shall mean a day on which banks are open for
dealing in foreign currency and exchange in London and New York City.
LIQUIDATED LOAN: With respect to any Distribution Date, a defaulted
Mortgage Loan that has been liquidated through deed-in-lieu of foreclosure,
foreclosure sale, trustee's sale or other realization as provided by applicable
law governing the real property subject to the related Mortgage and any security
agreements and as to which the related Servicer has certified in the related
Prepayment Period that it has received all amounts it expects to receive in
connection with such liquidation.
LIQUIDATION PROCEEDS: Amounts, other than Insurance Proceeds, received
in connection with the partial or complete liquidation of a Mortgage Loan,
whether through trustee's sale, foreclosure sale or otherwise, or in connection
with any condemnation or partial release of a Mortgaged Property and any other
proceeds received with respect to an REO Property, less the sum of related
unreimbursed Advances, Servicing Fees and Servicing Advances and all expenses of
liquidation, including property protection expenses and foreclosure and sale
costs, including court and reasonable attorneys fees.
LOAN-TO-VALUE RATIO: The fraction, expressed as a percentage, the
numerator of which is the original principal balance of the related Mortgage
Loan and the denominator of which is the Appraised Value of the related
Mortgaged Property.
MAJORITY CLASS C CERTIFICATEHOLDER: The Holder of a 50.01% or greater
Percentage Interest in the Class C Certificates.
MARKER RATE: With respect to the Class C Certificates and any
Distribution Date, a per annum rate equal to two (2) times the weighted average
of the Uncertificated REMIC II Pass-Through Rates for REMIC II Regular Interest
LTII-A1, REMIC II Regular Interest LTII-A2, REMIC II Regular Interest LTII-A3,
REMIC II Regular Interest LTII-A4A, REMIC II Regular Interest LTII-A4B, REMIC II
Regular Interest LTII-A5, REMIC II Regular Interest LTII-A6, REMIC II Regular
Interest LTII-M1, REMIC II Regular Interest LTII-M2, REMIC II Regular Interest
LTII-M3 and REMIC II Regular Interest LTII-ZZ, with the rate on REMIC II Regular
Interest LTII-A1 subject to a cap equal to the lesser of (x) One-Month LIBOR
plus 0.20% per annum and (y) the Net WAC Rate Cap for the purpose of this
calculation; with the rate on REMIC II Regular Interest LTII-A2 subject to a cap
equal to the lesser of (x) 3.238% per annum and (y) the Net WAC Rate Cap for the
purpose of this calculation; with the rate on REMIC II Regular Interest LTII-A3
subject to a cap equal to the lesser of (x) 3.792% per annum and (y) the Net WAC
Rate Cap for the purpose of this calculation; with the rate on REMIC II Regular
Interest LTII-A4A subject to a cap equal to the lesser of (x) 5.174% per annum
and (y) the Net WAC Rate Cap for the purpose of this calculation; with the rate
on REMIC II Regular Interest LTII-A4B subject to a cap equal to the lesser of
(x) 5.837% per annum and (y) the Net WAC Rate Cap for the purpose of this
calculation; with the rate on REMIC II Regular Interest LTII-A5 subject to a cap
equal to (A) in the case of any Distribution Date up to and including the
Optional Termination Date, the lesser of (x) 5.803% per annum and (y) the Net
WAC Rate Cap and (B) in the case of any Distribution Date after the Optional
Termination Date, the lesser of (x) 6.303% per annum and (y) the Net WAC Rate
Cap for the purpose of this calculation; with the rate on REMIC II Regular
Interest LTII-A6 subject to a cap equal to (A) in the case of any Distribution
Date up to and including the Optional Termination Date, the lesser of (x) 4.820%
per annum and (y) the Net WAC Rate Cap and (B) in
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the case of any Distribution Date after the Optional Termination Date, the
lesser of (x) 5.320% per annum and (y) the Net WAC Rate Cap for the purpose of
this calculation; with the rate on REMIC II Regular Interest LTII-M1 subject to
a cap equal to (A) in the case of any Distribution Date up to and including the
Optional Termination Date, the lesser of (x) 5.278% per annum and (y) the Net
WAC Rate Cap and (B) in the case of any Distribution Date after the Optional
Termination Date, the lesser of (x) 5.778% per annum and (y) the Net WAC Rate
Cap for the purpose of this calculation; with the rate on REMIC II Regular
Interest LTII-M2 subject to a cap equal to (A) in the case of any Distribution
Date up to and including the Optional Termination Date, the lesser of (x) 5.654%
per annum and (y) the Net WAC Rate Cap and (B) in the case of any Distribution
Date after the Optional Termination Date, the lesser of (x) 6.154% per annum and
(y) the Net WAC Rate Cap for the purpose of this calculation; with the rate on
REMIC II Regular Interest LTII-M3 subject to a cap equal to (A) in the case of
any Distribution Date up to and including the Optional Termination Date, the
lesser of (x) 5.860% per annum and (y) the Net WAC Rate Cap and (B) in the case
of any Distribution Date after the Optional Termination Date, the lesser of (x)
6.360% per annum and (y) the Net WAC Rate Cap for the purpose of this
calculation; and with the rate on REMIC II Regular Interest LTII-ZZ subject to a
cap of zero for the purpose of this calculation; provided, however, that for
this purpose, the calculation of the Uncertificated REMIC II Pass-Through Rate
and the related cap with respect to REMIC II Regular Interest LTII-A1 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.
MERS: Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware, or any successor
thereto.
MERS(R) SYSTEM: The system of recording transfers of Mortgages
electronically maintained by MERS.
MEZZANINE CERTIFICATES: Shall mean, collectively, the Class M-1, Class
M-2 and Class M-3 Certificates.
MIN: The Mortgage Identification Number for Mortgage Loans registered
with MERS on the MERS(R) System.
MOM LOAN: Any Mortgage Loan as to which MERS is acting as the mortgagee
of such Mortgage Loan, solely as nominee for the originator of such Mortgage
Loan and its successors and assigns, at the origination thereof.
MONTHLY STATEMENT: The statement delivered to the Certificateholders
pursuant to Section 5.06.
MOODY'S: Xxxxx'x Investors Service, Inc. or its successor in interest.
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MORTGAGE: The mortgage, deed of trust or other instrument creating a
first lien on or first priority ownership interest in an estate in fee simple in
real property securing a Mortgage Note.
MORTGAGE FILE: The mortgage documents listed in Section 2.01 pertaining
to a particular Mortgage Loan and any additional documents delivered to the
Trustee to be added to the Mortgage File pursuant to this Agreement.
MORTGAGE LOANS: Such of the Mortgage Loans transferred and assigned to
the Trustee pursuant to the provisions hereof, as from time to time are held as
a part of the Trust Fund (including any REO Property), the mortgage loans so
held being identified in the Mortgage Loan Schedule, notwithstanding foreclosure
or other acquisition of title of the related Mortgaged Property.
MORTGAGE LOAN PURCHASE AGREEMENT: The Mortgage Loan Purchase Agreement
dated as of February 26, 2004, between the Seller, as seller and the Depositor,
as purchaser.
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 related Servicer to reflect the deletion of Deleted Mortgage
Loans and the addition of Replacement Mortgage Loans pursuant to the provisions
of this Agreement) transferred to the Trustee as part of the Trust Fund and from
time to time subject to this Agreement, the initial Mortgage Loan Schedule being
attached hereto as Exhibit B-1, setting forth the following information with
respect to each Mortgage Loan:
(i) the loan number;
(ii) the Mortgage Rate in effect as of the Cut-off Date;
(iii) the Servicing Fee Rate;
(iv) the Net Mortgage Rate in effect as of the Cut-off
Date;
(v) the maturity date;
(vi) the original principal balance;
(vii) the Cut-off Date Principal Balance;
(viii) the original term;
(ix) the remaining term;
(x) the property type;
(xi) with respect to each MOM Loan, the related MIN;
(xii) the Servicer; and
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(xiii) 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.
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: The annual rate of interest borne by a Mortgage Note.
MORTGAGED PROPERTY: The underlying property securing a Mortgage Loan.
MORTGAGOR: The obligors on a Mortgage Note.
NET INTEREST SHORTFALLS: Shall mean Interest Shortfalls net of payments
by the related Servicer in respect of Compensating Interest.
NET 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
Remittance Amount.
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 and (ii) the Credit Risk Management Fee Rate.
NET WAC RATE CAP: With respect to the Senior Certificates (other than
the Class A-IO Certificates) and the Mezzanine Certificates, (i) from and
including the Distribution Date in March 2004 through and including the
Distribution Date in February 2006, (a) 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 minus 5.000% times (b) a fraction, the numerator of
which is the Certificate Notional Balance of the Class A-IO Certificates and the
denominator of which is the aggregate Stated Principal Balance of the Mortgage
Loans as of the first day of the calendar month preceding the month in which the
Distribution Date occurs and (ii) thereafter, 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.
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 II Pass-Through Rates weighted on the basis of the
Uncertificated Principal Balance of the REMIC II Regular Interests.
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NET WAC RATE CARRYOVER AMOUNT: With respect the Senior Certificates
(other than the Class A-IO 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 plus (ii) the related Net WAC Rate
Carryover Amount for the previous Distribution Date not previously distributed.
NET WAC RESERVE FUND: Shall mean the segregated non-interest bearing
trust account created and maintained by the Trustee pursuant to Section 5.10
hereof.
NON-BOOK-ENTRY CERTIFICATE: Any Certificate other than a Book-Entry
Certificate.
NONRECOVERABLE ADVANCE: Any portion of an Advance or Servicing Advance
previously made or proposed to be made by the related Servicer pursuant to this
Agreement or the Trustee as a Successor Servicer, that, in the good faith
judgment of the related Servicer or the Trustee as a 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 this Agreement, signed by a Authorized Servicer Representative, as the case
may be, and delivered to the Depositor, the Seller and/or the Trustee, as the
case may be, as required by this Agreement.
ONE-MONTH LIBOR: With respect to any Accrual Period, the rate
determined by the Trustee 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; provided that the parties hereto acknowledge that One-Month
LIBOR for the first Accrual Period shall equal 1.10% per annum. 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 Trustee), One-Month LIBOR for the applicable Accrual Period will be the
Reference Bank Rate. If no such quotations can be obtained by the Trustee 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 Trustee and the Trustee'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.
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OPINION OF COUNSEL: A written opinion of counsel, who may be counsel
for the Seller, the Depositor or the related Servicer, reasonably acceptable to
each addressee of such opinion; provided that with respect to Section 2.05, 7.05
or 11.01, or the interpretation or application of the REMIC Provisions, such
counsel must (i) in fact be independent of the Seller, Depositor and the related
Servicer, (ii) not have any direct financial interest in the Seller, Depositor
or the related Servicer or in any affiliate of either, and (iii) not be
connected with the Seller, Depositor or the related Servicer as an officer,
employee, promoter, underwriter, trustee, partner, director or person performing
similar functions.
OPTION ONE: Option One Mortgage Corporation or any successor thereto
appointed hereunder in connection with the servicing and administration of the
Option One Mortgage Loans.
OPTION ONE MORTGAGE LOANS: Those Mortgage Loans serviced by Option One
pursuant to the terms of this Agreement.
OPTIONAL TERMINATION: The termination of the Trust Fund created
hereunder as a result of the purchase of all of the Mortgage Loans and any REO
Property pursuant to the last sentence of Section 10.01.
OPTIONAL TERMINATION DATE: The first Distribution Date on which the
Trust Fund may be terminated at the option of the Depositor as described in
Section 10.01.
OTS: The Office of Thrift Supervision or any successor thereto.
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 Trustee or
delivered to the Trustee for cancellation; and
(b) Certificates in exchange for which or in lieu of which
other Certificates have been executed and delivered by the Trustee pursuant to
this Agreement.
OUTSTANDING MORTGAGE LOAN: As of any date of determination, a Mortgage
Loan with a Stated Principal Balance greater than zero that was not the subject
of a Principal Prepayment in full, and that did not become a Liquidated Loan,
prior to the end of the related Prepayment Period.
OVERCOLLATERALIZATION AMOUNT: With respect to any Distribution Date,
the excess, if any, of (a) the aggregate Stated Principal Balances 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 principal other than any Extra Principal Distribution Amount on such
Certificates).
OVERCOLLATERALIZATION INCREASE AMOUNT: With respect to any Distribution
Date, the excess, if any, of (a) the Required Overcollateralization Amount over
(b) the Overcollateralization
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Amount on such Distribution Date (assuming that 100% of the Principal Remittance
Amount is applied as a principal payment on such Distribution Date).
OVERCOLLATERALIZATION REDUCTION AMOUNT: With respect to any
Distribution Date, the lesser of (x) the Principal Remittance Amount for such
Distribution Date and (y) the excess, if any, of (i) the Overcollateralization
Amount for such Distribution Date (assuming that 100% of the Principal
Remittance Amount is applied as a principal payment on 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 Class as set forth in the Preliminary
Statement.
PERCENTAGE INTEREST: With respect to any Certificate of a specified
Class, the Percentage Interest set forth on the face thereof or the percentage
obtained by dividing the Denomination of such Certificate by the aggregate of
the Denominations of all Certificates of 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;
(iii) [Reserved];
(iv) commercial or finance company paper which is then
receiving the highest commercial or finance company paper rating of
each Rating Agency, or such lower rating as will not result in the
downgrading or withdrawal of the ratings then assigned to the
Certificates by each Rating Agency;
(v) certificates of deposit, demand or time deposits, or
bankers' acceptances issued by any depository institution or trust
company incorporated under the laws of the United States or of any
state thereof and subject to supervision and examination by federal
and/or state banking authorities (including the Trustee in its
commercial banking capacity), provided that the commercial 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
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securities, or such lower ratings as will not result in the downgrading
or withdrawal of the rating then assigned to the Certificates by any
Rating Agency;
(vi) demand or time deposits or certificates of deposit issued
by any bank or trust company or savings institution to the extent that
such deposits are fully insured by the FDIC;
(vii) guaranteed reinvestment agreements issued by any bank,
insurance company or other corporation containing, at the time of the
issuance of such agreements, such terms and conditions as will not
result in the downgrading or withdrawal of the rating then assigned to
the Certificates by any such Rating Agency;
(viii) repurchase obligations with respect to any security
described in clauses (i) and (ii) above, in either case entered into
with a depository institution or trust company (acting as principal)
described in clause (v) above;
(ix) securities (other than stripped bonds, stripped coupons
or instruments sold at a purchase price in excess of 115% of the face
amount thereof) bearing interest or sold at a discount issued by any
corporation incorporated under the laws of the United States or any
state thereof which, at the time of such investment, have one of the
two highest long term ratings of each Rating Agency, or such lower
rating as will not result in the downgrading or withdrawal of the
rating then assigned to the Certificates by any Rating Agency, as
evidenced by a signed writing delivered by each Rating Agency;
(x) units of money market funds registered under the
Investment Company Act of 1940 including funds managed or advised by
the Trustee or an affiliate thereof having a rating by S&P of AAAm-G,
AAA-m, or AA-m, and if rated by Xxxxx'x, rated Aaa, Aa1 or Aa2;
(xi) short term investment funds sponsored by any trust
company or banking association incorporated under the laws of the
United States or any state thereof (including any such fund managed or
advised by the Trustee or any affiliate thereof) which on the date of
acquisition has been rated by each Rating Agency in their respective
highest applicable rating category or such lower rating as will not
result in the downgrading or withdrawal of the ratings then assigned to
the Certificates by each Rating Agency; and
(xii) such other investments having a specified stated
maturity and bearing interest or sold at a discount acceptable to each
Rating Agency as will not result in the downgrading or withdrawal of
the rating then assigned to the Certificates by any Rating Agency, as
evidenced by a signed writing delivered by each Rating Agency;
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.
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PERMITTED TRANSFEREE: Any person other than (i) the United States, any
State or political subdivision thereof, any possession of the United States or
any agency or instrumentality of any of the foregoing, (ii) a foreign
government, International Organization or any agency or instrumentality of
either of the foregoing, (iii) an organization (except certain farmers'
cooperatives described in section 521 of the Code) that is exempt from tax
imposed by Chapter 1 of the Code (including the tax imposed by section 511 of
the Code on unrelated business taxable income) on any excess inclusions (as
defined in section 860E(c)(1) of the Code) with respect to any Residual
Certificate, (iv) rural electric and telephone cooperatives described in section
1381(a)(2)(C) of the Code, (v) a Person that is not a citizen or resident of the
United States, a corporation, partnership (other than a partnership that has any
direct or indirect foreign partners) or other entity (treated as a corporation
or a partnership for federal income tax purposes), created or organized in or
under the laws of the United States, any state thereof or the District of
Columbia, an estate whose income from sources without the United States is
includible in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within the
United States, or a trust if a court within the United States is able to
exercise primary supervision over the administration of the trust and one or
more United States persons have authority to control all substantial decisions
of the trustor and (vi) any other Person based upon an Opinion of Counsel (which
shall not be an expense of the Trustee) that states that the Transfer of an
Ownership Interest in a Residual Certificate to such Person may cause REMIC I,
REMIC II or REMIC III to fail to qualify as a REMIC at any time that any
Certificates are Outstanding. The terms "United States," "State" and
"International Organization" shall have the meanings set forth in section 7701
of the Code or successor provisions. A corporation will not be treated as an
instrumentality of the United States or of any State or political subdivision
thereof for these purposes if all of its activities are subject to tax and, with
the exception of Xxxxxxx Mac, a majority of its board of directors is not
selected by such government unit.
PERSON: Any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization or government, or any agency or political
subdivision thereof.
PREPAYMENT ASSUMPTION: The assumed rate of prepayment, as described in
the Prospectus Supplement relating to each Class of Publicly Offered
Certificates.
PREPAYMENT CHARGE: With respect to any Principal Prepayment, any
prepayment premium, penalty or charge payable by a Mortgagor in connection with
any Principal Prepayment on a Mortgage Loan pursuant to the terms of the related
Mortgage Note (other than any Servicer Prepayment Charge Payment Amount).
PREPAYMENT CHARGE SCHEDULE: As of any date, the list of Mortgage Loans
providing for a Prepayment Charge included in the Trust Fund on such date,
attached hereto as Exhibit K (including the prepayment charge summary attached
thereto). The Depositor shall deliver or cause the delivery of the Prepayment
Charge Schedule to each Servicer and the Trustee on the Closing Date. The
Prepayment Charge Schedule shall set forth the following information with
respect to each Prepayment Charge:
(i) the Mortgage Loan identifying number;
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(ii) a code indicating the type of Prepayment Charge;
(iii) the date on which the first Monthly Payment was due on
the related Mortgage Loan;
(iv) the term of the related Prepayment Charge;
(v) the original Stated Principal Balance of the related
Mortgage Loan; and
(vi) the Stated Principal Balance of the related Mortgage Loan
as of the Cut- off Date.
PREPAYMENT INTEREST SHORTFALL: With respect to any Distribution Date,
for each Mortgage Loan that was the subject of a Principal Prepayment in full
during the related Prepayment Period, (other than a Principal Prepayment in full
resulting from the purchase of a Mortgage Loan pursuant to Section 2.02, 2.03,
3.26 or 10.01 hereof), the amount, if any, by which (i) one month's interest at
the applicable Net Mortgage Rate on the Stated Principal Balance of such
Mortgage Loan immediately prior to such prepayment exceeds (ii) the amount of
interest paid or collected in connection with such Principal Prepayment less the
sum of (a) the related Servicing Fee and (b) the Credit Risk Management Fee.
PREPAYMENT PERIOD: With respect to any Distribution Date, the calendar
month immediately preceding the month in which such Distribution Date occurs.
PRINCIPAL DISTRIBUTION AMOUNT: With respect to each Distribution Date,
the sum of (i) the principal portion of all scheduled monthly payments on the
Mortgage Loans due during the related Due Period, whether or not received on or
prior to the related Determination Date; (ii) the principal portion of all
proceeds received in respect of the repurchase of a Mortgage Loan (or, in the
case of a substitution, certain amounts representing a principal adjustment)
during the related Prepayment Period; (iii) the principal portion of all other
unscheduled collections, including Insurance Proceeds, condemnation proceeds,
Liquidation Proceeds and all full and partial principal prepayments, received
during the related Prepayment Period, to the extent applied as recoveries of
principal on the Mortgage Loans, (iv) the Extra Principal Distribution Amount
for such Distribution Date MINUS (v) the amount of any Overcollateralization
Reduction Amount for such Distribution Date and any amounts payable or
reimbursable therefrom to the Servicers or the Trustee prior to distributions
being made on the Certificates. 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
Distribution Account Deposit Date or, with respect to the Trustee on the
Distribution Date, (c) Principal Prepayments exclusive of prepayment charges or
penalties collected during the related Prepayment Period, (iii) the Stated
Principal Balance of each Mortgage Loan that was repurchased by the Seller
pursuant to Sections 2.02, 2.03 and 3.26,
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(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
Depositor pursuant to Section 10.01, (f) all Liquidation Proceeds collected
during the related Prepayment Period (to the extent such Liquidation Proceeds
relate to principal), in each case to the extent remitted by the related
Servicer to the Distribution Account pursuant to this Agreement and (g) all
Subsequent Recoveries minus (ii) all amounts required to be reimbursed pursuant
to Sections 4.02, 4.05, 4.07, 5.08 and 9.05 or as otherwise set forth in this
Agreement.
PRINCIPAL PREPAYMENT: Any Mortgagor payment or other recovery of (or
proceeds with respect to) principal on a Mortgage Loan (including loans
purchased or repurchased under Sections 2.02, 2.03, 3.26 and 10.01 hereof) that
is received in advance of its scheduled Due Date and is not accompanied by an
amount as to interest representing scheduled interest due on any Due Date in any
month or months subsequent to the month of prepayment. Partial Principal
Prepayments shall be applied by the related Servicer in accordance with the
terms of the related Mortgage Note.
PRINCIPAL REMITTANCE AMOUNT: With respect to any Distribution Date, the
sum of the amounts listed in clauses (i) through (iii) of the definition of
Principal Distribution Amount net of any amounts payable or reimbursable
therefrom to the Servicers, the Trustee or the Custodian.
PRIVATE CERTIFICATE: Each of the Class C, Class P and Class R
Certificates.
PROSPECTUS SUPPLEMENT: The Prospectus Supplement dated February 23,
2004 relating to the offering of the Publicly Offered Certificates.
PUBLICLY OFFERED CERTIFICATES: The Senior Certificates and the
Mezzanine Certificates.
PUD: A planned unit development.
PURCHASE PRICE: With respect to any Mortgage Loan required to be
repurchased by the Seller pursuant to Section 2.02 or 2.03 hereof and as
confirmed by an Officer's Certificate from the Seller to the Trustee, an amount
equal to the sum of (i) 100% of the outstanding principal balance of the
Mortgage Loan as of the date of such purchase plus (ii) accrued interest thereon
at the applicable Mortgage Rate through the first day of the month in which the
Purchase Price is to be distributed to Certificateholders, reduced by any
portion of the Servicing Fee, Servicing Advances and Advances payable to the
purchaser of the 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.
RATE CHANGE DATE: With respect to a REMIC II Regular Interest
Component, the first month in which the pass-through rate for such component is
equal to 0.00%.
RATING AGENCY: Each of S&P and Xxxxx'x. 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
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designation shall be given to the Trustee. References herein to a given rating
category of a Rating Agency shall mean such rating category without giving
effect to any modifiers.
REALIZED LOSS: With respect to each Mortgage Loan as to which a Final
Recovery Determination has been made, an amount (not less than zero) equal to
(i) the Stated Principal Balance of such Mortgage Loan as of the commencement of
the calendar month in which the Final Recovery Determination was made, plus (ii)
accrued interest from the Due Date as to which interest was last paid by the
Mortgagor through the end of the calendar month in which such Final Recovery
Determination was made, calculated in the case of each calendar month during
such period (A) at an annual rate equal to the annual rate at which interest was
then accruing on such Mortgage Loan and (B) on a principal amount equal to the
Stated Principal Balance of such Mortgage Loan as of the close of business on
the Distribution Date during such calendar month, minus (v) the proceeds, if
any, received in respect of such Mortgage Loan during the calendar month in
which such Final Recovery Determination was made, net of amounts that are
payable therefrom to the related Servicer pursuant to this Agreement.
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.
RECORD DATE: With respect to the Certificates (other than the Class A-1
Certificates) and any Distribution Date, the close of business on the last
Business Day of the month preceding the month in which such Distribution Date
occurs. With respect to the Class A-1 Certificates and any Distribution Date, so
long as the Class A-1 Certificates are Book-Entry Certificates, the Business Day
preceding such Distribution Date, and otherwise, the close of business on the
last Business Day of the month preceding the month in which such Distribution
Date occurs.
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REFERENCE BANKS: Shall mean leading banks selected by the Trustee 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 Trustee and (iii) which are not controlling,
controlled by, or under common control with, the Depositor, the Seller or any
Servicer.
REFERENCE BANK RATE: With respect to any Accrual Period shall mean the
arithmetic mean, rounded upwards, if necessary, to the nearest whole multiple of
0.03125%, of the offered rates for United States dollar deposits for one month
that are quoted by the Reference Banks as of 11:00 a.m., New York City time, on
the related Interest Determination Date to prime banks in the London interbank
market for a period of one month in an amount approximately equal to the
aggregate Certificate Principal Balance of the Class 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 Trustee, as of 11:00 a.m., New York City time, on such
date for loans in United States dollars to leading European banks for a period
of one month in amounts approximately equal to the aggregate Certificate
Principal Balance of the Class A-1 Certificates for such Accrual Period.
REGULAR CERTIFICATE: Any Certificate other than a Residual Certificate.
RELIEF ACT: The Servicemembers Civil Relief Act, as amended.
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 Prepayment Charges; (ii) the Mortgage Files, (iii) the Custodial
Accounts (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; (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 all payments and other collections of principal and
interest due on the Mortgage Loans on or before the Cut-off Date and all
Prepayment Charges payable in connection with Principal Prepayments made before
the Cut-off Date.
REMIC I REGULAR INTEREST LTI-1: One of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
Regular Interest in REMIC
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I. REMIC I Regular Interest LTI-1 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 LTI-IO-A: One of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
Regular Interest in REMIC I. REMIC I Regular Interest LTI-IO-A 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 LTI-IO-B: One of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
Regular Interest in REMIC I. REMIC I Regular Interest LTI-IO-B 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 LTI-IO-C: One of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
Regular Interest in REMIC I. REMIC I Regular Interest LTI-IO-C 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 LTI-IO-D: One of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
Regular Interest in REMIC I. REMIC I Regular Interest LTI-IO-D 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 LTI-IO-E: One of the separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
Regular Interest in REMIC I. REMIC I Regular Interest LTI-IO-E 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 LTI-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 LTI-P shall accrue
interest at the related Uncertificated REMIC I Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
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REMIC I REGULAR INTERESTS: REMIC I Regular Interest LTI-1, REMIC I
Regular Interest LTI-IO-A, REMIC I Regular Interest LTI-IO-B, REMIC I Regular
Interest LTI-IO-C, REMIC I Regular Interest LTI-IO-D, REMIC I Regular Interest
LTI-IOE and REMIC I Regular Interest LTI-X.
XXXXX XX: The segregated pool of assets consisting of all of the REMIC
I Regular Interests conveyed in trust to the Trustee, for the benefit of REMIC
III, as holder of the REMIC II Regular Interests, and the Class R-2 Interest
pursuant to Section 2.07, and all amounts deposited therein, with respect to
which a separate REMIC election is to be made.
REMIC II INTEREST LOSS ALLOCATION AMOUNT": With respect to any
Distribution Date, an amount equal to (a) the product of (i) the aggregate
Stated Principal Balance of the Mortgage Loans and REO Properties then
outstanding and (ii) the REMIC II Remittance Rate for REMIC II Regular Interest
II-LTAA minus the Marker Rate, divided by (b) 12.
REMIC II OVERCOLLATERALIZATION AMOUNT: With respect to any date of
determination, (i) 1% of the aggregate Uncertificated Principal Balances of the
REMIC II Regular Interests minus (ii) the aggregate of the Uncertificated
Balances of REMIC II Regular Interest LTII-A1, REMIC II Regular Interest
LTII-A2, REMIC II Regular Interest LTII-A3, REMIC II Regular Interest LTII-A4A,
REMIC II Regular Interest LTII-A4B, REMIC II Regular Interest LTII-A5, REMIC II
Regular Interest LTII-A6, REMIC II Regular Interest LTII-M1, REMIC II Regular
Interest LTII-M2 and REMIC II Regular Interest LTII-M3, in each case as of such
date of determination.
REMIC II 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 II Regular Interest
LTII-A1, REMIC II Regular Interest LTII-A2, REMIC II Regular Interest LTII-A3,
REMIC II Regular Interest LTII-A4A, REMIC II Regular Interest LTII-A4B, REMIC II
Regular Interest LTII-A5, REMIC II Regular Interest LTII-A6, REMIC II Regular
Interest LTII-M1, REMIC II Regular Interest LTII-M2 and REMIC II Regular
Interest LTII-M3 and the denominator of which is the aggregate of the
Uncertificated Principal Balances of REMIC II Regular Interest LTII-A1, REMIC II
Regular Interest LTII-A2, REMIC II Regular Interest LTII-A3, REMIC II Regular
Interest LTII-A4A, REMIC II Regular Interest LTII-A4B, REMIC II Regular Interest
LTII-A5, REMIC II Regular Interest LTII-A6, REMIC II Regular Interest LTII-M1,
REMIC II Regular Interest LTII-M2, REMIC II Regular Interest LTII-M3 and REMIC
II Regular Interest LTII-ZZ.
REMIC II REGULAR INTERESTS: REMIC II Regular Interest LTII-AA, REMIC II
Regular Interest LTII-A1, REMIC II Regular Interest LTII-A2, REMIC II Regular
Interest LTII-A3, REMIC II Regular Interest LTII-A4A, REMIC II Regular Interest
LTII-A4B, REMIC II Regular Interest LTII-A5, REMIC II Regular Interest LTII-A6,
REMIC II Regular Interest LTII-M1, REMIC II Regular Interest LTII-M2, REMIC II
Regular Interest LTII-M3, REMIC II Regular Interest LTII-IO, REMIC II Regular
Interest LTII-ZZ and REMIC II Regular Interest LTII-P.
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REMIC II REGULAR INTEREST COMPONENT: Any of REMIC II Regular Interest
Component IO-1, REMIC II Regular Interest Component IO-2, REMIC II Regular
Interest Component IO-3, REMIC II Regular Interest Component IO-4 or REMIC II
Regular Interest Component IO-5, each of which is deemed to be a component of
REMIC II Regular Interest LTII-IO.
REMIC II REGULAR INTEREST LTII-AA: One of the separate non-certificated
beneficial ownership interests in REMIC II issued hereunder and designated as a
Regular Interest in REMIC II. REMIC II Regular Interest LTII-AA shall accrue
interest at the related Uncertificated REMIC II 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 II REGULAR INTEREST LTII-A1: One of the separate non-certificated
beneficial ownership interests in REMIC II issued hereunder and designated as a
Regular Interest in REMIC II. REMIC II Regular Interest LTII-A1 shall accrue
interest at the related Uncertificated REMIC II 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 II REGULAR INTEREST LTII-A2: One of the separate non-certificated
beneficial ownership interests in REMIC II issued hereunder and designated as a
Regular Interest in REMIC II. REMIC II Regular Interest LTII-A2 shall accrue
interest at the related Uncertificated REMIC II 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 II REGULAR INTEREST LTII-A3: One of the separate non-certificated
beneficial ownership interests in REMIC II issued hereunder and designated as a
Regular Interest in REMIC II. REMIC II Regular Interest LTII-A3 shall accrue
interest at the related Uncertificated REMIC II 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 II REGULAR INTEREST LTII-A4A: One of the separate
non-certificated beneficial ownership interests in REMIC II issued hereunder and
designated as a Regular Interest in REMIC II. REMIC II Regular Interest LTII-A4A
shall accrue interest at the related Uncertificated REMIC II 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 II REGULAR INTEREST LTII-A4B: One of the separate
non-certificated beneficial ownership interests in REMIC II issued hereunder and
designated as a Regular Interest in REMIC II. REMIC II Regular Interest LTII-A4B
shall accrue interest at the related Uncertificated REMIC II Pass-Through Rate
in effect from time to time, and shall be entitled to
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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 II REGULAR INTEREST LTII-A5: One of the separate non-certificated
beneficial ownership interests in REMIC II issued hereunder and designated as a
Regular Interest in REMIC II. REMIC II Regular Interest LTII-A5 shall accrue
interest at the related Uncertificated REMIC II 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 II REGULAR INTEREST LTII-A6: One of the separate non-certificated
beneficial ownership interests in REMIC II issued hereunder and designated as a
Regular Interest in REMIC II. REMIC II Regular Interest LTII-A6 shall accrue
interest at the related Uncertificated REMIC II 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 II REGULAR INTEREST LTII-IO: One of the separate non-certificated
beneficial ownership interests in REMIC II issued hereunder and designated as a
Regular Interest in REMIC II. REMIC II Regular Interest LTII-IO shall accrue
interest as provided herein and shall not be entitled to distributions of
principal. REMIC II Regular Interest LTII-IO will be deemed to be composed of
five components, IO-1 through IO-5, each of which is a Corresponding Interest to
a REMIC I Regular Interest.
REMIC II REGULAR INTEREST LTII-M1: One of the separate non-certificated
beneficial ownership interests in REMIC II issued hereunder and designated as a
Regular Interest in REMIC II. REMIC II Regular Interest LTII-M1 shall accrue
interest at the related Uncertificated REMIC II 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 II REGULAR INTEREST LTII-M2: One of the separate non-certificated
beneficial ownership interests in REMIC II issued hereunder and designated as a
Regular Interest in REMIC II. REMIC II Regular Interest LTII-M2 shall accrue
interest at the related Uncertificated REMIC II 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 II REGULAR INTEREST LTII-M3: One of the separate non-certificated
beneficial ownership interests in REMIC II issued hereunder and designated as a
Regular Interest in REMIC II. REMIC II Regular Interest LTII-M3 shall accrue
interest at the related Uncertificated REMIC II Pass-Through Rate in effect from
time to time, and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance as set forth in the Preliminary Statement
hereto.
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REMIC II REGULAR INTEREST LTII-P: One of the separate non-certificated
beneficial ownership interests in REMIC II issued hereunder and designated as a
Regular Interest in REMIC II. REMIC II Regular Interest LTII-P shall accrue
interest at the related Uncertificated REMIC II 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 II REGULAR INTEREST LTII-ZZ: One of the separate non-certificated
beneficial ownership interests in REMIC II issued hereunder and designated as a
Regular Interest in REMIC II. REMIC II Regular Interest LTII-ZZ shall accrue
interest at the related Uncertificated REMIC II 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 II REGULAR INTEREST LTII-ZZ MAXIMUM INTEREST DEFERRAL AMOUNT:
With respect to any Distribution Date, the excess of (i) accrued interest at the
Uncertificated REMIC II Pass-Through Rate applicable to REMIC II Regular
Interest LTII-ZZ for such Distribution Date on a balance equal to the
Uncertificated Principal Balance of REMIC II Regular Interest LTII-ZZ minus the
REMIC II Overcollateralization Amount, in each case for such Distribution Date,
over (ii) Uncertificated Accrued Interest on REMIC II Regular Interest LTII-A1,
REMIC II Regular Interest LTII-A2, REMIC II Regular Interest LTII-A3, REMIC II
Regular Interest LTII-A4A, REMIC II Regular Interest LTII-A4B, REMIC II Regular
Interest LTII-A5, REMIC II Regular Interest LTII-A6, REMIC II Regular Interest
LTII-M1, REMIC II Regular Interest LTII-M2 and REMIC II Regular Interest LTII-M3
for such Distribution Date, with the rate on each such REMIC II Regular Interest
subject to a cap equal to the related Pass-Through Rate.
REMIC II REQUIRED OVERCOLLATERALIZATION AMOUNT: 1% of the Required
Overcollateralization Amount.
REMIC III: The segregated pool of assets consisting of all of the REMIC
II Regular Interests conveyed in trust to the Trustee, for the benefit of the
REMIC III Certificateholders pursuant to Section 2.09, and all amounts deposited
therein, with respect to which a separate REMIC election is to be made.
REMIC III CERTIFICATE: Any Regular Certificate or Class R Certificate.
REMIC III CERTIFICATEHOLDER: The Holder of any REMIC III Certificate.
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.
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REMIC REGULAR INTEREST: A REMIC I Regular Interest, REMIC II Regular
Interest or a Regular Certificate.
REMITTANCE DATE: Shall mean the 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 related 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 Seller for a Deleted Mortgage Loan, which must, on
the date of such substitution, as confirmed in a Request for Release, (i) have a
Stated Principal Balance, after deduction of the principal portion of the
Scheduled Payment due in the month of substitution, not in excess of, and not
less than 90% of, the Stated Principal Balance of the Deleted Mortgage Loan;
(ii) have a fixed Mortgage Rate not less than or more than 1% per annum higher
than the Mortgage Rate of the Deleted Mortgage Loan; (iii) have the same or
higher credit quality characteristics than that of the Deleted Mortgage Loan;
(iv) have a Loan-to-Value Ratio no higher than that of the Deleted Mortgage
Loan; (v) have a remaining term to maturity no greater than (and not more than
one year less than) that of the Deleted Mortgage Loan; (vi) not permit
conversion of the Mortgage Rate from a fixed rate to a variable rate; (vii) be
secured by a first lien on the related Mortgaged Property; (viii) constitute the
same occupancy type as the Deleted Mortgage Loan or be owner occupied; and (ix)
comply with each representation and warranty set forth in the Mortgage Loan
Purchase Agreement.
REQUEST FOR RELEASE: The Request for Release to be submitted by the
Seller or the related Servicer to the Custodian substantially in the form of
Exhibit H. Each Request for Release furnished to the Custodian by the Seller or
a Servicer shall be in duplicate and shall be executed by an officer of such
Person or a Authorized Servicer Representative (or, if furnished electronically
to the Custodian, shall be deemed to have been sent and executed by an officer
of such Person or a Authorized Servicer Representative) of the related Servicer.
REQUIRED INSURANCE POLICY: With respect to any Mortgage Loan, any
insurance policy that is required to be maintained from time to time under this
Agreement.
REQUIRED OVERCOLLATERALIZATION AMOUNT: With respect to any Distribution
Date following the Closing Date, an amount equal to $1,200,000.
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
during the related Prepayment Period).
RESIDUAL CERTIFICATES: Any one of the Class R Certificates.
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RESPONSIBLE OFFICER: With respect to the Trustee, any Vice President,
any Assistant Vice President, the Secretary, any Assistant Secretary, any Trust
Officer, any other officer customarily performing functions similar to those
performed by any of the above designated officers or other officers of the
Trustee specified by the Trustee having direct responsibility over this
Agreement and customarily performing functions similar to those performed by any
one of the designated officers, as to whom, with respect to a particular matter,
such matter is referred because of such officer's knowledge of and familiarity
with the particular subject.
S&P: Standard & Poor's, a division of The XxXxxx-Xxxx Companies, Inc.
or its successor in interest.
SCHEDULED PAYMENT: The scheduled monthly payment on a Mortgage Loan due
on any Due Date allocable to principal and/or interest on such Mortgage Loan.
SECURITIES ACT: The Securities Act of 1933, as amended.
SELLER: Nomura Credit & Capital, Inc., a Delaware corporation, and its
successors and assigns, in its capacity as seller of the Mortgage Loans to the
Depositor.
SENIOR CERTIFICATES: The Class A-1, Class A-2, Class A-3, Class A-4A,
Class X-0X, Xxxxx X-0, Class A-6 and Class A-IO Certificates.
SENIOR INTEREST DISTRIBUTION AMOUNT: With respect to any Distribution
Date will be equal to the Interest Distribution Amount for such Distribution
Date for the Senior Certificates and the Interest Carry Forward Amount, if any,
for such Distribution Date for the Senior Certificates.
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 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 10.70% and the
Required Overcollateralization Percentage.
SERVICER: Shall mean either Option One or GMAC.
SERVICER'S ASSIGNEE: As defined in Section 5.01(b)(ii).
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SERVICER DEFAULT: As defined in Section 8.01.
SERVICER PREPAYMENT CHARGE PAYMENT AMOUNT: The amount payable by the
related Servicer in respect of any waived Prepayment Charges pursuant to Section
3.01.
SERVICING ADVANCES: All customary, reasonable and necessary "out of
pocket" costs and expenses (including reasonable legal fees) incurred in the
performance by a Servicer of its servicing obligations hereunder, including, but
not limited to, the cost of (i) the preservation, restoration, inspection and
protection of a Mortgaged Property, (ii) any enforcement or judicial
proceedings, including foreclosures, and including any expenses incurred in
relation to any such proceedings that result from the Mortgage Loan being
registered in the MERS(R) System, (iii) the management and liquidation of any
REO Property (including, without limitation, realtor's commissions) and (iv)
compliance with any obligations under Section 3.07 hereof to cause insurance to
be maintained.
SERVICING 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.
STARTUP DAY: The Startup Day for each REMIC formed hereunder shall be
the Closing Date.
STATED PRINCIPAL BALANCE: With respect to any Mortgage Loan or related
REO Property and any Distribution Date, the Cut-off Date Principal Balance
thereof minus the sum of (i) the principal portion of the Scheduled Payments due
with respect to such Mortgage Loan during each Due Period ending prior to such
Distribution Date (and irrespective of any delinquency in their payment), (ii)
all Principal Prepayments with respect to such Mortgage Loan received prior to
or during the related Prepayment Period, and all Liquidation Proceeds to the
extent applied by the related Servicer as recoveries of principal in accordance
with Section 3.09 of this Agreement with respect to such Mortgage Loan, that
were received by the related Servicer as of the close of business on the last
day of the Prepayment Period related to such Distribution Date and (iii) any
Realized Losses on such Mortgage Loan incurred during the related Prepayment
Period. The Stated Principal Balance of a Liquidated Loan equals zero.
STEPDOWN DATE: The earlier to occur of (1) the Distribution Date on
which the aggregate Certificate Principal Balance of the Senior Certificates has
been reduced to zero and (2) the later to occur of (x) the Distribution Date in
March 2007 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
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of the Certificates then entitled to distributions of principal on the
Distribution Date) is greater than or equal to approximately 11.70%.
SUBSEQUENT RECOVERIES: Shall mean all amounts in respect of principal
received by a Servicer on a Mortgage Loan for which a Realized Loss was
previously incurred.
SUBSERVICING AGREEMENT: Any agreement entered into between a Servicer
and a subservicer with respect to the subservicing of any Mortgage Loan subject
to this Agreement by such subservicer.
SUBSTITUTION ADJUSTMENT AMOUNT: The meaning ascribed to such term
pursuant to Section 2.03(d).
SUCCESSOR SERVICER: The Trustee or any successor to a Servicer
appointed pursuant to Section 8.02 after the occurrence of a Servicer Default or
upon the resignation of a Servicer pursuant to this Agreement.
TAX MATTERS PERSON: The person designated as "tax matters person" in
the manner provided under Treasury regulation ss. 1.860F-4(d) and temporary
Treasury regulation ss. 301.6231(a)(7)-1T. The holder of the greatest Percentage
Interest in a Class of Residual Certificates shall be the Tax Matters Person for
the related REMIC. The Trustee, or any successor thereto or assignee thereof
shall serve as tax administrator hereunder and as agent for the related Tax
Matters Person.
TRANSFER AFFIDAVIT: As defined in Section 6.02(c).
TRANSFER: Any direct or indirect transfer or sale of any Ownership
Interest in a Certificate.
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 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 60% of the
Credit Enhancement Percentage of the Senior Certificates for the prior
Distribution Date, or (y) the aggregate amount of Realized Losses incurred since
the Cut-off Date through the last day of the related Due Period divided by the
aggregate 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
----------------- ----------
March 2007 to February 2008............................. 0.90%
March 2008 to February 2009............................. 1.15%
March 2009 to February 2010............................. 1.45%
March 2010 to February 2011............................. 1.65%
March 2011 and thereafter............................... 1.85%
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TRUST FUND: Collectively, the assets of REMIC I, REMIC II, REMIC III
and the Net WAC Reserve Fund.
TRUSTEE: JPMorgan Chase Bank, a New York banking corporation, not in
its individual capacity, but solely in its capacity as trustee for the benefit
of the Certificateholders under this Agreement, and any successor thereto, and
any corporation or national banking association resulting from or surviving any
consolidation or merger to which it or its successors may be a party and any
successor trustee as may from time to time be serving as successor trustee
hereunder.
UNCERTIFICATED ACCRUED INTEREST: With respect to each Uncertificated
REMIC Regular Interest on each Distribution Date, an amount equal to one month's
interest at the related Uncertificated Pass-Through Rate on the Uncertificated
Principal Balance or Uncertificated Notional Amount, as applicable, of such
REMIC Regular Interest. In each case, Uncertificated Accrued Interest will be
reduced by any Prepayment Interest Shortfalls and shortfalls resulting from
application of the Relief Act (allocated to such REMIC Regular Interests as set
forth in Sections 1.02 and 5.07).
UNCERTIFICATED NOTIONAL AMOUNT: With respect to REMIC II Regular
Interest LTII-IO and (i) each Distribution Date from and including the
Distribution Date in March 2004 to and including the Distribution Date in August
2004, the aggregate Uncertificated Principal Balances of REMIC I Regular
Interest LTI-IO-A, REMIC I Regular Interest LTI-IO-B, REMIC I Regular Interest
LTI-IO-C, REMIC I Regular Interest LTI-IO-D and REMIC I Regular Interest
LTI-IO-E, (ii) each Distribution Date from and including the Distribution Date
in September 2004 to and including the Distribution Date in April 2005, the
aggregate Uncertificated Principal Balances of REMIC I Regular Interest
LTI-IO-B, REMIC I Regular Interest LTI-IO-C, REMIC I Regular Interest LTI-IO-D
and REMIC I Regular Interest LTI-IO-E, (iii) each Distribution Date from and
including the Distribution Date in May 2005 to and including the Distribution
Date in August 2005, the aggregate Uncertificated Principal Balances of REMIC I
Regular Interest LTI-IO-C, REMIC I Regular Interest LTI-IO-D and REMIC I Regular
Interest LTI-IO-E, (iv) each Distribution Date from and including the
Distribution Date in September 2005 to and including the Distribution Date in
January 2006, the aggregate Uncertificated Principal Balances of REMIC I Regular
Interest LTI-IO-D and REMIC I Regular Interest LTI-IO-E, (v) for the
Distribution Date in February 2006, the Uncertificated Principal Balance of
REMIC I Regular Interest LTI-IO-E, and (vi) each Distribution Date thereafter,
$0.
UNCERTIFICATED PRINCIPAL BALANCE: With respect to each REMIC Regular
Interest (other than REMIC I Regular Interest LTII-IO, the principal amount of
such REMIC Regular Interest outstanding as of any date of determination. As of
the Closing Date, the Uncertificated Principal Balance of each REMIC Regular
Interest (other than REMIC I Regular Interest LTII-IO) 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 Sections 5.07 and 5.08 and, if and to the extent necessary and appropriate,
shall be further reduced on such Distribution Date by Realized Losses as
provided in Sections 5.07 and 5.08. The Uncertificated Principal Balance of each
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REMIC Regular Interest shall never be less than zero. REMIC I Regular Interest
LTII-IO will not have an Uncertificated Principal Balance.
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.
UNCERTIFICATED REMIC II PASS-THROUGH RATE:
(a) With respect to REMIC II Regular Interest LTII-AA, REMIC II Regular
Interest LTII-A1, REMIC II Regular Interest LTII-A2, REMIC II Regular Interest
LTII-A3, REMIC II Regular Interest LTII-A4A, REMIC II Regular Interest LTII-A4B,
REMIC II Regular Interest LTII-A5, REMIC II Regular Interest LTII-A6, REMIC II
Regular Interest LTII-M1, REMIC II Regular Interest LTII-M2, REMIC II Regular
Interest LTII-M3 and REMIC II Regular Interest LTII-ZZ, and (i) any Distribution
Date up to and including the Distribution Date in February 2006, a per annum
rate equal to (1) the weighted average of (x) with respect to REMIC I Regular
Interest LTI-1, the Uncertificated REMIC I Pass-Through Rate for such REMIC I
Regular Interest for such Distribution Date and, (y) with respect to REMIC I
Regular Interest LTI-IO-A through REMIC I Regular Interest LTI-IO-E the excess,
if any, of (1) the Uncertificated REMIC I Pass-Through Rate with respect to such
REMIC I Regular Interest for such Distribution Date over (2) in the case of each
such REMIC I Regular Interest, (A) from the Closing Date to but not including
the Rate Change Date for the Corresponding Interest relating to such REMIC I
Regular Interest, 5.000% per annum and (B) thereafter, 0.00% per annum; weighted
on the basis of the Uncertificated Principal Balance of each REMIC I Regular
Interest and (ii) thereafter, a per annum rate equal to the weighted average of
the Uncertificated REMIC I Pass-Through Rates for the REMIC I Regular Interests,
weighted on the basis of the respective Uncertificated Principal Balances
thereof for such Distribution Date.
(b) With respect to REMIC II Regular Interest LTII-IO and the first 24
Distribution Dates, 5.000%, and with respect to REMIC II Regular Interest
LTII-IO and any Distribution Date thereafter, 0.00% per annum.
UNCERTIFICATED REMIC REGULAR INTEREST: The REMIC I Regular Interests
and the REMIC II 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) 93% to the Certificates (other
than the Class A-IO, Class C, Class P and the Residual Certificates), (ii) 3% to
the Class C Certificates, (iii) 1% to the Class P Certificates, (iv) 1% to the
Class R Certificates and (v) 2% to the Class A-IO Certificates until the
Distribution Date in February 2006 and thereafter such percentage of voting
rights shall be allocated to the remaining Classes of Offered Certificates with
the allocation among the Certificates other than the Class A-IO, Class C, Class
P and Class R Certificates to be in proportion to the Certificate Principal
Balance of each Class relative to the Certificate Principal Balance of all other
such Classes. Voting Rights will be allocated among the Certificates of each
such Class in accordance with their respective Percentage Interests.
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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 C
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 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 Notional
Amount, as applicable of each such Certificate and (2) the aggregate amount of
any Realized Losses allocated to the Mezzanine Certificates and Net WAC Rate
Carryover Amount paid to the Senior Certificates (other than the Class A-IO
Certificates), and the Mezzanine Certificates incurred for any Distribution Date
shall be allocated to the Class CE 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 Certificate Principal 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 first, to REMIC I
Regular Interest LTI-1 and REMIC I Regular Interest LTI-P, to the extent of one
month's interest at the then applicable respective Uncertificated REMIC I
Pass-Through Rate on the Uncertificated Principal Balance of each such REMIC I
Regular Interest; and then, to REMIC I Regular Interest LTI-IO-A, REMIC I
Regular Interest LTI-IO-B, REMIC I Regular Interest LTI-IO-C, REMIC I Regular
Interest LTI-IO-D and REMIC I Regular Interest LTI-IO-E, in each case 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.
For purposes of calculating the amount of Uncertificated Accrued
Interest for the REMIC II 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 first, to
Uncertificated Accrued Interest payable to REMIC II Regular Interest LTII-AA and
REMIC II Regular Interest LTII-ZZ up to an aggregate amount equal to the REMIC
II Interest Loss Allocation Amount, 98% and 2%, respectively, and thereafter
among REMIC II Regular Interest LTII-A1, REMIC II Regular Interest LTII-A2,
REMIC II Regular Interest LTII-A3, REMIC II Regular Interest LTII-A4A, REMIC II
Regular Interest LTII-A4B, REMIC II Regular Interest LTII-A5, REMIC II Regular
Interest LTII-A6, REMIC II Regular Interest LTII-M1, REMIC II Regular Interest
LTII-M2, REMIC II Regular Interest LTII-M3 and REMIC II Regular Interest
LTII-ZZ, pro rata based on, and to the extent of, one month's interest at the
then applicable respective Uncertificated REMIC II Pass-Through Rate on the
respective Uncertificated Principal Balance of each such REMIC II Regular
Interest.
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ARTICLE II
CONVEYANCE OF TRUST FUND
REPRESENTATIONS AND WARRANTIES
Section 2.01 CONVEYANCE OF TRUST FUND.
The Seller hereby sells, transfers, assigns, sets over and
otherwise conveys to the Depositor, without recourse, all the right, title and
interest of the Seller in and to the assets in the Trust Fund.
The Seller has entered into this Agreement in consideration
for the purchase of the Mortgage Loans by the Depositor and has agreed to take
the actions specified herein.
The Depositor, concurrently with the execution and delivery
hereof, hereby sells, transfers, assigns, sets over and otherwise conveys to the
Trustee for the use and benefit of the Certificateholders, without recourse, all
the right, title and interest of the Depositor in and to the Trust Fund.
In connection with such sale, the Depositor has delivered to,
and deposited with, the Trustee or the Custodian, as its agent, the following
documents or instruments with respect to each Mortgage Loan so assigned: (i) the
original Mortgage Note, including any riders thereto, endorsed without recourse
to the order of "JPMorgan Chase Bank, as Trustee for certificateholders of
Nomura Asset Acceptance Corporation, Mortgage Pass-Through Certificates, Series
2004-AP1," and showing to the extent available to the Seller an unbroken chain
of endorsements from the original payee thereof to the Person endorsing it to
the Trustee, (ii) the original Mortgage and, if the related Mortgage Loan is a
MOM Loan, noting the presence of the MIN and language indicating that such
Mortgage Loan is a MOM Loan, which shall have been recorded (or if the original
is not available, a copy), with evidence of such recording indicated thereon (or
if clause (x) in the proviso below applies, shall be in recordable form), (iii)
unless the Mortgage Loan is a MOM Loan, the assignment (either an original or a
copy, which may be in the form of a blanket assignment if permitted in the
jurisdiction in which the Mortgaged Property is located) to the Trustee of the
Mortgage with respect to each Mortgage Loan in the name of "JPMorgan Chase Bank,
as Trustee for certificateholders of Nomura Asset Acceptance Corporation,
Mortgage Pass-Through Certificates, Series 2004-AP1," which shall have been
recorded (or if clause (x) in the proviso below applies, shall be in recordable
form) (iv) an original or a copy of all intervening assignments of the Mortgage,
if any, to the extent available to the Seller, with evidence of recording
thereon, (v) the original policy of title insurance or mortgagee's certificate
of title insurance or commitment or binder for title insurance, if available, or
a copy thereof, or, in the event that such original title insurance policy is
unavailable, a photocopy thereof, or in lieu thereof, a current lien search on
the related Mortgaged Property and (vi) originals or copies of all available
assumption, modification or substitution agreements, if any; provided, however,
that in lieu of the foregoing, the Seller may deliver the following documents,
under the circumstances set forth below: (x) if any Mortgage, assignment thereof
to the Trustee or intervening assignments thereof have been delivered or are
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being delivered to recording offices for recording and have not been returned in
time to permit their delivery as specified above, the Depositor may deliver a
true copy thereof with a certification by the Seller or the title company
issuing the commitment for title insurance, on the face of such copy,
substantially as follows: "Certified to be a true and correct copy of the
original, which has been transmitted for recording"; and (y) in lieu of the
Mortgage Notes relating to the Mortgage Loans identified in the list set forth
in Exhibit J, the Depositor may deliver a lost note affidavit and indemnity and
a copy of the original note, if available; and provided, further, that in the
case of Mortgage Loans which have been prepaid in full after the Cut-Off Date
and prior to the Closing Date, the Depositor, in lieu of delivering the above
documents, may deliver to the Trustee a certification of a Authorized Servicer
Representative to such effect and in such case shall deposit all amounts paid in
respect of such Mortgage Loans, in the Distribution Account on the Closing Date.
In the case of the documents referred to in clause (x) above, the Depositor
shall deliver such documents to the Trustee promptly after they are received.
The Seller shall cause, at its expense, the Mortgage and intervening
assignments, if any, and to the extent required in accordance with the
foregoing, the assignment of the Mortgage to the Trustee to be submitted for
recording promptly after the Closing Date; provided that the Seller need not
cause to be recorded any assignment (a) in any jurisdiction under the laws of
which, as evidenced by an Opinion of Counsel delivered by the Seller to the
Trustee and the Rating Agencies, the recordation of such assignment is not
necessary to protect the Trustee's interest in the related Mortgage Loan or (b)
if MERS is identified on the Mortgage or on a properly recorded assignment of
the Mortgage as mortgagee of record solely as nominee for Seller and its
successors and assigns. In the event that the Seller or the Depositor gives
written notice to the Trustee that a court has recharacterized the sale of the
Mortgage Loans as a financing, the Seller shall submit or cause to be submitted
for recording as specified above or, should the Seller fail to perform such
obligations, the Trustee shall cause each such previously unrecorded assignment
to be submitted for recording as specified above at the expense of the Trust
pursuant to Section 9.05. In the event a Mortgage File is released to a Servicer
as a result of such Person having completed a Request for Release, the Trustee
shall, if not so completed, complete the assignment of the related Mortgage in
the manner specified in clause (iii) above.
In connection with the assignment of any Mortgage Loan
registered on the MERS(R) System, the Seller further agrees that it will cause,
at the Seller's own expense, within 30 days after the Closing Date, the MERS(R)
System to indicate that such Mortgage Loans have been assigned by the Seller to
the Depositor and by the Depositor to the Trustee in accordance with this
Agreement for the benefit of the Certificateholders by including (or deleting,
in the case of Mortgage Loans which are repurchased in accordance with this
Agreement) in such computer files (a) the code in the field which identifies the
specific Trustee and (b) the code in the field "Pool Field" which identifies the
series of the Certificates issued in connection with such Mortgage Loans. The
Seller further agrees that it will not, and will not permit any Servicer to
alter the codes referenced in this paragraph with respect to any Mortgage Loan
during the term of this Agreement unless and until such Mortgage Loan is
repurchased in accordance with the terms of this Agreement.
Section 2.02 ACCEPTANCE OF THE MORTGAGE LOANS.
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(a) Based on the Initial Certification received by it from the
Custodian, the Trustee acknowledges receipt of, subject to the further review
and exceptions reported by the Custodian pursuant to the procedures described
below, the documents (or certified copies thereof) delivered to the Trustee or
the Custodian on its behalf pursuant to Section 2.01 and declares that it holds
and will continue to hold directly or through a custodian those documents and
any amendments, replacements or supplements thereto and all other assets of the
Trust Fund delivered to it in trust for the use and benefit of all present and
future Holders of the Certificates. On the Closing Date, the Custodian on the
Trustee's behalf will deliver an Initial Certification in the form annexed
hereto as Exhibit C-1, confirming whether or not it has received the Mortgage
File for each Mortgage Loan, but without review of such Mortgage File, except to
the extent necessary to confirm whether such Mortgage File contains the original
Mortgage Note or a lost note affidavit and indemnity in lieu thereof. No later
than 90 days after the Closing Date, the Custodian on the Trustee's behalf
shall, for the benefit of the Certificateholders, review each Mortgage File
delivered to it and execute and deliver to the Seller and the Trustee an Interim
Certification substantially in the form annexed hereto as Exhibit C-2. In
conducting such review, the Custodian on the Trustee's behalf will ascertain
whether all required documents have been executed and received and whether those
documents relate, determined on the basis of the Mortgagor name, original
principal balance and loan number, to the Mortgage Loans identified in Exhibit B
to this Agreement, as supplemented (provided, however, that with respect to
those documents described in subclauses (iv) and (vi) of Section 2.01, such
obligations shall extend only to documents actually delivered pursuant to such
subclauses). In performing any such review, the Custodian may conclusively rely
on the purported due execution and genuineness of any such document and on the
purported genuineness of any signature thereon. If 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,
determined on the basis of the Mortgagor's name, the original principal balance
and the Mortgage Loan number, or to appear to be defective on its face, the
Custodian shall include such information in the exception report attached to the
Interim Certification. The Seller shall correct or cure any such defect or, if
prior to the end of the second anniversary of the Closing Date, the Seller may
substitute for the related Mortgage Loan a Replacement Mortgage Loan, which
substitution shall be accomplished in the manner and subject to the conditions
set forth in Section 2.03 or shall deliver to the Trustee an Opinion of Counsel
to the effect that such defect does not materially or adversely affect the
interests of the Certificateholders in such Mortgage Loan within 60 days from
the date of notice from the Trustee of the defect and if the Seller fails to
correct or cure the defect or deliver such opinion within such period, the
Seller will, subject to Section 2.03, within 90 days from the notification of
the Trustee purchase such Mortgage Loan at the Purchase Price; provided,
however, that if such defect relates solely to the inability of the Seller to
deliver the Mortgage, assignment thereof to the Trustee, or intervening
assignments thereof with evidence of recording thereon because such documents
have been submitted for recording and have not been returned by the applicable
jurisdiction, the Seller shall not be required to purchase such Mortgage Loan if
the Seller delivers such documents promptly upon receipt, but in no event later
than 360 days after the Closing Date.
(b) No later than 180 days after the Closing Date, 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 Seller and the Trustee, a Final Certification
substantially in the form annexed hereto as Exhibit C-3. In conducting such
review,
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the Custodian on the Trustee's behalf will ascertain whether each document
required to be recorded has been returned from the recording office with
evidence of recording thereon and the Custodian on the Trustee's behalf has
received either an original or a copy thereof, as required in Section 2.01
(provided, however, that with respect to those documents described in subclauses
(iv) and (vi) of Section 2.01, such obligations shall extend only to documents
actually delivered pursuant to such subclauses). If the Custodian finds any
document with respect to a Mortgage Loan has not been received, or to be
unrelated, determined on the basis of the Mortgagor name, original principal
balance and loan number, to the Mortgage Loans identified in Exhibit B or to
appear defective on its face, the Custodian shall note such defect in the
exception report attached to the Final Certification and the Trustee shall
promptly notify the Seller. The Seller shall correct or cure any such defect or,
if prior to the end of the second anniversary of the Closing Date, the Seller
may substitute for the related Mortgage Loan a Replacement Mortgage Loan, which
substitution shall be accomplished in the manner and subject to the conditions
set forth in Section 2.03 or shall deliver to the Trustee an Opinion of Counsel
to the effect that such defect does not materially or adversely affect the
interests of Certificateholders in such Mortgage Loan within 60 days from the
date of notice from the Trustee of the defect and if the Seller is unable within
such period to correct or cure such defect, or to substitute the related
Mortgage Loan with a Replacement Mortgage Loan or to deliver such opinion, the
Seller shall, subject to Section 2.03, within 90 days from the notification of
the Trustee, purchase such Mortgage Loan at the Purchase Price; provided,
however, that if such defect relates solely to the inability of the Seller to
deliver the Mortgage, assignment thereof to the Trustee or intervening
assignments thereof with evidence of recording thereon, because such documents
have not been returned by the applicable jurisdiction, the Seller shall not be
required to purchase such Mortgage Loan, if the Seller delivers such documents
promptly upon receipt, but in no event later than 360 days after the Closing
Date.
(c) In the event that a Mortgage Loan is purchased by the
Seller in accordance with subsections 2.02(a) or (b) above or Section 2.03, the
Seller shall remit the applicable Purchase Price to the Trustee for deposit in
the Distribution Account and shall provide written notice to the Trustee
detailing the components of the Purchase Price, signed by an authorized officer.
Upon deposit of the Purchase Price in the Distribution Account and upon receipt
of a Request for Release with respect to such Mortgage Loan, the Trustee will
release to the Seller the related Mortgage File and the Trustee shall execute
and deliver all instruments of transfer or assignment, without recourse,
furnished to it by the Seller, as are necessary to vest in the Seller title to
and rights under the Mortgage Loan. Such purchase shall be deemed to have
occurred on the date on which the deposit into the Distribution Account was
made. The Trustee shall promptly notify the Rating Agencies of such repurchase.
The obligation of the Seller to cure, repurchase or substitute for any Mortgage
Loan as to which a defect in a constituent document exists shall be the sole
remedies respecting such defect available to the Certificateholders or to the
Trustee on their behalf. The Seller shall promptly reimburse the Trustee for any
expenses incurred by the Trustee in respect of enforcing the remedies for such
breach.
(d) The Seller shall deliver to the Trustee, and Trustee
agrees to accept the Mortgage Note and other documents constituting the Mortgage
File with respect to any Replacement Mortgage Loan, which the Custodian will
review as provided in subsections 2.02(a) and 2.02(b), provided, that the
Closing Date referred to therein shall instead be the date of delivery of the
Mortgage File with respect to each Replacement Mortgage Loan.
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Section 2.03 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SERVICERS
AND THE SELLER.
(a) Option One hereby represents and warrants to, and
covenants with, the Seller, the Depositor, GMAC and the Trustee as follows, as
of the Closing Date:
(i) It is duly organized and is validly existing and in good
standing under the laws of the State of California and is duly
authorized and qualified to transact any and all business contemplated
by this Agreement to be conducted by it in any state in which a
Mortgaged Property relating to an Option One Mortgage Loan is located
or is otherwise not required under applicable law to effect such
qualification and, in any event, is in compliance with the doing
business laws of any such state, to the extent necessary to ensure its
ability to enforce each Option One Mortgage Loan, to service the Option
One Mortgage Loans in accordance with the terms of this Agreement and
to perform any of its other obligations under this Agreement in
accordance with the terms hereof.
(ii) It has the full corporate power and authority to service
each Option One Mortgage Loan, and to execute, deliver and perform, and
to enter into and consummate the transactions contemplated by this
Agreement and has duly authorized by all necessary corporate action on
its part the execution, delivery and performance of this Agreement; and
this Agreement, assuming the due authorization, execution and delivery
hereof by the other parties hereto, constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its
terms, except that (a) the enforceability hereof may be limited by
bankruptcy, insolvency, moratorium, receivership and other similar laws
relating to creditors' rights generally and (b) the remedy of specific
performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court before
which any proceeding therefor may be brought and further subject to
public policy with respect to indemnity and contribution under
applicable securities law.
(iii) The execution and delivery of this Agreement by it, the
servicing of the Option One Mortgage Loans by it under this Agreement,
the consummation of any other of the transactions contemplated by this
Agreement, and the fulfillment of or compliance with the terms hereof
are in its ordinary course of business and will not (A) result in a
material breach of any term or provision of its charter or by-laws or
(B) materially conflict with, result in a material breach, violation or
acceleration of, or result in a material default under, the terms of
any other material agreement or instrument to which it is a party or by
which it may be bound, or (C) constitute a material violation of any
statute, order or regulation applicable to it of any court, regulatory
body, administrative agency or governmental body having jurisdiction
over it; and it is not in breach or violation of any material indenture
or other material agreement or instrument, or in violation of any
statute, order or regulation of any court, regulatory body,
administrative agency or governmental body having jurisdiction over it
which breach or violation may materially impair its ability to perform
or meet any of its obligations under this Agreement.
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(iv) It is an approved servicer of conventional mortgage loans
for Xxxxxx Xxx or Xxxxxxx Mac and is a mortgagee approved by the
Secretary of Housing and Urban Development pursuant to sections 203 and
211 of the National Housing Act.
(v) No litigation is pending or, to the best of its knowledge,
threatened in writing, against it that would materially and adversely
affect the execution, delivery or enforceability of this Agreement or
its ability to service the Option One Mortgage Loans or to perform any
of its other obligations under this Agreement in accordance with the
terms hereof.
(vi) No consent, approval, authorization or order of any court
or governmental agency or body is required for its execution, delivery
and performance of, or compliance with, this Agreement or the
consummation of the transactions contemplated hereby, or if any such
consent, approval, authorization or order is required, it has obtained
the same.
(vii) Option One has accurately and fully reported, and will
continue to accurately and fully report its borrower credit files to
each of the credit repositories in a timely manner materially in
accordance with the Fair Credit Reporting Act and its implementing
legislation.
(viii) Option One is a member of MERS in good standing, and
will comply in all material respects with the rules and procedures of
MERS in connection with the servicing of the Option One Mortgage Loans
that are registered with MERS.
(ix) Option One will not waive any Prepayment Charge with
respect to an Option One Mortgage Loan unless it is waived in
accordance with the standard set forth in Section 3.01.
Notwithstanding anything to the contrary contained in this Agreement, if the
covenant of Option One set forth in Section 2.03(a)(ix) above is breached,
Option One will pay the amount of such waived Prepayment Charge, for the benefit
of the Holders of the Class P Certificates, by depositing such amount into the
Custodial Account maintained by Option One within 90 days of the earlier of
discovery by Option One or receipt of notice by Option One of such breach.
(b) GMAC hereby represents and warrants to, and covenants
with, the Seller, the Depositor, Option One and the Trustee as follows, as of
the Closing Date:
(i) It is duly organized and is validly existing and in good
standing under the laws of the State of Pennsylvania and is duly
authorized and qualified to transact any and all business contemplated
by this Agreement to be conducted by it in any state in which a
Mortgaged Property relating to a GMAC Mortgage Loan is located or is
otherwise not required under applicable law to effect such
qualification and, in any event, is in compliance with the doing
business laws of any such state, to the extent necessary to ensure its
ability to service the GMAC 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.
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(ii) It has the full corporate power and authority to service
each GMAC Mortgage Loan, and to execute, deliver and perform, and to
enter into and consummate the transactions contemplated by this
Agreement and has duly authorized by all necessary corporate action on
its part the execution, delivery and performance of this Agreement; and
this Agreement, assuming the due authorization, execution and delivery
hereof by the other parties hereto, constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its
terms, except that (a) the enforceability hereof may be limited by
bankruptcy, insolvency, moratorium, receivership and other similar laws
relating to creditors' rights generally and (b) the remedy of specific
performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court before
which any proceeding therefor may be brought and further subject to
public policy with respect to indemnity and contribution under
applicable securities law.
(iii) The execution and delivery of this Agreement by it, the
servicing of the GMAC Mortgage Loans by it under this Agreement, the
consummation of any other of the transactions contemplated by this
Agreement, and the fulfillment of or compliance with the terms hereof
are in its ordinary course of business and will not (A) result in a
material breach of any term or provision of its charter or by-laws or
(B) materially conflict with, result in a material breach, violation or
acceleration of, or result in a material default under, the terms of
any other material agreement or instrument to which it is a party or by
which it may be bound, or (C) constitute a material violation of any
statute, order or regulation applicable to it of any court, regulatory
body, administrative agency or governmental body having jurisdiction
over it; and it is not in breach or violation of any material indenture
or other material agreement or instrument, or in violation of any
statute, order or regulation of any court, regulatory body,
administrative agency or governmental body having jurisdiction over it
which breach or violation may materially impair its ability to perform
or meet any of its obligations under this Agreement.
(iv) It is an approved servicer of conventional mortgage loans
for Xxxxxx Mae or Xxxxxxx Mac and is a mortgagee approved by the
Secretary of Housing and Urban Development pursuant to sections 203 and
211 of the National Housing Act.
(v) No litigation is pending or, to the best of its knowledge,
threatened, against it that would materially and adversely affect the
execution, delivery or enforceability of this Agreement or its ability
to service the GMAC Mortgage Loans or to perform any of its other
obligations under this Agreement in accordance with the terms hereof.
(vi) No consent, approval, authorization or order of any court
or governmental agency or body is required for its execution, delivery
and performance of, or compliance with, this Agreement or the
consummation of the transactions contemplated hereby, or if any such
consent, approval, authorization or order is required, it has obtained
the same.
(vii) GMAC has accurately and fully reported, and will
continue to accurately and fully report its borrower credit files to
each of the credit repositories in a timely
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manner materially in accordance with the Fair Credit Reporting Act and
its implementing legislation.
(viii) GMAC is a member of MERS in good standing, and will
comply in all material respects with the rules and procedures of MERS
in connection with the servicing of the GMAC Mortgage Loans that are
registered with MERS.
(ix) GMAC will not waive any Prepayment Charge with respect to
a GMAC Mortgage Loan unless it is waived in accordance with the
standard set forth in Section 3.01.
If the covenant of GMAC set forth in Section 2.03(b)(ix) above is breached by
GMAC, GMAC will pay the amount of such waived Prepayment Charge, for the benefit
of the Holders of the Class P Certificates, by depositing such amount into the
Custodial Account maintained by GMAC within 90 days of the earlier of discovery
by GMAC or receipt of notice by GMAC of such breach. Notwithstanding the
foregoing, or anything to the contrary contained in this Agreement, GMAC shall
have no liability for a waiver of any Prepayment Charge in the event that GMAC's
determination to make such a waiver was made by GMAC in reliance on information
properly received by GMAC from any Person in accordance with the terms of this
Agreement.
(c) The Seller hereby represents and warrants to and covenants
with, the Depositor, the Servicers and the Trustee as follows, as of the Closing
Date:
(i) The Seller is duly organized, validly existing and in good
standing under the laws of the State of Delaware and is duly authorized
and qualified to transact any and all business contemplated by this
Agreement to be conducted by the Seller in any state in which a
Mortgaged Property is located or is otherwise not required under
applicable law to effect such qualification and, in any event, is in
compliance with the doing business laws of any such state, to the
extent necessary to ensure its ability to enforce each Mortgage Loan,
to sell the Mortgage Loans in accordance with the terms of this
Agreement and to perform any of its other obligations under this
Agreement in accordance with the terms hereof.
(ii) The Seller has the full corporate power and authority to
sell each Mortgage Loan, and to execute, deliver and perform, and to
enter into and consummate the transactions contemplated by this
Agreement and has duly authorized by all necessary corporate action on
the part of the Seller the execution, delivery and performance of this
Agreement; and this Agreement, assuming the due authorization,
execution and delivery hereof by the other parties hereto, constitutes
a legal, valid and binding obligation of the Seller, enforceable
against the Seller in accordance with its terms, except that (a) the
enforceability hereof may be limited by bankruptcy, insolvency,
moratorium, receivership and other similar laws relating to creditors'
rights generally and (b) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought and further subject to public policy
with respect to indemnity and contribution under applicable securities
law.
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(iii) The execution and delivery of this Agreement by the
Seller, the sale of the Mortgage Loans by the Seller under this
Agreement, the consummation of any other of the transactions
contemplated by this Agreement, and the fulfillment of or compliance
with the terms hereof are in the ordinary course of business of the
Seller and will not (A) result in a material breach of any term or
provision of the charter or by-laws of the Seller or (B) materially
conflict with, result in a material breach, violation or acceleration
of, or result in a material default under, the terms of any other
material agreement or instrument to which the Seller is a party or by
which it may be bound, or (C) constitute a material violation of any
statute, order or regulation applicable to the Seller of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over the Seller; and the Seller is not in breach or
violation of any material indenture or other material agreement or
instrument, or in violation of any statute, order or regulation of any
court, regulatory body, administrative agency or governmental body
having jurisdiction over it which breach or violation may materially
impair the Seller's ability to perform or meet any of its obligations
under this Agreement.
(iv) The Seller is an approved seller of conventional mortgage
loans for Xxxxxx Mae or Xxxxxxx Mac and is a mortgagee approved by the
Secretary of Housing and Urban Development pursuant to sections 203 and
211 of the National Housing Act.
(v) No litigation is pending or, to the best of the Seller's
knowledge, threatened, against the Seller that would materially and
adversely affect the execution, delivery or enforceability of this
Agreement or the ability of the Seller to sell the Mortgage Loans or to
perform any of its other obligations under this Agreement in accordance
with the terms hereof.
(vi) No consent, approval, authorization or order of any court
or governmental agency or body is required for the execution, delivery
and performance by the Seller of, or compliance by the Seller with,
this Agreement or the consummation of the transactions contemplated
hereby, or if any such consent, approval, authorization or order is
required, the Seller has obtained the same.
(vii) The representations and warranties set forth in Section
8 of the Mortgage Loan Purchase Agreement are true and correct as of
the Closing Date.
(d) Upon discovery by any of the parties hereto of a breach of
a representation or warranty set forth in Section 8 of the Mortgage Loan
Purchase Agreement that materially and adversely affects the interests of the
Certificateholders in any Mortgage Loan, the party discovering such breach shall
give prompt written notice thereof to the other parties. The Seller hereby
covenants with respect to the representations and warranties set forth in
Section 8 of the Mortgage Loan Purchase Agreement, that within 90 days of the
discovery of a breach of any representation or warranty set forth therein that
materially and adversely affects the interests of the Certificateholders in any
Mortgage Loan, it shall cure such breach in all material respects and, if such
breach is not so cured, (i) prior to the second anniversary of the Closing Date,
remove such Mortgage Loan (a "Deleted Mortgage Loan") from the Trust Fund and
substitute in its place a Replacement Mortgage Loan, in the manner and subject
to the conditions set forth in this Section; or (ii) repurchase the affected
Mortgage Loan or Mortgage Loans from the Trustee
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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 Trustee of a Request for
Release. The Seller shall promptly reimburse the Trustee for any expenses
reasonably incurred by the Trustee in respect of enforcing the remedies for such
breach. To enable the related Servicer to amend the Mortgage Loan Schedule, the
Seller shall, unless it cures such breach in a timely fashion pursuant to this
Section 2.03, promptly notify the Trustee whether it intends either to
repurchase, or to substitute for, the Mortgage Loan affected by such breach.
With respect to the representations and warranties in Section 8 of the Mortgage
Loan Purchase Agreement that are made to the best of the Seller's knowledge, if
it is discovered by any of the Depositor, the Seller or the Trustee that the
substance of such representation and warranty is inaccurate and such inaccuracy
materially and adversely affects the value of the related Mortgage Loan,
notwithstanding the Seller's lack of knowledge with respect to the substance of
such representation or warranty, the Seller shall nevertheless be required to
cure, substitute for or repurchase the affected Mortgage Loan in accordance with
the foregoing.
With respect to any Replacement Mortgage Loan or Loans, the
Seller shall deliver to the Trustee for the benefit of the Certificateholders
such documents and agreements as are required by Section 2.01. No substitution
will be made in any calendar month after the Determination Date for such month.
Scheduled Payments due with respect to Replacement Mortgage Loans in the Due
Period related to the Distribution Date on which such proceeds are to be
distributed shall not be part of the Trust Fund and will be retained by the
Seller. For the month of substitution, distributions to Certificateholders will
include the Scheduled Payment due on any Deleted Mortgage Loan for the related
Due Period and thereafter the Seller shall be entitled to retain all amounts
received in respect of such Deleted Mortgage Loan. The related Servicer shall
amend the Mortgage Loan Schedule for the benefit of the Certificateholders to
reflect the removal of such Deleted Mortgage Loan and the substitution of the
Replacement Mortgage Loan or Loans and shall deliver the amended Mortgage Loan
Schedule to the Trustee. Upon such substitution, the Replacement Mortgage Loan
or Loans shall be subject to the terms of this Agreement in all respects, and
the Seller shall be deemed to have made with respect to such Replacement
Mortgage Loan or Loans, as of the date of substitution, the representations and
warranties set forth in Section 8 of the Mortgage Loan Purchase Agreement with
respect to such Mortgage Loan. Upon any such substitution and the deposit into
the Distribution Account of the amount required to be deposited therein in
connection with such substitution as described in the following paragraph and
receipt by the Trustee of a Request for Release for such Mortgage Loan, the
Trustee shall release to the Seller the Mortgage File relating to such Deleted
Mortgage Loan and held for the benefit of the Certificateholders and shall
execute and deliver at the Seller's direction such instruments of transfer or
assignment as have been prepared by the Seller, in each case without recourse,
as shall be necessary to vest in the Seller, or its respective designee, title
to the Trustee's interest in any Deleted Mortgage Loan substituted for pursuant
to this Section 2.03. The Trustee shall not have any further responsibility with
regard to such Mortgage File.
For any month in which the Seller substitutes one or more
Replacement Mortgage Loans for a Deleted Mortgage Loan, the Trustee will
determine the amount (if any) by which the aggregate principal balance of all
the Replacement Mortgage Loans as of the date of substitution is less than the
Stated Principal Balance (after application of the principal portion of the
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Scheduled Payment due in the month of substitution) of such Deleted Mortgage
Loan. An amount equal to the aggregate of such deficiencies, described in the
preceding sentence for any Distribution Date (such amount, the "Substitution
Adjustment Amount") shall be deposited into the Distribution Account, by the
Seller delivering such Replacement Mortgage Loan on the Determination Date for
the Distribution Date relating to the Prepayment Period during which the related
Mortgage Loan became required to be purchased or replaced hereunder.
In the event that the Seller shall have repurchased a Mortgage
Loan, the Purchase Price therefor shall be deposited into the Distribution
Account maintained by the Trustee, on the Determination Date for the
Distribution Date in the month following the month during which the Seller
became obligated to repurchase or replace such Mortgage Loan and upon such
deposit of the Purchase Price, the delivery of an Opinion of Counsel if required
by Section 2.05 and the receipt of a Request for Release, the Trustee shall
release the related Mortgage File held for the benefit of the Certificateholders
to the Seller, and the Trustee shall execute and deliver at such Person's
direction the related instruments of transfer or assignment prepared by the
Seller, in each case without recourse, as shall be necessary to transfer title
from the Trustee for the benefit of the Certificateholders and transfer the
Trustee's interest to the Seller to any Mortgage Loan purchased pursuant to this
Section 2.03. It is understood and agreed that the obligation under this
Agreement of the Seller to cure, repurchase or replace any Mortgage Loan as to
which a breach has occurred and is continuing shall constitute the sole remedies
against the Seller respecting such breach available to Certificateholders, the
Depositor or the Trustee.
(d) The representations and warranties set forth in Section
2.03 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 Servicers, the Seller and the Trustee as follows, as of the
date hereof and as of the Closing Date:
(i) The Depositor is duly organized and is validly existing as
a corporation in good standing under the laws of the State of Delaware
and has full power and authority (corporate and other) necessary to own
or hold its properties and to conduct its business as now conducted by
it and to enter into and perform its obligations under this Agreement.
(ii) The Depositor has the full corporate power and authority
to execute, deliver and perform, and to enter into and consummate the
transactions contemplated by, this Agreement and has duly authorized,
by all necessary corporate action on its part, the execution, delivery
and performance of this Agreement; and this Agreement, assuming the due
authorization, execution and delivery hereof by the other parties
hereto, constitutes a legal, valid and binding obligation of the
Depositor, enforceable against the Depositor in accordance with its
terms, subject, as to enforceability, to (i) bankruptcy, insolvency,
moratorium receivership and other similar laws relating to creditors'
rights generally and (ii) the remedy of specific performance and
injunctive and other forms of
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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
Seller, the Depositor had good title to the Mortgage Loans and the related
Mortgage Notes were subject to no offsets, claims, defenses or counterclaims.
It is understood and agreed that the representations and
warranties set forth in this Section 2.04 shall survive delivery of the Mortgage
Files to the Trustee or the Custodian for the benefit of the Certificateholders.
Upon discovery by the Depositor, any 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.
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(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 Seller delivers to the Trustee an Opinion of Counsel,
addressed to the Trustee, to the effect that such repurchase or substitution
would not (i) result in the imposition of the tax on "prohibited transactions"
of REMIC I, REMIC II or REMIC III or contributions after the Closing Date, as
defined in sections 860F(a)(2) and 860G(d) of the Code, respectively or (ii)
cause any of REMIC I, REMIC II or REMIC III to fail to qualify as a REMIC at any
time that any Certificates are outstanding. Any Mortgage Loan as to which
repurchase or substitution was delayed pursuant to this paragraph shall be
repurchased or the substitution therefor shall occur (subject to compliance with
Sections 2.02 or 2.03) upon the earlier of (a) the occurrence of a default or
imminent default with respect to such Mortgage Loan and (b) receipt by the
Trustee of an Opinion of Counsel to the effect that such repurchase or
substitution, as applicable, will not result in the events described in clause
(i) or clause (ii) of the preceding sentence.
(b) Upon discovery by the Depositor or the Seller that any
Mortgage Loan does not constitute a "qualified mortgage" within the meaning of
section 860G(a)(3) of the Code, the party discovering such fact shall promptly
(and in any event within 5 Business Days of discovery) give written notice
thereof to the other parties and the Trustee. In connection therewith, the
Seller, at the its option, shall either (i) substitute, if the conditions in
Section 2.03(c) with respect to substitutions are satisfied, a Replacement
Mortgage Loan for the affected Mortgage Loan, or (ii) repurchase the affected
Mortgage Loan within 90 days of such discovery in the same manner as it would a
Mortgage Loan for a breach of representation or warranty contained in Section
2.03. The Trustee shall reconvey to the Seller the Mortgage Loan to be released
pursuant hereto in the same manner, and on the same terms and conditions, as it
would a Mortgage Loan repurchased for breach of a representation or warranty
contained in Section 2.03.
Section 2.06 ISSUANCE OF THE REMIC I REGULAR INTERESTS AND THE CLASS
R-1 INTEREST.
The Trustee acknowledges the assignment to it of the Mortgage
Loans and the delivery to the Custodian on its behalf of the Mortgage Files,
subject to the provisions of Section 2.01 and Section 2.02, together with the
assignment to it of all other assets included in REMIC I, 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; ACCEPTANCE OF
REMIC II BY THE TRUSTEE.
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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 Holders 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 REMIC II Regular Interests, respectively, and all ownership interests
evidenced or constituted by the Class R-2 Interest and the REMIC II Regular
Interests, shall be as set forth in this Agreement.
Section 2.08 CONVEYANCE OF THE REMIC II REGULAR INTERESTS; ACCEPTANCE
OF REMIC III BY THE TRUSTEE.
The Depositor, concurrently with the execution and delivery
hereof, does hereby transfer, assign, set over and otherwise convey to the
Trustee, without recourse all the right, title and interest of the Depositor in
and to the REMIC II Regular Interests for the benefit of the Class R-3 Interest
and REMIC III (as holder of the REMIC II Regular Interests). The Trustee
acknowledges receipt of the REMIC II Regular Interests and declares that it
holds and will hold the same in trust for the exclusive use and benefit of all
present and future Holders of the Class R-3 Interest and REMIC III (as holder of
the REMIC II Regular Interests). The rights of the Holder of the Class R-3
Interest and REMIC III (as holder of the REMIC II Regular Interests) to receive
distributions from the proceeds of REMIC III in respect of the Class R-3
Interest and REMIC III Regular Interests, respectively, and all ownership
interests evidenced or constituted by the Class R-3 Interest and the REMIC III
Regular Interests, shall be as set forth in this Agreement. The Class R-3
Interest and the REMIC III Regular Interests shall constitute the entire
beneficial ownership interest in REMIC III.
Section 2.09 ISSUANCE OF CLASS R CERTIFICATES.
The Trustee acknowledges the assignment to it of the REMIC I
Regular Interests and the REMIC II Regular Interests and, concurrently therewith
and in exchange therefor, pursuant to the written request of the Depositor
executed by an officer of the Depositor, the Trustee has executed, authenticated
and delivered to or upon the order of the Depositor, the Class R Certificates in
authorized denominations. The Class R Certificates evidence ownership in the
Class R-1 Interest, the Class R-2 Interest and the Class R-3 Interest.
Section 2.10 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 2004-
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AP1" and does hereby appoint JPMorgan Chase Bank, as Trustee in accordance with
the provisions of this Agreement.
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ARTICLE III
ADMINISTRATION AND SERVICING OF THE MORTGAGE LOANS
Section 3.01 SERVICERS TO ACT AS SERVICERS.
The obligations of each of Option One and GMAC hereunder to
service and administer the Mortgage Loans shall be limited to the Option One
Mortgage Loans and the GMAC Mortgage Loans, respectively, and with respect to
the duties and obligations of each Servicer references herein to the related
Mortgage Loans shall be limited to the Option One Mortgage Loans (and the
related proceeds thereof and related REO Properties) in the case of Option One
and the GMAC Mortgage Loans (and the related proceeds and related REO
Properties) in the case of GMAC and in no event shall any Servicer have any
responsibility or liability with respect to any Mortgage Loans serviced by the
other Servicer hereunder.
Option One shall service and administer the Option One
Mortgage Loans on behalf of the Trust and in the best interests of and for the
benefit of the Certificateholders (as determined by Option One in its reasonable
judgment) in accordance with the terms of this Agreement and the Option One
Mortgage Loans and, to the extent consistent with such terms, in the same manner
in which it services and administers similar mortgage loans for its own
portfolio, giving due consideration to customary and usual standards of practice
of mortgage lenders and loan servicers administering similar mortgage loans but
without regard to:
(A) any relationship that Option One, any subservicer or any
Affiliate of Option One or any subservicer may have with the related
Mortgagor;
(B) the ownership or non-ownership of any Certificate by
Option One or any Affiliate of Option One;
(C) Option One's obligation to make Advances or Servicing
Advances; or
(D) Option One's or any subservicer's right to receive
compensation for its services hereunder or with respect to any
particular transaction.
GMAC shall service and administer the GMAC Mortgage Loans on behalf of the Trust
and in the best interest of and for the benefit of the Certificateholders (as
determined by GMAC in its reasonable judgment) in accordance with the terms of
this Agreement and the GMAC Mortgage Loans and to the extent consistent with
such terms and in accordance with and exercising the same care in performing
those practices that GMAC customarily employs and exercises in servicing and
administering mortgage loans for its own account (including, compliance with all
applicable federal, state and local laws).
To the extent consistent with the foregoing, each Servicer shall seek the timely
and complete recovery of principal and interest on the Mortgage Notes related to
the Mortgage Loans serviced by such Servicer and shall waive a Prepayment Charge
only under the following circumstances:
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(i) such waiver is standard and customary in servicing similar mortgage loans
and (ii) either (A) such waiver is related to a default or reasonably
foreseeable default and would, in the reasonable judgement of such Servicer,
maximize recovery of total proceeds taking into account the value of such
Prepayment Charge and the related Mortgage Loan and, if such waiver is made in
connection with a refinancing of the related Mortgage Loan, such refinancing is
related to a default or a reasonably foreseeable default or (B) such waiver is
made in connection with a refinancing of the related Mortgage Loan unrelated to
a default or a reasonably foreseeable default where (x) the related Mortgagor
has stated to the related Servicer an intention to refinance the related
Mortgage Loan and (y) the related Servicer has concluded in its reasonable
judgement that the waiver of such Prepayment Charge would induce such Mortgagor
to refinance with such Servicer or (iii) such Prepayment Charge is unenforceable
in accordance with applicable law or the collection of such related Prepayment
Charge would otherwise violate applicable law. If a Prepayment Charge is waived
as permitted by meeting both of the standards described in clauses (i) and
(ii)(B) above, then the related Servicer is required to pay the amount of such
waived Prepayment Charge (the "Servicer Prepayment Charge Payment Amount"), for
the benefit of the Holders of the Class P Certificates, by depositing such
amount into the related Custodial Account within 90 days of notice or discovery
of such waiver meeting the standard set forth in both clauses (i) and (ii)(B)
above; provided, however, that no Servicer shall waive more than 5% of the
Prepayment Charges (by number of Prepayment Charges) set forth on the Prepayment
Charge Schedule in accordance with clauses (i) and (ii)(B) above.
Notwithstanding any other provisions of this Agreement, any payments made by
either Servicer in respect of any waived Prepayment Charges pursuant to clauses
(i) and (ii)(B) above and the preceding sentence shall be deemed to be paid
outside of the Trust Fund.
Subject only to the above-described applicable servicing
standards (the "Accepted Servicing Practices") and the terms of this Agreement
and of the respective Mortgage Loans, each Servicer shall have full power and
authority, acting alone and/or through subservicers as provided in Section 3.03,
to do or cause to be done any and all things that it may deem necessary or
desirable in connection with such servicing and administration, including but
not limited to, the power and authority, subject to the terms hereof (i) to
execute and deliver, on behalf of the Certificateholders and the Trustee,
customary consents or waivers and other instruments and documents, (ii) to
consent to transfers of any related Mortgaged Property and assumptions of the
Mortgage Notes and related Mortgages (but only in the manner provided herein),
(iii) to collect any Insurance Proceeds and other Liquidation Proceeds, and (iv)
subject to Section 3.09, to effectuate foreclosure or other conversion of the
ownership of the Mortgaged Property securing any Mortgage Loan.
Without limiting the generality of the foregoing, each
Servicer, in its own name or in the name of the Trust, the Depositor or the
Trustee, is hereby authorized and empowered by the Trust, the Depositor and the
Trustee, when such Servicer believes it appropriate in its reasonable judgment,
to execute and deliver, on behalf of the Trustee, the Depositor, the
Certificateholders or any of them, any and all instruments of satisfaction or
cancellation, or of partial or full release or discharge and all other
comparable instruments, with respect to the related Mortgage Loans, and with
respect to the related Mortgaged Properties held for the benefit of the
Certificateholders. Each Servicer shall prepare and deliver to the Depositor
and/or the Trustee such documents requiring execution and delivery by any or all
of them as are necessary or appropriate to enable such Servicer to service and
administer the related Mortgage Loans.
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Upon receipt of such documents, the Depositor and/or the Trustee shall execute
such documents and deliver them to the related Servicer. In addition, the
Trustee shall execute, at the written request of any Servicer, and furnish to
such Servicer any special or limited powers of attorney agreeable to the Trustee
and its counsel for each county in which a Mortgaged Property is located and
other documents necessary or appropriate to enable such Servicer to carry out
its servicing and administrative duties hereunder, provided such limited powers
of attorney or other documents shall be prepared by such Servicer and submitted
to the Trustee for review prior to execution.
In accordance with the standards of the first paragraph of
this Section 3.01, each Servicer shall advance or cause to be advanced funds as
necessary for the purpose of effecting the payment of taxes and assessments on
the Mortgaged Properties relating to the Mortgage Loans serviced by such
Servicer in order to preserve the lien on the Mortgaged Property, which advances
shall be reimbursable in the first instance from related collections from the
Mortgagors pursuant to Section 4.04, and further as provided in Section 4.02.
All costs incurred by the related Servicer, if any, in effecting the payments of
such taxes and assessments on the related Mortgaged Properties and related
insurance premiums shall not, for the purpose of calculating monthly
distributions to the Certificateholders, be added to the Stated Principal
Balance under the related Mortgage Loans, notwithstanding that the terms of such
Mortgage Loans so permit.
Section 3.02 DUE-ON-SALE CLAUSES; ASSUMPTION AGREEMENTS.
(a) Except as otherwise provided in this Section 3.02, when
any Mortgaged Property has been or is about to be conveyed by the Mortgagor, the
related Servicer shall to the extent that it has knowledge of such conveyance,
enforce any due-on-sale clause contained in any Mortgage Note or Mortgage, to
the extent permitted under applicable law and governmental regulations, but only
to the extent that such enforcement will not adversely affect or jeopardize
coverage under any Required Insurance Policy. Notwithstanding the foregoing,
neither Servicer shall be required to exercise such rights with respect to a
Mortgage Loan if the Person to whom the related Mortgaged Property has been
conveyed or is proposed to be conveyed satisfies the terms and conditions
contained in the Mortgage Note and Mortgage related thereto and the consent of
the mortgagee under such Mortgage Note or Mortgage is not otherwise so required
under such Mortgage Note or Mortgage as a condition to such transfer. In the
event that the related Servicer is prohibited by law from enforcing any such
due-on-sale clause, or if coverage under any Required Insurance Policy would be
adversely affected, or if nonenforcement is otherwise permitted hereunder, the
related Servicer is authorized, subject to Section 3.02(b), to take or enter
into an assumption and modification agreement from or with the person to whom
such property has been or is about to be conveyed, pursuant to which such person
becomes liable under the Mortgage Note and, unless prohibited by applicable
state law, the Mortgagor remains liable thereon, provided that the related
Mortgage Loan shall continue to be covered (if so covered before the related
Servicer enters such agreement) by the applicable Required Insurance Policies.
Each Servicer, subject to Section 3.02(b), is also authorized with the prior
approval of the insurers under any Required Insurance Policies to enter into a
substitution of liability agreement with such Person, pursuant to which the
original Mortgagor is released from liability and such Person is substituted as
Mortgagor and becomes liable under the Mortgage Note. Notwithstanding the
foregoing, neither Servicer shall be deemed to be in default under this
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Section 3.02(a) by reason of any transfer or assumption that such Servicer
reasonably believes it is restricted by law from preventing.
(b) Subject to the Servicers' duty to enforce any due-on-sale
clause to the extent set forth in Section 3.02(a), in any case in which a
related Mortgaged Property has been conveyed to a Person by a Mortgagor, and
such Person is to enter into an assumption agreement or modification agreement
or supplement to the Mortgage Note or Mortgage that requires the signature of
the Trustee, or if an instrument of release signed by the Trustee is required
releasing the Mortgagor from liability on the related Mortgage Loan, the related
Servicer shall prepare and deliver or cause to be prepared and delivered to the
Trustee for signature and shall direct, in writing, the Trustee to execute the
assumption agreement with the Person to whom the Mortgaged Property is to be
conveyed and such modification agreement or supplement to the Mortgage Note or
Mortgage or other instruments as are reasonable or necessary to carry out the
terms of the Mortgage Note or Mortgage or otherwise to comply with any
applicable laws regarding assumptions or the transfer of the Mortgaged Property
to such Person. In connection with any such assumption, no material term of the
Mortgage Note (including, but not limited to, the Mortgage Rate, the amount of
the Scheduled Payment and any other term affecting the amount or timing of
payment on the related Mortgage Loan) may be changed. In addition, the
substitute Mortgagor and the Mortgaged Property must be acceptable to the
related Servicer in accordance with the servicing standard set forth in Section
3.01. Each Servicer shall notify the Trustee that any such substitution or
assumption agreement has been completed by forwarding to the Trustee the
original of such substitution or assumption agreement, which in the case of the
original shall be added to the related Mortgage File and shall, for all
purposes, be considered a part of such Mortgage File to the same extent as all
other documents and instruments constituting a part thereof. Any fee collected
by any Servicer for entering into an assumption or substitution of liability
agreement will be retained by such Servicer as additional servicing
compensation.
Section 3.03 SUBSERVICERS.
Each Servicer shall perform all of its servicing
responsibilities hereunder or may cause a subservicer to perform any such
servicing responsibilities on its behalf, but the use by a Servicer of a
subservicer shall not release such Servicer from any of its obligations
hereunder with respect to the related Mortgage Loans. Each Servicer shall pay
all fees of each of its subservicers from its own funds, and a subservicer's fee
shall not exceed the Servicing Fee payable to such Servicer hereunder.
At the cost and expense of the related Servicer, without any
right of reimbursement from its Custodial Account, each Servicer shall be
entitled to terminate the rights and responsibilities of a subservicer and
arrange for any servicing responsibilities to be performed by a successor
subservicer; provided, however, that nothing contained herein shall be deemed to
prevent or prohibit the related Servicer, at its option, from electing to
service the related Mortgage Loans itself. In the event that a Servicer's
responsibilities and duties under this Agreement are terminated pursuant to
Section 8.03, such Servicer shall at its own cost and expense terminate the
rights and responsibilities of each subservicer with respect to the Mortgage
Loans serviced by such Servicer effective as of the date of such Servicer's
termination. Each Servicer shall pay all fees, expenses or penalties necessary
in order to terminate the rights and
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responsibilities of each subservicer from such Servicer's own funds without
reimbursement from the Trust Fund.
Notwithstanding the foregoing, no Servicer shall be relieved
of its obligations hereunder with respect to the related Mortgage Loans and
shall be obligated to the same extent and under the same terms and conditions as
if it alone were servicing and administering the related Mortgage Loans. Each
Servicer shall be entitled to enter into an agreement with a subservicer for
indemnification of such Servicer by the subservicer and nothing contained in
this Agreement shall be deemed to limit or modify such indemnification.
Any subservicing agreement and any other transactions or
services relating to the Mortgage Loans involving a subservicer shall be deemed
to be between such subservicer and the the related Servicer alone, and the
Trustee shall not have any obligations, duties or liabilities with respect to
such subservicer including any obligation, duty or liability of the Trustee to
pay such subservicer's fees and expenses or any differential in the amount of
the servicing fee paid hereunder and the amount necessary to induce any
successor servicer to act as successor servicer under this Agreement and the
transactions provided for in this Agreement. For purposes of remittances to the
Trustee pursuant to this Agreement, each Servicer shall be deemed to have
received a payment on a related Mortgage Loan when a subservicer has received
such payment.
Section 3.04 DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF A SERVICER
TO BE HELD FOR TRUSTEE.
Notwithstanding any other provisions of this Agreement, each
Servicer shall transmit to the Trustee as required by this Agreement all
documents and instruments in respect of a related Mortgage Loan coming into the
possession of such Servicer from time to time and shall account fully to the
Trustee for any funds received by such Servicer or that otherwise are collected
by such Servicer as Liquidation Proceeds or Insurance Proceeds in respect of any
such Mortgage Loan. All Mortgage Files and funds collected or held by, or under
the control of, a Servicer in respect of any Mortgage Loans, whether from the
collection of principal and interest payments or from Liquidation Proceeds,
including but not limited to, any funds on deposit in the Custodial Account
maintained by such Servicer, shall be held by such Servicer for and on behalf of
the Trustee and shall be and remain the sole and exclusive property of the
Trustee, subject to the applicable provisions of this Agreement. Each Servicer
also agrees that it shall not create, incur or subject any Mortgage File or any
funds that are deposited in its Custodial Account, the Distribution Account or
in any Escrow Account, or any funds that otherwise are or may become due or
payable to the Trustee for the benefit of the Certificateholders, to any claim,
lien, security interest, judgment, levy, writ of attachment or other
encumbrance, or assert by legal action or otherwise any claim or right of set
off against any Mortgage File or any funds collected on, or in connection with,
a Mortgage Loan, except, however, that each Servicer shall be entitled to set
off against and deduct from any such funds any amounts that are properly due and
payable to such Servicer under this Agreement.
Section 3.05 MAINTENANCE OF HAZARD INSURANCE.
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(a) Each Servicer shall cause to be maintained for each
related Mortgage Loan hazard insurance with extended coverage on the Mortgaged
Property in an amount which is at least equal to the lesser of (i) the Stated
Principal Balance of such Mortgage Loan and (ii) the amount necessary to fully
compensate for any damage or loss to the improvements that are a part of such
property on a replacement cost basis, in each case in an amount not less than
such amount as is necessary to avoid the application of any coinsurance clause
contained in the related hazard insurance policy. Each Servicer shall also cause
to be maintained hazard insurance with extended coverage on each REO Property in
an amount which is at least equal to the lesser of (i) the maximum insurable
value of the improvements which are a part of such REO Property and (ii) the
Stated Principal Balance of the related Mortgage Loan at the time it became an
REO Property. Each Servicer will comply in the performance of this Agreement
with all reasonable rules and requirements of each insurer under any such hazard
policies. Any amounts collected by a Servicer under any such policies (other
than amounts to be applied to the restoration or repair of the property subject
to the related Mortgage or amounts to be released to the Mortgagor in accordance
with the procedures that such Servicer would follow in servicing loans held for
its own account, subject to the terms and conditions of the related Mortgage and
Mortgage Note and in accordance with the servicing standard set forth in Section
3.01) shall be deposited in the Custodial Account maintained by such Servicer,
subject to withdrawal pursuant to Section 4.02. Any cost incurred by a Servicer
in maintaining any such insurance shall not, for the purpose of calculating
distributions to Certificateholders, be added to the Stated Principal Balance of
the related Mortgage Loan, notwithstanding that the terms of such Mortgage Loan
so permit. It is understood and agreed that no earthquake or other additional
insurance is to be required of any Mortgagor other than pursuant to such
applicable laws and regulations as shall at any time be in force and as shall
require such additional insurance. If the Mortgaged Property or REO Property is
at any time in an area identified in the Federal Register by the Federal
Emergency Management Agency as having special flood hazards and flood insurance
has been made available, the related Servicer shall cause to be maintained a
flood insurance policy in respect thereof. Such flood insurance shall be in an
amount equal to the lesser of (i) the Stated Principal Balance of the related
Mortgage Loan and (ii) the maximum amount of such insurance available for the
related Mortgaged Property under the national flood insurance program (assuming
that the area in which such Mortgaged Property is located is participating in
such program).
In the event that any Servicer shall obtain and maintain a
blanket policy with an insurer having a General Policy Rating of B:VI or better
in Best's Key Rating Guide (or such other rating that is comparable to such
rating) insuring against hazard losses on all of the Mortgage Loans serviced by
such Servicer, it shall conclusively be deemed to have satisfied its obligations
as set forth in the first two sentences of this Section 3.05, it being
understood and agreed that such policy may contain a deductible clause, in which
case the related Servicer shall, in the event that there shall not have been
maintained on the related Mortgaged Property or REO Property a policy complying
with the first two sentences of this Section 3.05, and there shall have been one
or more losses which would have been covered by such policy, deposit to its
Custodial Account from its own funds the amount not otherwise payable under the
blanket policy because of such deductible clause. In connection with its
activities as administrator and servicer of the related Mortgage Loans, each
Servicer agrees to prepare and present, on behalf of itself, the Trustee and
Certificateholders, claims under any such blanket policy in a timely fashion in
accordance with the terms of such policy.
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(b) Each Servicer shall keep in force during the term of this
Agreement a policy or policies of insurance covering errors and omissions for
failure in the performance of such Servicer's obligations under this Agreement,
which policy or policies shall be in such form and amount that would meet the
requirements of Xxxxxx Xxx or Xxxxxxx Mac if it were the purchaser of the
related Mortgage Loans, unless the related Servicer has obtained a waiver of
such requirements from Xxxxxx Mae or Xxxxxxx Mac. Each Servicer shall provide
the Trustee, upon request, with copies of such insurance policies and fidelity
bond. Each Servicer shall also maintain a fidelity bond in the form and amount
that would meet the requirements of Xxxxxx Mae or Xxxxxxx Mac, unless such
Servicer has obtained a waiver of such requirements from Xxxxxx Mae or Xxxxxxx
Mac. Each Servicer shall be deemed to have complied with this provision if an
Affiliate of such Servicer has such errors and omissions and fidelity bond
coverage and, by the terms of such insurance policy or fidelity bond, the
coverage afforded thereunder extends to the related Servicer. Any such errors
and omissions policy and fidelity bond shall by its terms not be cancelable
without thirty days' prior written notice to the Trustee. Each Servicer shall
also cause its subservicers to maintain a policy of insurance covering errors
and omissions and a fidelity bond which would meet such requirements.
Section 3.06 PRESENTMENT OF CLAIMS AND COLLECTION OF PROCEEDS.
Each Servicer shall prepare and present on behalf of the
Trustee and the Certificateholders all claims under the Insurance Policies and
take such actions (including the negotiation, settlement, compromise or
enforcement of the insured's claim) as shall be necessary to realize recovery
under such Insurance Policies. Any proceeds disbursed to a Servicer in respect
of such Insurance Policies shall, within two Business Days of its receipt, be
deposited in the Custodial Account maintained by such Servicer upon receipt,
except that any amounts realized that are to be applied to the repair or
restoration of the related Mortgaged Property as a condition precedent to the
presentation of claims on the related Mortgage Loan to the insurer under any
applicable Insurance Policy need not be so deposited (or remitted).
Section 3.07 MAINTENANCE OF INSURANCE POLICIES.
Neither Servicer shall take any action that would result in
noncoverage under any applicable Insurance Policy of any loss which, but for the
actions of the related Servicer would have been covered thereunder. Each
Servicer shall use its best efforts to keep in force and effect (to the extent
that the related Mortgage Loan requires the Mortgagor to maintain such
insurance), any applicable Insurance Policy. Neither Servicer shall cancel or
refuse to renew any Insurance Policy that is in effect at the date of the
initial issuance of the Mortgage Note and is required to be kept in force
hereunder.
Section 3.08 RESERVED.
Section 3.09 REALIZATION UPON DEFAULTED MORTGAGE LOANS; DETERMINATION
OF EXCESS LIQUIDATION PROCEEDS AND REALIZED LOSSES;
REPURCHASES OF CERTAIN MORTGAGE LOANS.
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(a) Each Servicer shall use reasonable efforts to foreclose
upon or otherwise comparably convert the ownership of properties securing such
of the Mortgage Loans as come into and continue in default and as to which no
satisfactory arrangements can be made for collection of delinquent payments. In
connection with such foreclosure or other conversion, each Servicer shall follow
such practices and procedures as it shall deem necessary or advisable and as
shall be normal and usual in its general mortgage servicing activities and the
requirements of the insurer under any Required Insurance Policy; provided that
no Servicer shall be required to expend its own funds in connection with any
foreclosure or towards the restoration of any property unless it shall determine
(i) that such restoration and/or foreclosure will increase the proceeds of
liquidation of the related Mortgage Loan after reimbursement to itself of such
expenses and (ii) that such expenses will be recoverable to it through
Liquidation Proceeds (respecting which it shall have priority for purposes of
withdrawals from the Custodial Account maintained by the related Servicer
pursuant to Section 4.02). If the related Servicer reasonably believes that
Liquidation Proceeds with respect to any such Mortgage Loan would not be
increased as a result of such foreclosure or other action, such Mortgage Loan
will be charged-off and will become a Liquidated Loan. Each Servicer will give
notice of any such charge-off to the Trustee. Each Servicer shall be responsible
for all other costs and expenses incurred by it in any such proceedings;
provided that such costs and expenses shall be Servicing Advances and that it
shall be entitled to reimbursement thereof from the proceeds of liquidation of
the related Mortgaged Property, as contemplated in Section 4.02. If the related
Servicer has knowledge that a Mortgaged Property that such Servicer is
contemplating acquiring in foreclosure or by deed-in-lieu of foreclosure is
located within a one-mile radius of any site with environmental or hazardous
waste risks known to such Servicer, such Servicer shall, prior to acquiring the
Mortgaged Property, consider such risks and only take action in accordance with
its established environmental review procedures.
With respect to any REO Property, the deed or certificate of
sale shall be taken in the name of the Trustee for the benefit of the
Certificateholders (or the Trustee's nominee on behalf of the
Certificateholders). The Trustee's name shall be placed on the title to such REO
Property solely as the Trustee hereunder and not in its individual capacity. The
related Servicer shall ensure that the title to such REO Property references
this Agreement and the Trustee's capacity hereunder. Pursuant to its efforts to
sell such REO Property, the related Servicer shall either itself or through an
agent selected by such Servicer protect and conserve such REO Property in the
same manner and to such extent as is customary in the locality where such REO
Property is located and may, incident to its conservation and protection of the
interests of the Certificateholders, rent the same, or any part thereof, as such
Servicer deems to be in the best interest of such Servicer and the
Certificateholders for the period prior to the sale of such REO Property. Each
Servicer shall prepare for and deliver to the Trustee a statement with respect
to each REO Property that has been rented showing the aggregate rental income
received and all expenses incurred in connection with the management and
maintenance of such REO Property at such times as is necessary to enable the
Trustee to comply with the reporting requirements of the REMIC Provisions. The
net monthly rental income, if any, from such REO Property shall be deposited in
the Custodial Account maintained by the related Servicer no later than the close
of business on each Determination Date. Each Servicer shall perform the tax
reporting and
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withholding related to foreclosures, abandonments and cancellation of
indebtedness income as specified by Sections 1445, 6050J and 6050P of the Code
by preparing and filing such tax and information returns, as may be required.
In the event that the Trust Fund acquires any Mortgaged
Property as aforesaid or otherwise in connection with a default or imminent
default on a Mortgage Loan, the related Servicer shall dispose of such Mortgaged
Property prior to three years after its acquisition by the Trust Fund or, at the
expense of the Trust Fund, request from the Internal Revenue Service more than
60 days prior to the day on which such three-year period would otherwise expire,
an extension of the three-year grace period. The Trustee shall be supplied with
an Opinion of Counsel (such opinion not to be an expense of the Trustee or the
Trust Fund) to the effect that the holding by the Trust Fund of such Mortgaged
Property subsequent to such three-year period will not result in the imposition
of taxes on "prohibited transactions" of REMIC I, REMIC II or REMIC III as
defined in section 860F of the Code or cause either REMIC I, REMIC II or REMIC
III to fail to qualify as a REMIC at any time that any Certificates are
outstanding, in which case the Trust Fund may continue to hold such Mortgaged
Property (subject to any conditions contained in such Opinion of Counsel).
Notwithstanding any other provision of this Agreement, no Mortgaged Property
acquired by the Trust Fund shall be rented (or allowed to continue to be rented)
or otherwise used for the production of income by or on behalf of the Trust Fund
in such a manner or pursuant to any terms that would (i) cause such Mortgaged
Property to fail to qualify as "foreclosure property" within the meaning of
section 860G(a)(8) of the Code or (ii) subject any of REMIC I, REMIC II or REMIC
III to the imposition of any federal, state or local income taxes on the income
earned from such Mortgaged Property under section 860G(c) of the Code or
otherwise, unless the related Servicer has agreed to indemnify and hold harmless
the Trust Fund with respect to the imposition of any such taxes.
The decision of the related Servicer to foreclose on a
defaulted Mortgage Loan shall be subject to a determination by such Servicer
that the proceeds of such foreclosure would exceed the costs and expenses of
bringing such a proceeding. The income earned from the management of any
Mortgaged Properties acquired through foreclosure or other judicial proceeding,
net of reimbursement to the related Servicer for expenses incurred (including
any property or other taxes) in connection with such management and net of
unreimbursed Servicing Fees, Advances, Servicing Advances and any management fee
paid or to be paid with respect to the management of such Mortgaged Property,
shall be applied to the payment of principal of, and interest on, the related
defaulted Mortgage Loans (with interest accruing as though such Mortgage Loans
were still current) and all such income shall be deemed, for all purposes in the
Agreement, to be payments on account of principal and interest on the related
Mortgage Notes and shall be deposited into the Custodial Account maintained by
the related Servicer. To the extent the income received during a Prepayment
Period is in excess of the amount attributable to amortizing principal and
accrued interest at the related Mortgage Rate on the related Mortgage Loan, such
excess shall be considered to be a partial Principal Prepayment for all purposes
hereof.
The Liquidation Proceeds from any liquidation of a Mortgage
Loan, net of any payment to the related Servicer as provided above, shall be
deposited in the Custodial Account maintained by such Servicer on the next
succeeding Determination Date following receipt
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thereof for distribution on the related Distribution Date, except that any
Excess Liquidation Proceeds shall be retained by the related Servicer as
additional servicing compensation.
The proceeds of any Liquidated Loan, as well as any recovery
resulting from a partial collection of Liquidation Proceeds or any income from
an REO Property, shall be applied in the following order of priority: first, to
reimburse the related Servicer for any related unreimbursed Servicing Advances
and Servicing Fees, pursuant to Section 4.02 or this Section 3.09; second, to
reimburse the related Servicer for any unreimbursed Advances, pursuant to
Section 4.02 or this Section 3.09; third, to accrued and unpaid interest (to the
extent no Advance has been made for such amount) on the Mortgage Loan or related
REO Property, at the Net Mortgage Rate to the first day of the month in which
such amounts are required to be distributed; and fourth, as a recovery of
principal of the Mortgage Loan.
(b) On each Determination Date, each Servicer shall determine
the respective aggregate amounts of Excess Liquidation Proceeds and Realized
Losses, if any, with respect to any Mortgage Loan serviced by such Servicer for
the related Prepayment Period.
(c) Neither Servicer has any intent to foreclose on any
Mortgage Loan based on the delinquency characteristics as of the Closing Date;
provided, however, that the foregoing does not prevent the related Servicer from
initiating foreclosure proceedings on any date hereafter if the facts and
circumstances of such Mortgage Loans including delinquency characteristics in
such Servicer's discretion so warrant such action.
Section 3.10 SERVICING COMPENSATION.
As compensation for its activities hereunder, each Servicer
shall be entitled to retain or withdraw from its Custodial Account out of each
payment of interest on each Mortgage Loan serviced by such Servicer included in
the Trust Fund an amount equal to the Servicing Fee. In addition, each Servicer
shall be entitled to recover unpaid Servicing Fees out of Insurance Proceeds or
condemnation proceeds to the extent permitted by Section 4.02.
Additional servicing compensation with respect to Mortgage
Loans in the form of any Excess Liquidation Proceeds, assumption fees, late
payment charges, insufficient funds charges and ancillary income to the extent
such fees or charges are received by the related Servicer, all income and gain
net of any losses realized from Permitted Investments with respect to funds in
or credited to its Custodial Account shall be retained by the related Servicer
to the extent not required to be deposited in its Custodial Account pursuant to
Section 4.02. Each Servicer shall be required to pay all expenses incurred by it
in connection with its servicing activities hereunder (including payment of any
premiums for hazard insurance, as required by Section 3.05 and maintenance of
the other forms of insurance coverage required by Section 3.07) and shall not be
entitled to reimbursement therefor except as specifically provided in Section
4.02.
Section 3.11 REO PROPERTY.
(a) In the event the Trust Fund acquires ownership of any REO
Property in respect of any related Mortgage Loan, the deed or certificate of
sale shall be issued to the
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Trustee, or to its nominee, on behalf of the related Certificateholders. Each
Servicer shall sell any REO Property as expeditiously as possible and in
accordance with the provisions of this Agreement. Pursuant to its efforts to
sell such REO Property, the related Servicer shall protect and conserve such REO
Property in the manner and to the extent required herein, in accordance with the
REMIC Provisions.
(b) The related Servicer shall deposit all funds collected and
received in connection with the operation of any REO Property into the Custodial
Account maintained by such Servicer.
(c) The related Servicer, upon the final disposition of any
REO Property, shall be entitled to reimbursement for any related unreimbursed
Advances, unreimbursed Servicing Advances or Servicing Fees from Liquidation
Proceeds received in connection with the final disposition of such REO Property;
provided, that any such unreimbursed Advances or Servicing Fees as well as any
unpaid Servicing Fees may be reimbursed or paid, as the case may be, prior to
final disposition, out of any net rental income or other net amounts derived
from such REO Property.
Section 3.12 LIQUIDATION REPORTS.
Upon the foreclosure of any Mortgaged Property or the
acquisition thereof by the Trust Fund pursuant to a deed-in-lieu of foreclosure,
the related Servicer shall submit a liquidation report to the Trustee containing
such information as shall be mutually acceptable to the related Servicer and the
Trustee with respect to such Mortgaged Property.
Section 3.13 ANNUAL CERTIFICATE AS TO COMPLIANCE.
(a) Each Servicer shall deliver to the Depositor and the
Trustee not later than March 15th of each year commencing in 2005 (or, in each
case, if such day is not a Business Day, the immediately preceding Business
Day), a certificate of a Authorized Servicer Representative stating, as to each
signatory thereof, that (i) a review of the activities of the related Servicer
during the preceding calendar year and of performance under this Agreement has
been made under such officers' supervision, and (ii) to the best of such
officers' knowledge, based on such review, the related Servicer has fulfilled
all of its obligations under this Agreement throughout such year, or, if there
has been a default in the fulfillment of any such obligation, specifying each
such default known to such officers and the nature and status thereof except for
such defaults as such officer in its good faith judgment believe to be
immaterial.
(b) (i) Each Servicer shall deliver to the Depositor and the
Trustee, on or before March 15th of each year commencing in 2005, a
certification containing the information set forth in Exhibit L. Such
certification shall be signed by the senior officer in charge of servicing of
the related Servicer. In addition, each Servicer shall provide such other
information with respect to the related Mortgage Loans and the servicing and
administration thereof within the control of such Servicer which shall be
required to enable the Depositor and the Trustee to comply with the reporting
requirements of the Securities and Exchange Act of 1934, as amended (the
"Exchange Act").
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(ii) Each Servicer shall indemnify and hold
harmless the Depositor, the Trustee and their respective officers, directors,
agents and affiliates from and against any losses, damages, penalties, fines,
forfeitures, reasonable legal fees and related costs, judgments and other costs
and expenses to the extent arising out of or based upon a breach by such
Servicer or any of its officers, directors, agents or affiliates of its
obligations under this Section 3.13(b), or a breach in any of the
representations in the certification delivered pursuant to clause (b)(i) above,
or such Servicer's gross negligence, bad faith or willful misconduct in
connection therewith. If the indemnification provided for herein is unavailable
to the Depositor and the Trustee as a result of a court of law or other
administrative or regulatory body with authority holding such indemnification
void on the basis of public policy or similar reason, then the related Servicer
agrees that it shall contribute to the amount paid or payable by the Depositor
and the Trustee as a result of the losses, claims, damages or liabilities of the
Depositor or the Trustee in such proportion as is appropriate to reflect the
relative fault of the Trustee or the Depositor on the one hand and the related
Servicer on the other in connection with a breach of such Servicer's obligations
under this Section 3.13(b) or such Servicer's gross negligence, bad faith or
wilful misconduct in connection therewith or a breach of any of the
representations in the certification delivered pursuant to clause (b)(i) above
with respect to the matters covered by this Section 3.13(b)(ii).
Section 3.14 ANNUAL INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS' SERVICING
REPORT.
Not later than March 15th of each year, commencing in 2005,
each Servicer, at its expense, shall cause a nationally recognized firm of
independent certified public accountants to furnish to such Servicer a report
stating that (i) it has obtained a letter of representation regarding certain
matters from the management of such Servicer which includes an assertion that
such Servicer has complied with certain minimum residential mortgage loan
servicing standards, identified in the Uniform Single Attestation Program for
Mortgage Bankers established by the Mortgage Bankers Association of America,
with respect to the servicing of residential mortgage loans during the most
recently completed fiscal or calendar year and (ii) on the basis of an
examination conducted by such firm in accordance with standards established by
the American Institute of Certified Public Accountants, such representation is
fairly stated in all material respects, subject to such exceptions and other
qualifications that may be appropriate. In rendering its report such firm may
rely, as to matters relating to the direct servicing of residential mortgage
loans by subservicers, upon comparable reports of firms of independent certified
public accountants rendered on the basis of examinations conducted in accordance
with the same standards (rendered within one year of such report) with respect
to those subservicers. Promptly upon receipt of such report, each Servicer shall
furnish a copy of such report to the Depositor, the Trustee and each Rating
Agency. Copies of such statement shall be provided by the Trustee to any
Certificateholder upon request at the related Servicer's expense, provided that
such statement is delivered by such Servicer to the Trustee.
Section 3.15 BOOKS AND RECORDS.
Each Servicer shall be responsible for maintaining, and shall
maintain, a complete set of books and records for the related Mortgage Loans
which shall be appropriately identified
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in such Servicer's computer system to clearly reflect the ownership of the
related Mortgage Loans by the Trust. In particular, each Servicer shall maintain
in its possession, available for inspection by the Trustee and shall deliver to
the Trustee upon reasonable prior request and during normal business hours,
evidence of compliance with all federal, state and local laws, rules and
regulations. To the extent that original documents are not required for purposes
of realization of Liquidation Proceeds or Insurance Proceeds, documents
maintained by the related Servicer may be in the form of microfilm or microfiche
or such other reliable means of recreating original documents, including, but
not limited to, optical imagery techniques so long as the related Servicer
complies with the requirements of Accepted Servicing Practices.
Each Servicer shall maintain with respect to each related
Mortgage Loan and shall upon reasonable prior request and during normal business
hours make available for inspection by the Trustee the related servicing file
during the time such Mortgage Loan is subject to this Agreement and thereafter
in accordance with applicable law.
Section 3.16 THE TRUSTEE.
The Trustee shall furnish the Servicers with any powers of
attorney and other documents in form as mutually agreed upon and necessary or
appropriate to enable the Servicers 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 Servicers any court pleadings, requests for trustee's sale or other
documents necessary or desirable to (i) the foreclosure or trustee's sale with
respect to a Mortgaged Property; (ii) any legal action brought to obtain
judgment against any Mortgagor on the Mortgage Note or Security Instrument;
(iii) obtain a deficiency judgment against the Mortgagor; or (iv) enforce any
other rights or remedies provided by the Mortgage Note or Security Instrument or
otherwise available at law or equity.
Section 3.17 REMIC-RELATED COVENANTS.
For as long as each REMIC shall exist, the Trustee shall act
in accordance herewith to assure continuing treatment of such REMIC as a REMIC,
and the Trustee shall comply with any directions of the Seller or the related
Servicer to assure such continuing treatment. In particular, the Trustee shall
not (a) knowingly sell or permit the sale of all or any portion of the Mortgage
Loans or of any investment of deposits in an Account unless such sale is as a
result of a repurchase of the Mortgage Loans pursuant to this Agreement or the
Trustee has
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received a REMIC Opinion prepared at the expense of the Trust Fund; and (b)
other than with respect to a substitution pursuant to the Mortgage Loan Purchase
Agreement or Section 2.04 of this Agreement, as applicable, accept any
contribution to any REMIC after the Startup Day without receipt of a REMIC
Opinion.
Section 3.18 ENFORCING OBLIGATIONS OF THE SERVICERS .
(a) Notwithstanding anything in this Agreement or the Credit
Risk Management Agreement to the contrary, the Trustee shall not have any duty
or obligation to enforce the Credit Risk Management Agreement or to supervise,
monitor or oversee the activities of the Credit Risk Manager or the related
Servicer under the Credit Risk Management Agreement with respect to any action
taken or not taken by the related Servicer pursuant to a recommendation of the
Credit Risk Manager. To the extent that the costs and expenses of the Trustee
related to any termination of the related Servicer, appointment of a Successor
Servicer or the transfer and assumption of servicing by the Trustee with respect
to this Agreement (including, without limitation, (i) all legal costs and
expenses and all due diligence costs and expenses associated with an evaluation
of the potential termination of the related Servicer as a result of an event of
default by such Person and (ii) all costs and expenses associated with the
complete transfer of servicing, including all servicing files and all servicing
data and the completion, correction or manipulation of such servicing data as
may be required by the Successor Servicer to correct any errors or
insufficiencies in the servicing data or otherwise to enable the successor
service to service the related Mortgage Loans in accordance with this Agreement)
are not fully and timely reimbursed by the related Servicer, the Trustee shall
be entitled to reimbursement of such costs and expenses from the Distribution
Account.
(b) If the Trustee acts as a Successor Servicer to a Servicer,
it will not assume liability for the representations and warranties of such
Servicer contained herein.
Section 3.19 RELEASE OF MORTGAGE FILES.
(a) Upon becoming aware of the payment in full of any Mortgage
Loan, or the receipt by the related Servicer of a notification that payment in
full has been escrowed in a manner customary for such purposes for payment to
Certificateholders on the next Distribution Date, the related Servicer will
promptly furnish to the Trustee and the Custodian, on behalf of the Trustee, two
copies of a certification substantially in the form of Exhibit H hereto signed
by a Authorized Servicer Representative or in a mutually agreeable electronic
format which will, in lieu of a signature on its face, originate from a
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 maintained by
the related Servicer pursuant to Article V have been or will be so deposited)
and shall request that the Custodian, on behalf of the Trustee, deliver to such
Servicer the related Mortgage File. Within five (5) Business Days of receipt of
such certification and request, the Custodian, on behalf of the Trustee, shall
release the related Mortgage File to the related Servicer and the Trustee and
Custodian shall have no further responsibility with regard to such Mortgage
File. Upon any such payment in full, the related Servicer is authorized, to
give, as agent for the
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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 maintained by such Servicer.
(b) From time to time and as appropriate for the servicing or
foreclosure of any Mortgage Loan and in accordance with this Agreement, the
Trustee shall execute such documents as shall be prepared and furnished to the
Trustee by the related Servicer (in form reasonably acceptable to the Trustee)
and as are necessary to the prosecution of any such proceedings. The Custodian,
on behalf of the Trustee, shall, upon the written request of the related
Servicer, and delivery to the Custodian, on behalf of the Trustee, of two copies
of a request for release signed by a Authorized Servicer Representative
substantially in the form of Exhibit H (or in a mutually agreeable electronic
format which will, in lieu of a signature on its face, originate from a
Authorized Servicer Representative), release the related Mortgage File held in
its possession or control to the related Servicer. Such request for release
shall obligate the related Servicer to return the Mortgage File to the Custodian
on behalf of the Trustee, when the need therefor by such Person no longer exists
unless the Mortgage Loan shall be liquidated, in which case, upon receipt of a
certificate of a Authorized Servicer Representative similar to that hereinabove
specified, the Mortgage File shall be released by the Custodian, on behalf of
the Trustee, to the related Servicer.
Section 3.20 DOCUMENTS, RECORDS AND FUNDS IN POSSESSION OF THE RELATED
SERVICER TO BE HELD FOR TRUSTEE.
(a) Each Servicer (to the extent required by this) shall
transmit to the Trustee or to Custodian such documents and instruments coming
into the possession of such Person from time to time as are required by the
terms hereof to be delivered to the Trustee or the Custodian. Any funds received
by a Servicer in respect of any Mortgage Loan or which otherwise are collected
by a Servicer as Liquidation Proceeds or Insurance Proceeds in respect of any
Mortgage Loan shall be held for the benefit of the Trustee and the
Certificateholders subject to the right of the related Servicer to retain its
Servicing Fee and other amounts as provided in this Agreement.
Section 3.21 POSSESSION OF CERTAIN INSURANCE POLICIES AND DOCUMENTS.
Each Servicer shall retain possession and custody of the
originals (to the extent available) of any Insurance Policies, or certificate of
insurance if applicable, and any certificates of renewal as to the foregoing as
may be issued from time to time as contemplated by this Agreement. Until all
amounts distributable in respect of the Certificates have been distributed in
full, the Trustee (or the Custodian, as directed by the Trustee) shall retain
possession and custody of each Mortgage File in accordance with and subject to
the terms and conditions of this Agreement.
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Section 3.22 ANNUAL CERTIFICATE AS TO COMPLIANCE.
(a) The Depositor shall prepare and file or caused to be
prepared and filed the initial Form 8-K. Within 15 days after each Distribution
Date, the Trustee shall, in accordance with industry standards, file with the
Commission via the Electronic Data Gathering and Retrieval System ("XXXXX"), a
Form 8-K with a copy of the statement to be furnished by the Trustee to the
Certificateholders for such Distribution Date as an exhibit thereto. Prior to
January 30, 2005, the Trustee shall, in accordance with industry standards, file
a Form 15 Suspension Notice with respect to the Trust Fund. Prior to March 30,
2005 and annually thereafter, if required, the Trustee shall, subject to
subsection (d) below, file a Form 10-K, in substance conforming to industry
standards, with respect to the Trust Fund. Such Form 10K shall be signed by the
Depositor and shall include, to the extent available, as exhibits (i) each
Servicer's annual statement of compliance described under Section 3.13 hereof,
(ii) each Servicer's accountants report described under Section 3.14 and (iii)
the Form 10-K certification signed by the Depositor. If items (i), (ii) and
(iii) in the preceding sentence are not timely delivered, the Trustee shall file
an amended Form 10-K including such documents as exhibits reasonably promptly
after they are delivered to the Trustee. The Depositor hereby grants to the
Trustee a limited power of attorney to execute and file each Form 8-K and the
Form 15 on behalf of the Depositor. Such power of attorney shall continue until
either the earlier of (i) receipt by the Trustee from the Depositor of written
termination of such power of attorney and (ii) the termination of the Trust
Fund. The Depositor agrees to promptly furnish to the Trustee, from time to time
upon request, such further information, reports and financial statements within
its control related to this Agreement and the Mortgage Loans as the Trustee
reasonably deems appropriate to prepare and file a Form 8-K and the Form 15 with
the Commission. The Trustee will reasonably cooperate with the Depositor in
connection with any additional filings with respect to the Trust Fund as the
Depositor deems necessary under the Exchange Act. Copies of all reports filed by
the Trustee under the Exchange Act shall be sent to the Depositor.
(b) In connection with the filing of any 10-K hereunder, the
Trustee shall sign a certification (in the form attached hereto as Exhibit M) on
behalf of the Depositor regarding certain aspects of the Form 10-K certification
signed by the Depositor, provided, however, that the Trustee shall not be
required to undertake an analysis of any accountant's report attached as an
exhibit to the Form 10-K.
(c) (i) The Trustee shall indemnify and hold harmless the
Depositor and its officers, directors and Affiliates from and against any
losses, damages, penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgments and other costs and expenses arising out of or
based upon a breach of the Trustee's obligations under this Section 3.22 or the
Trustee's negligence, bad faith or willful misconduct in connection therewith.
(ii) The Depositor shall indemnify and hold harmless
the Trustee and its officers, directors and Affiliates from and against any
losses, damages, penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgments and other costs and expenses arising out of or
based upon a breach of the obligations of the Depositor under this Section 3.22
or the Depositor's negligence, bad faith or willful misconduct in connection
therewith.
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(iii) If the indemnification provided for herein is
unavailable or insufficient to hold harmless the Depositor or the Trustee, as
applicable, then the other party, in connection with a breach of its respective
obligations under this Section 3.22 or its respective negligence, bad faith or
willful misconduct in connection therewith, agrees that it shall contribute to
the amount paid or payable by the other party as a result of the losses, claims,
damages or liabilities of the other party in such proportion as is appropriate
to reflect the relative fault and the relative benefit of the Depositor on the
one hand and the Trustee on the other.
(d) Nothing shall be construed from the foregoing subsections
(a), (b) and (c) to require the Trustee or any officer, director or Affiliate
thereof to sign any Form 10-K or any certification contained therein.
Furthermore, the inability of the Trustee to file a Form 10-K as a result of the
lack of required information as set forth in Section 3.22(a) or required
signatures on such Form 10-K or any certification contained therein shall not be
regarded as a breach by the Trustee of any obligation under this Agreement.
(e) Notwithstanding the provisions of Section 11.01, this
Section 3.22 may be amended without the consent of the Certificateholders.
Section 3.23 UCC.
The Seller agrees to execute continuation statements for any
Uniform Commercial Code financing statements which the Seller has informed the
Trustee were filed on the Closing Date in connection with the Trust. The Seller
shall file any financing statements or amendments and continuation statements
thereto required by any change in the Uniform Commercial Code.
Section 3.24 OPTIONAL PURCHASE OF DEFAULTED MORTGAGE LOANS.
With respect to any Mortgage Loans which as of the first day
of a Calendar Quarter is delinquent in payment by 91 days or more or is an REO
Property, the Seller shall have the right to purchase such Mortgage Loan or REO
Property from the Trust at a price equal to the Purchase Price.
If at any time the Seller remits to the Trustee a payment for
deposit in the Distribution Account covering the amount of the Purchase Price
for such a Mortgage Loan, then the Trustee shall execute the assignment of such
Mortgage Loan at the request of the Seller without recourse to the Seller which
shall succeed to all the Trustee's right, title and interest in and to such
Mortgage Loan, and all security and documents relative thereto. Such assignment
shall be an assignment outright and not for security. The Seller will thereupon
own such Mortgage, and all such security and documents, free of any further
obligation to the Trustee or the Certificateholders with respect thereto.
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ARTICLE IV
ACCOUNTS
Section 4.01 COLLECTION OF MORTGAGE LOAN PAYMENTS; CUSTODIAL ACCOUNT.
(a) Each Servicer shall make reasonable efforts in accordance
with Accepted Servicing Practices to collect all payments called for
under the terms and provisions of the related Mortgage Loans to the
extent such procedures shall be consistent with this Agreement and the
terms and provisions of any related Required Insurance Policy.
Consistent with the foregoing, each Servicer may in its discretion (i)
waive any late payment charge and (ii) extend the due dates for
payments due on a Mortgage Note for a Mortgage Loan for a period not
greater than 180 days; provided, however no such extension shall be
materially adverse to the Certificateholders. In the event of any such
arrangement, the related Servicer shall make Advances on the related
Mortgage Loan during the scheduled period in accordance with the
amortization schedule of such Mortgage Loan without modification
thereof by reason of such arrangements, and shall be entitled to
reimbursement therefor in accordance with Section 5.01. Neither
Servicer shall be required to institute or join in litigation with
respect to collection of any payment (whether under a Mortgage,
Mortgage Note or otherwise or against any public or governmental
authority with respect to a taking or condemnation) if it reasonably
believes that enforcing the provision of the Mortgage or other
instrument pursuant to which such payment is required is prohibited by
applicable law. In addition, if (x) a Mortgage Loan is in default or
default is imminent or (y) the related Servicer delivers to the Trustee
a REMIC Opinion, the related Servicer may, (A) amend the related
Mortgage Note to reduce the Mortgage Rate applicable thereto, provided
that such reduced Mortgage Rate shall in no event be lower than 5.00%
with respect to any Mortgage Loan and (B) amend any Mortgage Note for a
Mortgage Loan to extend to the maturity thereof.
(b) Each Servicer shall establish and maintain a segregated
Custodial Account (which shall at all times be an Eligible Account)
with a depository institution in the name of such Servicer for the
benefit of the Trustee on behalf of the Certificateholders and
designated "JPMorgan Chase Bank, as trustee for registered holders of
Nomura Asset Acceptance Corporation, Mortgage Pass-Through
Certificates, Series 2004-AP1". On behalf of the Trust Fund, each
Servicer shall deposit or cause to be deposited in the clearing account
in which it customarily deposits payments and collection on mortgage
loans in connection with its mortgage loan servicing activities on a
daily basis and in no event more than one Business Day after the
related Servicer's receipt thereof, and shall thereafter deposit in the
related Custodial Account, in no event more than two Business Days
after the related Servicer's receipt thereof, except as otherwise
specifically provided herein, the following payments and collections
remitted by subservicers or received by it in respect of the related
Mortgage Loans subsequent to the Cut-off Date (other than in respect of
principal and interest due on the related Mortgage Loans on or before
the Cut-off Date) and the following amounts required to be deposited
hereunder:
(i) all payments on account of principal, including Principal
Prepayments and Subsequent Recoveries, on the related Mortgage Loans;
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(ii) all payments on account of interest on the related
Mortgage Loans net of the related Servicing Fee permitted under Section
3.10;
(iii) all Liquidation Proceeds, Insurance Proceeds and
condemnation proceeds with respect to the related Mortgage Loans, other
than proceeds to be applied to the restoration or repair of the related
Mortgaged Property or released to the Mortgagor in accordance with the
related Servicer's normal servicing procedures;
(iv) any amount required to be deposited by the related
Servicer pursuant to Section 4.01(c) in connection with any losses on
Permitted Investments;
(v) any amounts required to be deposited by the related
Servicer pursuant to Section 3.05;
(vi) any amounts paid by an Advance Financing Person in
respect of Advances or Servicing Advances;
(vii) any Prepayment Charges collected by the related Servicer
in connection with the Principal Prepayment of any of the Mortgage
Loans and any Servicer Prepayment Charge Payment Amounts; and
(viii) any other amounts required to be deposited hereunder.
The foregoing requirements for deposit by the related Servicer
into the Custodial Account maintained by such Servicer shall be exclusive, it
being understood and agreed that, without limiting the generality of the
foregoing, payments in the nature of late payment charges or assumption fees, if
collected, need not be deposited by the related Servicer. In the event that the
related Servicer shall deposit any amount not required to be deposited and not
otherwise subject to withdrawal pursuant to Section 4.02, it may at any time
withdraw or direct the institution maintaining the related Custodial Account, to
withdraw such amount from the related Custodial Account, any provision herein to
the contrary notwithstanding. Such withdrawal or direction may be accomplished
by delivering written notice thereof to the institution maintaining the related
Custodial Account, that describes the amounts deposited in error in the related
Custodial Account. Each Servicer shall maintain adequate records with respect to
all withdrawals made pursuant to this Section. All funds deposited in the
related Custodial Account shall be held in trust for the Certificateholders
until withdrawn in accordance with Section 4.02.
(c) The institution that maintains the related Custodial
Account or other authorized entity shall invest the funds in the related
Custodial Account, in the manner directed by the related Servicer, in Permitted
Investments which shall mature not later than the next succeeding Remittance
Date and shall not be sold or disposed of prior to its maturity. All such
Permitted Investments shall be made in the name of the Trustee, for the benefit
of the Certificateholders. All income and gain net of any losses realized from
any such investment shall be for the benefit of the related Servicer as
servicing compensation and shall be remitted to it monthly as provided herein.
The amount of any losses incurred in the related Custodial Account in respect of
any such investments shall be deposited by the related Servicer into the related
Custodial Account, out of its own funds.
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(d) The related Servicer shall give at least 30 days advance
notice to the Trustee, the Seller, each Rating Agency and the Depositor of any
proposed change of location of the related Custodial Account prior to any change
thereof.
Section 4.02 PERMITTED WITHDRAWALS FROM THE CUSTODIAL ACCOUNT.
(a) Each Servicer may from time to time make withdrawals from
the related Custodial Account for the following purposes:
(i) to pay itself (to the extent not previously paid to or
withheld by the related Servicer), as servicing compensation in
accordance with Section 3.10, that portion of any payment of interest
that equals the Servicing Fee for the period with respect to which such
interest payment was made, and, as additional servicing compensation,
those other amounts set forth in Section 3.10;
(ii) to reimburse the related Servicer or an Advance Financing
Person for (A) any unreimbursed Advances to the extent of amounts
received which represent late recoveries of payments of principal
and/or interest (net of the related Servicing Fees), Liquidation
Proceeds and Insurance Proceeds on Mortgage Loans serviced by such
Servicer with respect to which such Advances were made in accordance
with the provisions of Section 5.01; and (B) any unreimbursed Advances
with respect to the final liquidation of a Mortgage Loan that are
Nonrecoverable Advances, but only to the extent that late recoveries of
payments of principal and/or interest, Liquidation Proceeds and
Insurance Proceeds received with respect to such Mortgage Loan are
insufficient to reimburse the related Servicer or an Advance Financing
Person for such unreimbursed Advances or (C) subject to Section
4.02(b), any unreimbursed Advances to the extent of Amounts Held For
Future Distribution funds held in the related Custodial Account that
were not included in the Available Distribution Amount for the
preceding Distribution Date;
(iii) to reimburse the related Servicer or an Advance
Financing Person for any Nonrecoverable Advances;
(iv) to reimburse the related Servicer from Insurance Proceeds
for Insured Expenses covered by the related Insurance Policy;
(v) to pay the related Servicer any unpaid Servicing Fees and
to reimburse it or any Advance Financing Person for any unreimbursed
Servicing Advances, provided, however, that such Servicer's or such
Advance Financing Person's right to reimbursement for Servicing
Advances pursuant to this subclause (v) with respect to any Mortgage
Loan shall be limited to amounts received on particular Mortgage
Loan(s) (including, for this purpose, late recoveries of payments of
principal and/or interest, Liquidation Proceeds, Insurance Proceeds,
condemnation proceeds and purchase and repurchase proceeds) that
represent late recoveries of the payments for which such Servicing
Advances were made;
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(vi) to pay to the Seller or the Depositor with respect to
each Mortgage Loan or property acquired in respect thereof that has
been purchased pursuant to Section 2.02, 2.03 or 3.24, all amounts
received thereon and not taken into account in determining the related
Stated Principal Balance of such repurchased Mortgage Loan;
(vii) to pay any expenses recoverable by the related Servicer
pursuant to Section 7.04;
(viii) to withdraw any amount deposited in the related
Custodial Account and not required to be deposited therein; and
(ix) to clear and terminate the related Custodial Account upon
termination of this Agreement pursuant to Section 10.01 hereof.
In addition, no later than 3:00 p.m. Eastern time on the
Remittance Date, each Servicer shall withdraw from its Custodial Account and
remit to the Trustee (a) all amounts deposited in the Custodial Account as of
the close of business on the last day of the related Due Period (net of charges
against or withdrawals from the Custodial Account pursuant to this Section
4.02), plus (b) all Advances, if any, which the related Servicer is obligated to
make pursuant to Section 5.01, minus (c) any amounts attributable to Principal
Prepayments, Liquidation Proceeds, Insurance Proceeds or condemnation proceeds
received after the applicable Prepayment Period, which amounts shall be remitted
on the following Remittance Date, together with any Compensating Interest
required to be deposited in the related Custodial Account in connection with
such Principal Prepayment in accordance with Section 5.02, and minus (d) any
amounts attributable to Scheduled Payments collected but due on a Due Date or
Due Dates subsequent to the first day of the month in which such Remittance Date
occurs, which amounts shall be remitted on the Remittance Date next succeeding
the Due Date related to such Scheduled Payment.
Each Servicer shall keep and maintain separate accounting, on
a Mortgage Loan by Mortgage Loan basis, for the purpose of justifying any
withdrawal from the related Custodial Account pursuant to subclauses (i), (ii),
(iv), (v) and (vi) above. Prior to making any withdrawal from the related
Custodial Account pursuant to subclause (iii), the related Servicer shall
deliver to the Trustee an Officer's Certificate of a Authorized Servicer
Representative indicating the amount of any previous Advance or Servicing
Advance determined by such Servicer to be a Nonrecoverable Advance and
identifying the related Mortgage Loan(s), and their respective portions of such
Nonrecoverable Advance.
(b) Notwithstanding the foregoing, any Amounts Held For Future
Distribution withdrawn by a Servicer as permitted in Section 4.02(a)(ii) in
reimbursement of Advances previously made by such Servicer shall be
appropriately reflected in such Servicer's records and replaced by such Servicer
by deposit in the related Custodial Account, no later than the close of business
on any future Remittance Date on which the funds on deposit in the related
Custodial Account shall be less than the amount required to be remitted to the
Trust on such Remittance Date; provided, however that if the rating of the
related Servicer (including any Successor Servicer) is less than "BBB", such
Servicer shall be required to replace such funds by deposit to
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the Distribution Account, no later than the close of business on the Remittance
Date immediately following the Due Period or Prepayment Period for which such
amounts relate.
Section 4.03 REPORTS TO TRUSTEE.
On or before the tenth calendar day of each month, each Servicer shall
furnish to the Trustee electronically in a format reasonably acceptable to the
Trustee loan accounting reports in the investor's assigned loan number order to
document the payment activity on each Mortgage Loan serviced by such Servicer on
an individual mortgage loan basis. With respect to each month, such loan
accounting reports shall contain the following:
(i) With respect to each Scheduled Payment (on both an actual
and scheduled basis with respect to mortgage loan balances and on an
actual basis with respect to paid-through dates), the amount of such
remittance allocable to principal (including a separate breakdown of
any Principal Prepayment, including the amount of any Prepayment
Interest Shortfall);
(ii) with respect to each Monthly Payment, the amount of such
remittance allocable to scheduled interest;
(iii) the amount of any Prepayment Charges collected by the
related Servicer;
(iv) the amount of servicing compensation received by the
related Servicer during the prior calendar month;
(v) the aggregate Stated Principal Balance of the related
Mortgage Loans;
(vi) the aggregate amount of Advances made by the related
Servicer pursuant to Section 5.01;
(vii) the aggregate of any expenses reimbursed to the related
Servicer during the prior calender month pursuant to Section 4.02; and
(viii) the number and aggregate outstanding principal balances
of Mortgage Loans (a) delinquent (1) 30 to 59 days, (2) 60 to 89 days,
(3) 90 days or more; (b) as to which foreclosure has commenced; and (c)
as to which REO Property has been acquired.
Section 4.04 COLLECTION OF TAXES; ASSESSMENTS AND SIMILAR ITEMS; ESCROW
ACCOUNTS.
To the extent required by the related Mortgage Note, the
related Servicer shall establish and maintain one or more accounts (each, an
"Escrow Account") and deposit and retain therein all collections from the
Mortgagors (or advances by the related Servicer) for the payment of taxes,
assessments, hazard insurance premiums or comparable items for the account of
the Mortgagors. Nothing herein shall require the related Servicer to compel a
Mortgagor to establish an Escrow Account in violation of applicable law.
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Withdrawals of amounts so collected from the Escrow Accounts
may be made only to effect timely payment of taxes, assessments, hazard
insurance premiums, condominium or PUD association dues, or comparable items, to
reimburse the related Servicer out of related collections for any payments made
with respect to each Mortgage Loan pursuant to Section 3.01 (with respect to
taxes and assessments and insurance premiums) and Section 3.05 (with respect to
hazard insurance), to refund to any Mortgagors any sums as may be determined to
be overages, to pay interest, if required by law or the terms of the related
Mortgage or Mortgage Note, to such Mortgagors on balances in the Escrow Account,
to remove amounts deposited in error or to clear and terminate the Escrow
Account at the termination of this Agreement in accordance with Section 10.01
thereof. The Escrow Account shall not be a part of the Trust Fund.
Section 4.05 RESERVED .
Section 4.06 DISTRIBUTION ACCOUNT.
(a) The Trustee shall establish and maintain in the name of
the Trustee, for the benefit of the Certificateholders, the Distribution Account
as a segregated non-interest bearing trust account or accounts. The Trustee will
deposit in the Distribution Account as identified by the Trustee and as received
by the Trustee, the following amounts:
(i) 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 and all payments and recoveries in respect of interest on
the Mortgage Loans withdrawn by the Servicers from the Custodial Accounts and
remitted by the Servicers to the Trustee;
(ii) Any Advance and any Compensating Interest
Payments;
(iii) Any Prepayment Charges collected by the
Servicers in connection with the Principal Prepayment of any of the Mortgage
Loans (including any Servicer Prepayment Charge Payment Amounts);
(iv) Any Insurance Proceeds or Liquidation Proceeds
received by or on behalf of the Trustee or which were not deposited in a
Custodial Account;
(v) The Repurchase Price with respect to any Mortgage
Loans purchased by the Seller or Section 2.02 or 2.03, any amounts which are to
be treated pursuant to Section 2.04 of this Agreement as the payment of such a
Repurchase Price, the Repurchase Price with respect to any Mortgage Loans
purchased by the Depositor pursuant to Section 3.26, and all proceeds of any
Mortgage Loans or property acquired with respect thereto repurchased by the
Depositor or its designee pursuant to Section 10.01;
(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 Trustee and required to be deposited in the Distribution Account pursuant to
this Agreement.
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(b) All amounts deposited to the Distribution Account shall be
held by the Trustee in the name of the Trustee in trust for the benefit of the
Certificateholders in accordance with the terms and provisions of this
Agreement. The requirements for crediting the Distribution Account shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments in the nature of late payment charges or assumption,
tax service, statement account or payoff, substitution, satisfaction, release
and other like fees and charges, need not be credited by any Servicer to the
Distribution Account.
(c) The amount at any time credited to the Distribution
Account shall be held uninvested.
Section 4.07 PERMITTED WITHDRAWALS AND TRANSFERS FROM THE DISTRIBUTION
ACCOUNT.
(a) The Trustee will, from time to time make or cause to be
made such withdrawals or transfers from the Distribution Account pursuant to
this Agreement for the following purposes:
(i) On an ongoing basis, Trustee to pay any expenses
recoverable by the Trustee pursuant to this Agreement.
(ii) to reimburse the Trustee as Successor Servicer
or the related Servicer for any Advance or Servicing Advance of its own funds,
the right of the Trustee as Successor Servicer or the related Servicer to
reimbursement pursuant to this subclause (ii) being limited to amounts received
on a particular Mortgage Loan (including, for this purpose, the Purchase Price
therefor, Insurance Proceeds, Liquidation Proceeds and condemnation proceeds)
which represent late payments or recoveries of the principal of or interest on
such Mortgage Loan respecting which such Advance or Servicing Advance was made;
(iii) to reimburse the Trustee or the related
Servicer from Insurance Proceeds or Liquidation Proceeds relating to a
particular Mortgage Loan for amounts expended by the Trustee as Successor
Servicer or the related Servicer in good faith in connection with the
restoration of the related Mortgaged Property which was damaged by an uninsured
cause or in connection with the liquidation of such Mortgage Loan;
(iv) to reimburse the Trustee as Successor Servicer
or the related Servicer from Insurance Proceeds relating to a particular
Mortgage Loan for insured expenses incurred with respect to such Mortgage Loan
and to reimburse the Trustee as Successor Servicer or the related Servicer from
Liquidation Proceeds from a particular Mortgage Loan for Liquidation Expenses
incurred with respect to such Mortgage Loan;
(v) to reimburse the Trustee as Successor Servicer or
the related Servicer for advances of funds pursuant to this Agreement, 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
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Proceeds and condemnation proceeds) which represent late recoveries of the
payments for which such advances were made;
(vi) to reimburse the Trustee as Successor Servicer
or the related Servicer for any Advance or advance, after a Realized Loss has
been allocated with respect to the related Mortgage Loan if the Advance or
advance has not been reimbursed pursuant to clauses (ii) and (v);
(vii) to pay the Credit Risk Management Fee to the
Credit Risk Manager, provided, however, that upon the termination of the Credit
Risk Manager pursuant to Section 4.08(b) hereof, the amount of the Credit Risk
Management Fee (or any portion thereof) previously payable to the Credit Risk
Manager as described herein shall be paid to the Seller;
(viii) to reimburse the Trustee for expenses, costs
and liabilities incurred by and reimbursable to it pursuant to this Agreement
(including the expenses of the Trustee in connection with a tax audit in
connection with the performance of its obligations pursuant to Section 9.12);
(ix) to pay to the Trust Fund, as additional
servicing compensation, any Excess Liquidation Proceeds to the extent not
retained by the related Servicer;
(x) to reimburse or pay the related Servicer any such
amounts as are due thereto under this Agreement and have not been retained by or
paid to the related 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) after the occurrence of an event of default
under the Advance Facility, to reimburse any Advance Financing Person for any
Advances or Servicing Advances made by such Advance Financing Person pursuant to
Section 5.01(b) and not reimbursed to such Advance Financing Person pursuant to
Section 4.02;
(xiii) to reimburse the Custodian for expenses, costs
and liabilities incurred or reimbursable to it pursuant to this Agreement;
(xiv) to remove amounts deposited in error; and
(xv) to clear and terminate the Distribution Account
pursuant to Section 10.01.
(b) The Trustee shall keep and maintain separate accounting,
on a Mortgage Loan by Mortgage Loan basis, for the purpose of accounting for any
reimbursement from the Distribution Account pursuant to subclauses (ii) through
(v), inclusive, and (vii) or with respect to any such amounts which would have
been covered by such subclauses had the amounts not been retained by the Trustee
without being deposited in the Distribution Account under Section 4.07.
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(c) On each Distribution Date, the Trustee shall distribute
the Available Distribution Amount in the Distribution Account to the holders of
the Certificates in accordance with Section 5.04.
Section 4.08 DUTIES OF THE CREDIT RISK MANAGER; TERMINATION.
(a) The Depositor appoints The Murrayhill Company as Credit
Risk Manager. For and on behalf of the Depositor, 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 Credit Risk Management Agreement and the Credit Risk
Manager shall look solely to the Servicers 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 Servicers, the Trustee, each Rating Agency and the Credit Risk Manager.
Notwithstanding the foregoing, the termination of the Credit Risk Manager
pursuant to this Section 4.08(a) shall not become effective until the
appointment of a successor Credit Risk Manager.
(b) Within six months of the Closing Date, the Seller may, at
its option, terminate the Credit Risk Manager if, in its reasonable judgement,
(i) the value of the servicing rights with respect to the Mortgage Loans is
adversely affected as a result of the presence of the Credit Risk Manager or
(ii) the presence of the Credit Risk Manager impairs the ability of the Seller
to transfer the Servicing Rights with respect to the Mortgage Loans as permitted
by this Agreement. Upon the termination of the Credit Risk Manager, the Seller
may, at its option, cause the Depositor to appoint a successor Credit Risk
Manager. Notice of such termination shall be provided by the Seller to the
Rating Agencies, the Trustee, the Depositor and the Credit Risk Manager. Upon
the appointment of a successor Credit Risk Manager, the Depositor shall provide
written notice thereof to each Rating Agency, the Trustee and the Credit Risk
Manager.
If the Credit Risk Manager is terminated pursuant to this
Section 4.08(b), the Credit Risk Manager shall only be entitled to a fee equal
to 0.0050% with respect to each 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 Seller
pursuant to Section 4.07(vii).
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Section 4.09 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 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 Servicers under the
Credit Risk Management Agreement or of errors in judgment; provided, however,
that this provision shall not protect the Credit Risk Manager or any such person
against liability that would otherwise be imposed by reason of willful
malfeasance, bad faith or gross negligence in its performance of its duties
under this Agreement or the Credit Risk Management Agreement. The Credit Risk
Manager and any director, officer, employee or agent of the Credit Risk Manager
may rely in good faith on any document of any kind prima facie properly executed
and submitted by any Person respecting any matters arising hereunder, and may
rely in good faith upon the accuracy of information furnished by the Servicers
pursuant to the Credit Risk Management Agreement in the performance of its
duties thereunder and hereunder.
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ARTICLE V
ADVANCES AND DISTRIBUTIONS
Section 5.01 ADVANCES; ADVANCE FACILITY.
(a) Each Servicer shall make an Advance with respect to any
Mortgage Loan serviced by such Servicer and deposit such Advance in the
Distribution Account no later than 3:00 p.m. Eastern time on the Remittance Date
in immediately available funds. The related Servicer shall be obligated to make
any such Advance only to the extent that such advance would not be a
Nonrecoverable Advance. If the related Servicer shall have determined that it
has made a Nonrecoverable Advance or that a proposed Advance or a lesser portion
of such Advance would constitute a Nonrecoverable Advance, such Servicer shall
deliver (i) to the Trustee for the benefit of the Certificateholders funds
constituting the remaining portion of such Advance, if applicable, and (ii) to
the Depositor, each Rating Agency and the Trustee an Officer's Certificate
setting forth the basis for such determination.
In lieu of making all or a portion of such Advance from its
own funds, the related Servicer may (i) cause to be made an appropriate entry in
its records relating to the Custodial Account that any Amounts Held for Future
Distribution has been used by the related Servicer in discharge of its
obligation to make any such Advance and (ii) transfer such funds from the
related Custodial Account to the Distribution Account. Any funds so applied and
transferred shall be replaced by the related Servicer by deposit in the
Distribution Account, no later than the close of business on any future
Remittance Date on which the funds on deposit in the Custodial Account shall be
less than the amount required to be remitted to the Trust on such Remittance
Date; provided, however that if the rating of the related Servicer (including
any Successor Servicer) is less than "BBB", the related Servicer shall be
required to replace such funds by deposit to the Distribution Account, no later
than the close of business on the Remittance Date immediately following the Due
Period or Prepayment Period for which such amounts relate.
The related Servicer shall be entitled to be reimbursed from
the related Custodial Account for all Advances of its own funds made pursuant to
this Section as provided in Section 4.02. The obligation to make Advances with
respect to any Mortgage Loan shall continue until such Mortgage Loan is paid in
full or the related Mortgaged Property or related REO Property has been
liquidated or until the purchase or repurchase thereof (or substitution
therefor) from the Trust Fund pursuant to any applicable provision of this
Agreement, except as otherwise provided in this Section 5.01.
Subject to and in accordance with the provisions of Article
VIII hereof, in the event that the related Servicer fails to make such Advance,
then the Trustee, as a Successor Servicer, shall be obligated to make such
Advance only to the extent such Advance, if made, would not constitute a
Nonrecoverable Advance, subject to the provisions of Sections 5.01 and 8.02.
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(b)(i) Each Servicer is hereby authorized to enter into a
financing or other facility (any such arrangement, an "Advance Facility"), the
documentation for which complies with Section 5.01(b)(v) below, under which (1)
a Servicer assigns or pledges its rights under this Agreement to be reimbursed
for any or all Advances and/or Servicing Advances to (i) a Person, which may be
a special-purpose bankruptcy-remote entity (an "SPV"), (ii) a Person, which may
simultaneously assign or pledge such rights to an SPV or (iii) a lender (a
"Lender"), which, in the case of any Person or SPV of the type described in
either of the preceding clauses (i) or (ii), may directly or through other
assignees and/or pledgees, assign or pledge such rights to a Person, which may
include a trustee acting on behalf of holders of debt instruments (any such
Person or any such Lender, an "Advance Financing Person"), and/or (2) an Advance
Financing Person agrees to fund all the Advances and/or Servicing Advances
required to be made by such Servicer pursuant to this Agreement. No consent of
the Trustee, Certificateholders or any other party shall be required before a
Servicer may enter into an Advance Facility nor shall the Trustee or the
Certificateholders be a third party beneficiary of any obligation of an Advance
Financing Person to such Servicer. Notwithstanding the existence of any Advance
Facility under which an Advance Financing Person agrees to fund Advances and/or
Servicing Advances, (A) the related Servicer (i) shall remain obligated pursuant
to this Agreement to make Advances and/or Servicing Advances pursuant to and as
required by this Agreement and (ii) shall not be relieved of such obligations by
virtue of such Advance Facility and (B) neither the Advance Financing Person nor
any Servicer's Assignee (as hereinafter defined) shall have any right to proceed
against or otherwise contact any Mortgagor for the purpose of collecting any
payment that may be due with respect to any related Mortgage Loan or enforcing
any covenant of such Mortgagor under the related Mortgage Loan documents.
(ii) If a Servicer enters into an Advance Facility, such
Servicer and the related Advance Financing Person shall deliver to the Trustee
at the address set forth in Section 11.05 hereof no later than the Servicer
Remittance Date immediately following the effective date of such Advance
Facility a written notice (an "Advance Facility Notice"), stating (a) the
identity of the Advance Financing Person and (b) the identity of the Person (the
"Servicer's Assignee") that will, subject to Section 5.01(b)(iii) hereof, have
the right to make withdrawals from the related Custodial Account pursuant to
Section 4.02 hereof to reimburse previously unreimbursed Advances and/or
Servicing Advances ("Advance Reimbursement Amounts"). Advance Reimbursement
Amounts (i) shall consist solely of amounts in respect of Advances and/or
Servicing Advances for which the related Servicer would be permitted to
reimburse itself in accordance with Section 4.02 hereof, assuming the related
Servicer had made the related Advance(s) and/or Servicing Advance(s) and (ii)
shall not consist of amounts payable to a successor Servicer in accordance with
Section 4.02 hereof to the extent permitted under Section 5.01(b)(v) below.
(iii) Notwithstanding the existence of an Advance Facility,
the related Servicer, on behalf of the Advance Financing Person and the
Servicer's Assignee, shall be entitled to receive reimbursements of Advances
and/or Servicing Advances in accordance with Section 4.02 hereof, which
entitlement may be terminated by the Advance Financing Person pursuant to a
written notice to the Trustee in the manner set forth in Section 11.05 hereof.
Upon receipt of such written notice, the related Servicer shall no longer be
entitled to receive reimbursement for any Advance Reimbursement Amounts and the
Servicer's Assignee shall
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immediately have the right to receive from the related Custodial Account all
Advance Reimbursement Amounts. Notwithstanding the foregoing, and for the
avoidance of doubt, (i) the related Servicer and/or the Servicer's Assignee
shall only be entitled to reimbursement of Advance Reimbursement Amounts
hereunder from withdrawals from the related Custodial Account pursuant to
Section 4.02 of this Agreement and shall not otherwise be entitled to make
withdrawals or receive amounts that shall be deposited in the Distribution
Account pursuant to Section 4.06 hereof, and (ii) none of the Trustee or the
Certificateholders shall have any right to, or otherwise be entitled to, receive
any Advance Reimbursement Amounts to which the related Servicer or Servicer's
Assignee, as applicable, shall be entitled pursuant to Section 4.02 hereof. An
Advance Facility may be terminated by the joint written direction of the related
Servicer and the related Advance Financing Person. Written notice of such
termination shall be delivered to the Trustee in the manner set forth in Section
11.05 hereof. None of the Depositor or the Trustee shall, as a result of the
existence of any Advance Facility, have any additional duty or liability with
respect to the calculation or payment of any Advance Reimbursement Amount, nor,
as a result of the existence of any Advance Facility, shall the Depositor or the
Trustee have any additional responsibility to track or monitor the
administration of the Advance Facility or the payment of Advance Reimbursement
Amounts to Servicer's Assignee. The related Servicer shall indemnify the
Depositor, the Trustee, any successor Servicer and the Trust Fund for any claim,
loss, liability or damage resulting from any claim by the related Advancing
Financing Person, except to the extent that such claim, loss, liability or
damage resulted from or arose out of negligence, recklessness or willful
misconduct on the part of the Depositor, the Trustee or any successor Servicer,
as the case may be, or failure by the successor Servicer or the Trustee, as the
case may be, to remit funds as required by this Agreement or the commission of
an act or omission to act by the successor Servicer or the Trustee, as the case
may be, and the passage of any applicable cure or grace period, such that an
Event of Default under this Agreement occurs or such entity is subject to
termination for cause under this Agreement. Each Servicer shall maintain and
provide to any successor Servicer and, upon request, the Trustee a detailed
accounting on a loan-by-loan basis as to amounts advanced by, pledged or
assigned to, and reimbursed to any Advancing Financing Person. The successor
Servicer shall be entitled to rely on any such information provided by the
related Servicer, and the successor Servicer shall not be liable for any errors
in such information.
(iv) An Advance Financing Person who receives an assignment or
pledge of rights to receive Advance Reimbursement Amounts and/or whose
obligations are limited to the funding of Advances and/or Servicing Advances
pursuant to an Advance Facility shall not be required to meet the criteria for
qualification as a Servicer.
(v) As between a Servicer and its Advance Financing Person, on
the one hand, and a successor Servicer and its Advance Financing Person, if any,
on the other hand, Advance Reimbursement Amounts on a loan-by-loan basis with
respect to each Mortgage Loan as to which an Advance and/or Servicing Advance
shall have been made and be outstanding shall be allocated on a "first-in, first
out" basis. In the event the Servicer's Assignee shall have received some or all
of an Advance Reimbursement Amount related to Advances and/or Servicing Advances
that were made by a Person other than the related Servicer or its related
Advance Financing Person in error, then such Servicer's Assignee shall be
required to remit any portion of such Advance Reimbursement Amount to each
Person entitled to such portion of such Advance
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Reimbursement Amount. Without limiting the generality of the foregoing, each
Servicer shall remain entitled to be reimbursed by the Advance Financing Person
for all Advances and/or Servicing Advances funded by such Servicer to the extent
the related Advance Reimbursement Amounts have not been assigned or pledged to
such Advance Financing Person or Servicer's Assignee.
(vi) For purposes of any Officer's Certificate of either
Servicer delivered pursuant to Section 5.01(a), any Nonrecoverable Advance
referred to therein may have been made by such Servicer. In making its
determination that any Advance or Servicing Advance theretofore made has become
a Nonrecoverable Advance, the related Servicer shall apply the same criteria in
making such determination regardless of whether such Advance or Servicing
Advance shall have been made by such Servicer.
(vii) Any amendment to this Section 5.01(b) or to any other
provision of this Agreement that may be necessary or appropriate to effect the
terms of an Advance Facility as described generally in this Section 5.01(b),
including amendments to add provisions relating to a successor Servicer, may be
entered into by the Trustee, the Depositor and the related Servicer without the
consent of any Certificateholder, provided such amendment complies with Section
11.01 hereof. All reasonable costs and expenses (including attorneys' fees) of
each party hereto of any such amendment shall be borne solely by the related
Servicer. The parties hereto hereby acknowledge and agree that: (a) the Advances
and/or Servicing Advances financed by and/or pledged to an Advance Financing
Person under any Advance Facility are obligations owed to the related Servicer
payable only from the cash flows and proceeds received under this Agreement for
reimbursement of Advances and/or Servicing Advances only to the extent provided
herein, and the Trustee and the Trust are not, as a result of the existence of
any Advance Facility, obligated or liable to repay any Advances and/or Servicing
Advances financed by the Advance Financing Person; (b) the related Servicer will
be responsible for remitting to the Advance Financing Person the applicable
amounts collected by it as reimbursement for Advances and/or Servicing Advances
funded by the Advance Financing Person, subject to the provisions of this
Agreement; and (c) the Trustee shall not have any responsibility to track or
monitor the administration of the financing arrangement between the related
Servicer and any Advance Financing Person.
Section 5.02 COMPENSATING INTEREST PAYMENTS.
In the event that there is a Prepayment Interest Shortfall arising from
a voluntary Principal Prepayment in part or in full by the Mortgagor with
respect to any Mortgage Loan, the related Servicer shall, to the extent of the
Servicing Fee for such Distribution Date, deposit into the Distribution Account,
as a reduction of and to the extent of, the Servicing Fee for such Distribution
Date, no later than the close of business on the Remittance Date immediately
preceding such Distribution Date, an amount equal to the Prepayment Interest
Shortfall; and in case of such deposit, the related Servicer shall not be
entitled to any recovery or reimbursement from the Depositor, the Trustee, the
Seller, the Trust Fund or the Certificateholders.
Section 5.03 REMIC DISTRIBUTIONS.
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On each Distribution Date the Trustee, shall be deemed to
allocate distributions to the REMIC I Regular Interests and the REMIC II 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 Trustee to the
extent of funds on deposit in the Distribution Account and distributed as
directed in accordance with the Remittance Report for such Distribution Date, in
the following order of priority:
FIRST, to pay interest on the Certificates in the following order
of priority:
1. FIRST, to the extent of the Interest Remittance Amount,
to the holders of the Senior Certificates, the Senior
Interest Distribution Amount for each such Class and for
such Distribution Date, then, SECOND, to the extent of
the remaining Available Distribution Amount, to the
holders of the Senior Certificates, the Senior Interest
Distribution Amount not previously distributed in FIRST
above, to each such Class and for such Distribution Date
on a pro rata basis, based on the entitlement of each
such Class;
2. to the extent of the Interest Remittance Amount
remaining after distribution of the Senior Interest
Distribution Amount, to the holders of the Class M-1
Certificates, the Interest Distribution Amount for such
Class for such Distribution Date;
3. to the extent of the Interest Remittance Amount
remaining after distribution of the Senior Interest
Distribution Amount and the Interest Distribution Amount
to 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; and
4. to the extent of the Interest Remittance Amount
remaining after distribution of the Senior Interest
Distribution Amount, the Interest Distribution Amount to
the Class M-1 Certificates and the Interest Distribution
Amount to 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.
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:
1. The Senior Principal Distribution Amount for such
Distribution Date will be distributed to the Senior
Certificates (other than the Class A-IO 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
SECOND, any remaining Senior Principal Distribution
Amount after the distribution described in clause first
above, sequentially:
o to the Class A-1 Certificates, until the
Certificate Principal Balance thereof has been
reduced to zero;
o to the Class A-2 Certificates, until the
Certificate Principal Balance thereof has been
reduced to zero;
o to the Class A-3 Certificates, until the
Certificate Principal Balance thereof has been
reduced to zero;
o concurrently, to the Class A-4A Certificates and
the Class A-4B Certificates, on a pro rata
basis, based on the Certificate Principal
Balance of each such Class, until the
Certificate Principal Balances thereof have been
reduced to zero;
o to the Class A-5 Certificates, until the
Certificate Principal Balance thereof has been
reduced to zero; and
o to the Class A-6 Certificates, until the
Certificate Principal Balance thereof has been
reduced to zero.
2. To the extent of any Principal Distribution Amount
remaining after distribution of the Senior Principal
Distribution Amount to the holders of the Senior
Certificates (other than the Class A-IO 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.
3. To the extent of any Principal Distribution Amount
remaining after distribution of the Senior Principal
Distribution Amount to the holders of the Senior
Certificates (other than the Class A-IO Certificates) on
such Distribution Date and the distribution of the Class
M-1 Principal Distribution Amount to 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.
4. To the extent of any Principal Distribution Amount
remaining after distribution of the Senior Principal
Distribution Amount to the holders of the Senior
Certificates (other than the Class A-IO Certificates) on
such Distribution Date, the distribution of the Class
M-1 Principal Distribution
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Amount to the Class M-1 Certificates on such
Distribution Date and the distribution of the Class M-2
Principal Distribution Amount to 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.
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:
1. To the holders of the Publicly Offered Certificates
(other than the Class A-IO 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;
2. To the holders of the Class M-1 Certificates, then to
the holders of the Class M-2 Certificates and then to
the holders of the Class M-3 Certificates, the related
Interest Carry Forward Amount on such Distribution Date;
3. To the Net WAC Reserve Fund, in respect of the Senior
Certificates (other than the Class A-IO Certificates),
the Net WAC Rate Carryover Amount for each such Class
for such Distribution Date or any prior Distribution
Dates to the extent unpaid;
4. 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;
5. 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;
6. 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;
7. To the holders of the Class C Certificates, the Class C
Distribution Amount; and
8. To the Holders of the Class R Certificates, in respect
of the Class R-3 Interest, any remaining amounts.
On each Distribution Date, the Trustee, after making the required
distributions of interest and principal to the Certificates as described in
clauses FIRST and SECOND above and after the
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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 (other than the
Class A-IO 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, other than
the Class A-IO Certificates, on a pro rata basis, based on the entitlement of
each such Class, the related Net WAC Rate Carryover Amount 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; and fourth, to the Class M-3 Certificates, the
related Net WAC Rate Carryover Amount for such Distribution Date for such Class.
(b) 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 Trustee in accordance with
the Remittance Report 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.
(c) Subject to Section 10.02 hereof respecting the final
distribution, on each Distribution Date the Trustee shall make distributions to
each Certificateholder of record on the preceding Record Date either by wire
transfer in immediately available funds to the account of such holder at a bank
or other entity having appropriate facilities therefor, if (i) such Holder has
so notified the Trustee at least 5 Business Days prior to the related Record
Date and (ii) such Holder shall hold Regular Certificates with aggregate
principal denominations of not less than $1,000,000 or evidencing a Percentage
Interest aggregating 10% or more with respect to such Class or, if not, by check
mailed by first class mail to such Certificateholder at the address of such
holder appearing in the Certificate Register. Notwithstanding the foregoing, but
subject to Section 10.02 hereof respecting the final distribution, distributions
with respect to Certificates registered in the name of a Depository shall be
made to such Depository in immediately available funds.
(d) On each Distribution Date, the Trustee shall prepare the
Monthly Statement to Certificateholders for the related Distribution Date (the
"Monthly Statement").
Section 5.05 ALLOCATION OF REALIZED LOSSES.
(a) On or prior to each Determination Date, the Trustee shall
determine the amount of any Realized Loss in respect of each Mortgage Loan that
occurred during the immediately preceding calendar month.
(b) The interest portion of Realized Losses shall be allocated
to the Certificates as described in Section 1.02 hereof.
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(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, to Net
Monthly Excess Cashflow; second, to the Class C Certificates, until the
Certificate Principal Balance thereof has been reduced to zero; third, to the
Class M-3 Certificates, until the Certificate Principal Balance thereof has been
reduced to zero; fourth, to the Class M-2 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero; and fifth, 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 all Classes on any Distribution Date shall be so allocated after the
actual distributions to be made on such date as provided above. All references
above to the Certificate Principal Balance of any Class of Certificates shall be
to the Certificate Principal Balance of such Class immediately prior to the
relevant Distribution Date, before reduction thereof by any Realized Losses, in
each case to be allocated to such Class of Certificates, on such Distribution
Date.
Any allocation of 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 a Class C 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 first, to REMIC I
Regular Interest LTI-1 and REMIC I Regular Interest LTI-P, until the
Uncertificated Principal Balances have been reduced to zero and then to REMIC I
Regular Interest LTI-IO-A, REMIC I Regular Interest LTI-IO-B, REMIC I Regular
Interest LTI-IO-C, REMIC I Regular Interest LTI-IO-D and REMIC I Regular
Interest LTI-IO-E, until the Uncertificated Principal Balances have been reduced
to zero.
(e) All Realized Losses on the REMIC I Regular Interests shall
be allocated on each Distribution Date to the following REMIC II Regular
Interests in the specified percentages, as follows: first, to Uncertificated
Accrued Interest payable to the REMIC II Regular Interest LTII-AA and REMIC II
Regular Interest LTII-ZZ up to an aggregate amount equal to the REMIC II
Interest Loss Allocation Amount, 98% and 2%, respectively; second, to the
Uncertificated Principal Balances of the REMIC II Regular Interest LTII-AA and
REMIC II Regular Interest LTII-ZZ up to an aggregate amount equal to the REMIC
II Principal Loss Allocation Amount, 98% and 2%, respectively; third, to the
Uncertificated Principal Balances of REMIC II Regular Interest LTII-AA, 98%, to
REMIC II Regular Interest LTII-M3, 1% and to REMIC II Regular Interest LTII-ZZ,
1%, respectively, until the Uncertificated Principal Balances of REMIC II
Regular Interest LTII-M3 has been reduced to zero; fourth, to the Uncertificated
Principal Balances of REMIC II Regular Interest LTII-AA, REMIC II Regular
Interest LTII-M2 and REMIC II Regular Interest LTII-ZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Principal Balance of REMIC II Regular
Interest LTII-M2 has been reduced to
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zero; and fifth, to the Uncertificated Principal Balances of REMIC II Regular
Interest LTII-AA, REMIC II Regular Interest LTII-M1 and REMIC II Regular
Interest LTII-ZZ, 98%, 1% and 1%, respectively, until the Uncertificated
Principal Balance of REMIC II Regular Interest LTII-M1 has been reduced to zero.
(f) Notwithstanding anything to the contrary contained herein,
if on any Distribution Date the Trustee discovers, based solely on the reports
delivered by the related Servicer under this Agreement that any Subsequent
Recoveries have been collected by the related Servicer with respect to the
Mortgage Loans, the Trustee shall reinstate the amount of the Certificate
Principal Balance of the Outstanding Class of Certificates with the lowest
payment priority which was reduced as a result of the allocation of Realized
Losses on such Distribution Date or any prior Distribution Date. To the extent
that the amount of the Subsequent Recoveries collected by the related Servicer
exceeds the amount of Realized Losses allocated to the Outstanding Class of
Certificates since the Closing Date, the Trustee shall use reasonable efforts
to, to the extent permitted by the Depository, reinstate and reissue any retired
Book-Entry Certificate, beginning with the retired Class of Book-Entry
Certificates having the most senior payment priority, for which Realized Losses
were allocated on any Distribution Date since the Closing Date.
Section 5.06 MONTHLY STATEMENTS TO CERTIFICATEHOLDERS.
(a) Not later than each Distribution Date, the Trustee shall
prepare and make available to each Holder of Certificates via its
website and the Depositor a statement setting forth for the
Certificates:
(i) the amount of the related distribution to Holders of each
Class allocable to principal, separately identifying (A) the aggregate
amount of any Principal Prepayments included therein, (B) the aggregate
of all scheduled payments of principal included therein, (C) the Extra
Principal Distribution Amount (if any) and (D) the amount of Prepayment
Charges distributed to the Class P Certificates;
(ii) the amount of such distribution to Holders of each Class
allocable to interest;
(iii) the Certificate Principal Balance or Certificate
Notional Balance of each Class after giving effect (i) to all
distributions allocable to principal on such Distribution Date and (ii)
the allocation of any Applied Realized Loss Amounts for such
Distribution Date;
(iv) the aggregate of the Stated Principal Balances of all of
the Mortgage Loans for the following Distribution Date;
(v) the amount of the Servicing Fees paid to or retained by
the Servicers for the related Due Period;
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(vi) the Pass-Through Rate for each Class of Certificates with
respect to the current Accrual Period and, if applicable, whether such
Pass-Through Rate was limited by the Net WAC Rate Cap;
(vii) the cumulative amount of Realized Losses to date and, in
addition, if the Certificate Principal Balances of the Mezzanine
Certificates have all been reduced to zero, the cumulative amount of
any Realized Losses that have not been allocated to any Certificates;
(viii) the number and aggregate principal amounts of Mortgage
Loans in (A) Delinquent (exclusive of Mortgage Loans in foreclosure and
bankruptcy) (1) 31 to 60 days, (2) 61 to 90 days and (3) 91 or more
days, (B) in foreclosure and delinquent (1) 31 to 60 days, (2) 61 to 90
days and (3) 91 or more days and (C) in bankruptcy and delinquent (1)
31 to 60 days, (2) 61 to 90 days and (3) 91 or more days, in each case
as of the close of business on the last day of the calendar month
preceding such Distribution Date;
(ix) with respect to any Mortgage Loan that was liquidated
during the preceding calendar month, the loan number and Stated
Principal Balance of, and Realized Loss on, such Mortgage Loan as of
the close of business on the Determination Date preceding such
Distribution Date;
(x) the total number and principal balance of any real estate
owned or REO Properties as of the close of business on the
Determination Date preceding such Distribution Date;
(xi) the three month rolling average of the percent equivalent
of a fraction, the numerator of which is the aggregate stated Principal
Balance of the Mortgage Loans that are 60 days or more delinquent or
are in bankruptcy or foreclosure or are REO Properties, and the
denominator of which is the aggregate Stated Principal Balance of all
of the Mortgage Loans as of the last day of such Distribution Date;
(xii) the Realized Losses during the related Prepayment Period
and the cumulative Realized Losses through the end of the preceding
month; and
(xiii) the Net WAC Rate Carryover Amount for each Class of
Certificates and the amount on deposit in the Net WAC Reserve Fund.
The Trustee may make the foregoing monthly statement (and, at
its option, any additional files containing the same information in an
alternative format) available each month to Certificateholders via the Trustee's
internet website. The Trustee's internet website shall initially be located at
"xxx.xxxxxxxxxxxxx.xxx/xxx". Assistance in using the website can be obtained by
calling the Trustee'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 Trustee may change the way monthly statements are
distributed in order to make such distributions more convenient or more
accessible to the above parties.
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(b) The Trustee's responsibility for making the above
information available to the Certificateholders is limited to the availability,
timeliness and accuracy of the information derived from the Depositor, the
Servicers and the Credit Risk Manager. The Trustee will make available a copy of
each statement provided pursuant to this Section 5.06 to each Rating Agency.
(c) Within a reasonable period of time after the end of each
calendar year, the Trustee shall cause to be furnished upon request to each
Person who at any time during the calendar year was a Certificateholder, a
statement containing the information set forth in clauses (a)(i) and (a)(ii) of
this Section 5.06 aggregated for such calendar year or applicable portion
thereof during which such Person was a Certificateholder. Such obligation of the
Trustee shall be deemed to have been satisfied to the extent that substantially
comparable information shall be provided by the Trustee pursuant to any
requirements of the Code as from time to time in effect.
(d) Upon filing with the Internal Revenue Service, the Trustee
shall furnish to the Holders of the Residual Certificates the applicable Form
1066 and each applicable Form 1066Q and shall respond promptly to written
requests made not more frequently than quarterly by any Holder of a Residual
Certificate with respect to the following matters:
(i) The original projected principal and interest cash flows
on the Closing Date on each Class of regular and residual interests
created hereunder and on the Mortgage Loans, based on the Prepayment
Assumption;
(ii) The projected remaining principal and interest cash flows
as of the end of any calendar quarter with respect to each Class of
regular and residual interests created hereunder and the Mortgage
Loans, based on the Prepayment Assumption;
(iii) The applicable Prepayment Assumption and any interest
rate assumptions used in determining the projected principal and
interest cash flows described above;
(iv) The original issue discount (or, in the case of the
Mortgage Loans, market discount) or premium accrued or amortized
through the end of such calendar quarter with respect to each Class of
regular or residual interests created hereunder and to the Mortgage
Loans, together with each constant yield to maturity used in computing
the same;
(v) The treatment of losses realized with respect to the
Mortgage Loans or the regular interests created hereunder, including
the timing and amount of any cancellation of indebtedness income of a
REMIC with respect to such regular interests or bad debt deductions
claimed with respect to the Mortgage Loans;
(vi) The amount and timing of any non-interest expenses of a
REMIC; and
(vii) Any taxes (including penalties and interest) imposed on
the REMIC, including, without limitation, taxes on "prohibited
transactions," "contributions" or "net income from foreclosure
property" or state or local income or franchise taxes.
The information pursuant to clauses (i), (ii), (iii) and (iv)
above shall be provided by the Depositor pursuant to Section 9.12.
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Section 5.07 REMIC DESIGNATIONS AND REMIC I ALLOCATIONS.
(a) The Trustee shall elect that each of REMIC I, REMIC II and
REMIC III and shall be treated as a REMIC under Section 860D of the Code. Any
inconsistencies or ambiguities in this Agreement or in the administration of
this Agreement shall be resolved in a manner that preserves the validity of such
REMIC elections. The REMIC I Regular Interests shall constitute the assets of
REMIC II. The REMIC II Regular Interests shall constitute the assets of REMIC
III
(b) On each Distribution Date, the Available Distribution
Amount, in the following order of priority and in accordance with the Remittance
Report, 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) first, to the Holders of REMIC I Regular Interest
LTI-IO-A, REMIC I Regular Interest LTI-IO-B, REMIC I Regular Interest LTI-IO-C,
REMIC I Regular Interest LTI-IO-D and REMIC I Regular Interest LTI-IO-E in an
amount equal to (A) the Uncertificated Accrued Interest for such Distribution
Date, plus (B) any amounts in respect thereof remaining unpaid from previous
Distribution Dates and second, to the Holders of REMIC I Regular Interest LTI-1
and REMIC I Regular Interest LTI-P, in an amount equal to (A) the Uncertificated
Accrued Interest for such Distribution Date, plus (B) any amounts in respect
thereof remaining unpaid from previous Distribution Dates;
(ii) to the Holders of the REMIC I Regular Interest LTI-P, on
the Distribution Date in February 2009 or any Distribution Date thereafter until
$100 has been distributed pursuant to this clause;
(iii) on each Distribution Date, the remainder of the
Available Distribution Amount for such Distribution Date after the distributions
made pursuant to clause (i) and clause (ii) above, first, to the Holders of
REMIC I Regular Interest LTI-1 until the Uncertificated Principal Balance of
such REMIC I Regular Interest is reduced to zero, and second, to the Holders of
REMIC I Regular Interest LTI-IO-A, REMIC I Regular Interest LTI-IO-B, REMIC I
Regular Interest LTI-IO-C, REMIC I Regular Interest LTI-IO-D and REMIC I Regular
Interest LTI-IO-E, sequentially, until the Uncertificated Principal Balance of
each such REMIC I Regular Interest is reduced to zero; and
(iv) to the Holders of the Class R Certificates, any amounts
remaining after the distributions pursuant to clauses (i) through (iii) above.
On each Distribution Date, all amounts representing Prepayment
Charges in respect of the Mortgage Loans received during the related Prepayment
Period will be distributed by REMIC I to the Holders of REMIC I Regular Interest
LTI-P. The payment of the foregoing amounts to the Holders of REMIC I Regular
Interest LTI-P shall not reduce the Uncertificated Principal Balance thereof.
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Section 5.08 REMIC II ALLOCATIONS.
(a) On each Distribution Date, the Available Distribution
Amount, in the following order of priority and in accordance with the Remittance
Report, shall be distributed by REMIC II to REMIC III on account of the REMIC II
Regular Interests or withdrawn from the Distribution Account and distributed to
the Holders of the Class R Certificates, as the case may be:
(i) first, to the Holders of REMIC II Regular Interest
LTII-IO, in an amount equal to (A) the Uncertificated Accrued Interest for such
REMIC II Regular Interest for such Distribution Date, plus (B) any amounts in
respect thereof remaining unpaid from previous Distribution Dates and then to
Holders of REMIC II Regular Interest LTII-AA, REMIC Regular Interest LTII-A1,
REMIC II Regular Interest LTII-A2, REMIC II Regular Interest LTII-A3, REMIC II
Regular Interest LTII-A4A, REMIC II Regular Interest LTII-A4B, REMIC II Regular
Interest LTII-A5, REMIC II Regular Interest LTII-A6, REMIC II Regular Interest
LTII-M1, REMIC II Regular Interest LTII-M2, REMIC II Regular Interest LTII-M3,
REMIC II Regular Interest LTII-ZZ and REMIC II Regular Interest LTII-P, pro
rata, in an amount equal to (A) the Uncertificated Accrued Interest for each
such REMIC II 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 II Regular
Interest LTII-ZZ shall be reduced and deferred when the REMIC II
Overcollateralization Amount is less than the REMIC II Required
Overcollateralization Amount, by the lesser of (x) the amount of such difference
and (y) the REMIC II Regular Interest LTII-ZZ Maximum Interest Deferral Amount
and such amount will be payable to the Holders of REMIC Regular Interest
LTII-A1, REMIC II Regular Interest LTII-A2, REMIC II Regular Interest LTII-A3,
REMIC II Regular Interest LTII-A4A, REMIC II Regular Interest LTII-A4B, REMIC II
Regular Interest LTII-A5, REMIC II Regular Interest LTII-A6, REMIC II Regular
Interest LTII-M1, REMIC II Regular Interest LTII-M2 and REMIC II Regular
Interest LTII-M3 in the same proportion as the Overcollateralization Increase
Amount is allocated to the Corresponding Certificates and the Uncertificated
Principal Balance of REMIC II Regular Interest LTII-ZZ shall be increased by
such amount;
(ii) second, to the Holders of REMIC II 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) to the Holders of REMIC II Regular Interest LTII-AA and
REMIC II Regular Interest LTII-P, 98.00% of such remainder (other than amounts
payable under clause (d) below), until the Uncertificated Principal Balance of
such REMIC II Regular Interest is reduced to zero, provided, however, that the
Uncertificated Principal Balance of REMIC II Regular Interest LTII-P shall not
be reduced until the Distribution Date in February 2009 or any Distribution Date
thereafter, at which point such amount shall be distributed to REMIC II Regular
Interest LTII-P, until $100 has been distributed pursuant to this clause;
(b) to the Holders of REMIC Regular Interest LTII-A1, REMIC II
Regular Interest LTII-A2, REMIC II Regular Interest LTII-A3, REMIC II Regular
Interest LTII-A4A, REMIC II Regular Interest LTII-A4B, REMIC II Regular Interest
LTII-A5, REMIC II Regular
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Interest LTII-A6, REMIC II Regular Interest LTII-M1, REMIC II Regular Interest
LTII-M2 and REMIC II Regular Interest LTII-M3, 1.00% of such remainder (other
than amounts payable under clause (d) below), in the same proportion as
principal payments are allocated to the Corresponding Certificates, until the
Uncertificated Principal Balances of such REMIC II Regular Interests are reduced
to zero;
(c) to the Holders of REMIC II Regular Interest LTII-ZZ, 1.00%
of such remainder (other than amounts payable under the proviso below), until
the Uncertificated Principal Balance of such REMIC II Regular Interest is
reduced to zero; then
(d) any remaining amount to the Holders of the Class R
Certificates; and
(iii) third, to REMIC II Regular Interest LTII-P, 100% of the
amount paid in respect of REMIC I Regular Interest LTI-P;
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 II Regular Interest LTII-AA
and REMIC II Regular Interest LTII-P, in that order and (ii) REMIC II Regular
Interest LTII-ZZ, respectively; provided that REMIC II Regular Interest LTII-P
shall not be reduced until the Distribution Date in February 2009, at which
point such amount shall be distributed to REMIC II Regular Interest LTII-P,
until $100 has been distributed pursuant to this clause.
Section 5.09 Class P Certificate Account.
The Trustee shall establish and maintain with itself a separate,
segregated trust account titled "Nomura Asset Acceptance Corporation,
Alternative Loan Trust 2004-AP1 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 February 2009 Distribution Date, the
Trustee 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 5.10 NET WAC RESERVE FUND.
(a) The Trustee shall establish a Net WAC Reserve Fund on
behalf of the holders of the Publicly Offered Certificates (other than the Class
A-IO Certificates). The Net WAC Reserve Fund must be an Eligible Account. The
Net WAC Reserve Fund shall be entitled "Net WAC Reserve Fund, JPMorgan Chase
Bank as Trustee for the benefit of holders of Nomura Asset Acceptance
Corporation, Mortgage Pass-Through Certificates, Series 2004-AP1, Class A-1,
Class X-0, Xxxxx X-0, Class A-4A, Class X-0X, Xxxxx X-0, Class A-6, Class M-1,
Class M-2 and Class M-3". 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 Trustee shall deposit the amounts pursuant to
paragraphs 3, 4, 5 and 6 of clause THIRD of Section 5.04(a) into
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the Net WAC Reserve Fund and the Trustee has been directed by the Class C
Certificateholder to distribute such amounts to the Holders of the Publicly
Offered Certificates (other than the Class A-IO 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 ss.1.860G-2(h) and shall be an asset
of the Trust Fund but not an asset of any REMIC. The Trustee on behalf of the
Trust shall be the nominal owner of the Net WAC Reserve Fund. The Class C
Certificateholders shall be the beneficial owners of the Net WAC Reserve Fund,
subject to the power of the Trustee 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 Trustee with no liability for interest or other
compensation thereof or, at the written direction of the Majority Class C
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
C Certificateholder, not as a distribution in respect of any interest in any
REMIC, on such Distribution Date. All amounts earned on amounts on deposit in
the Net WAC Reserve Fund shall be taxable to the Majority Class C
Certificateholder. Any losses on such investments shall be deposited in the Net
WAC Reserve Fund by the Majority Class C Certificateholder out of its own funds
immediately as realized. In the event that the Majority Class C
Certificateholder shall fail to provide investment instructions to the Trustee,
the amounts on deposit in the Net WAC Reserve Fund shall be held uninvested.
(c) For federal tax return and information reporting, the
amount allocated to the right of the holders of the Publicly Offered
Certificates (other than the Class A-IO Certificates) to receive payments from
the Net WAC Reserve Fund in respect of any Net WAC Rate Carryover Amount may be
obtained from the Trustee upon written request.
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ARTICLE VI
THE CERTIFICATES
Section 6.01 THE CERTIFICATES.
The Certificates shall be substantially in the forms attached
hereto as Exhibits A-1 through A-6. The Certificates shall be issuable in
registered form, in the minimum dollar denominations, integral dollar multiples
in excess thereof (except that one Certificate of each Class may be issued in a
different amount which must be in excess of the applicable minimum dollar
denomination) and aggregate dollar denominations as set forth in the following
table:
MINIMUM INTEGRAL MULTIPLE IN ORIGINAL CERTIFICATE
CLASS DENOMINATION EXCESS OF MINIMUM PRINCIPAL BALANCE PASS-THROUGH RATE
----- ------------ ----------------- ----------------- -----------------
A-1 $25,000 $1,000 $84,621,000 Class A-1 Pass-Through Rate
A-2 $25,000 $1,000 $23,255,000 Class A-2 Pass-Through Rate
A-3 $25,000 $1,000 $43,841,000 Class A-3 Pass-Through Rate
A-4A $25,000 $1,000 $10,000,000 Class A-4A Pass-Through Rate
A-4B $25,000 $1,000 $19,884,000 Class A-4B Pass-Through Rate
A-5 $25,000 $1,000 $20,359,000 Class A-5 Pass-Through Rate
A-6 $25,000 $1,000 $24,000,000 Class A-6 Pass-Through Rate
A-IO $25,000 $1,000 N/A Class A-IO Pass-Through Rate
M-1 $25,000 $1,000 $6,000,000 Class M-1 Pass-Through Rate
M-2 $25,000 $1,000 $4,560,000 Class M-2 Pass-Through Rate
M-3 $25,000 $1,000 $2,280,000 Class M-3 Pass-Through Rate
The Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee by an authorized officer upon the written
order of the Depositor. Certificates bearing the manual or facsimile signatures
of individuals who were, at the time when such signatures were affixed,
authorized to sign on behalf of the Trustee shall bind the Trustee,
notwithstanding that such individuals or any of them have ceased to be so
authorized prior to the authentication and delivery of such Certificates or did
not hold such offices at the date of such authentication and delivery. No
Certificate shall be entitled to any benefit under this Agreement, or be valid
for any purpose, unless there appears on such Certificate the countersignature
of the Trustee by manual signature, and such countersignature upon any
Certificate shall be conclusive evidence, and the only evidence, that such
Certificate has been duly countersigned and delivered hereunder. All
Certificates shall be dated the date of their countersignature. On the Closing
Date, the Trustee shall authenticate the Certificates to be issued at the
written direction of the Depositor, or any affiliate thereof.
The Depositor shall provide, or cause to be provided, to the
Trustee on a continuous basis, an adequate inventory of Certificates to
facilitate transfers.
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Section 6.02 CERTIFICATE REGISTER; REGISTRATION OF TRANSFER AND
EXCHANGE OF CERTIFICATES.
(a) The Trustee shall maintain, or cause to be maintained in
accordance with the provisions of Section 6.09, a Certificate Register for the
Trust Fund in which, subject to the provisions of subsections (b) and (c) below
and to such reasonable regulations as it may prescribe, the Trustee shall
provide for the registration of Certificates and of Transfers and exchanges of
Certificates as herein provided. Upon surrender for registration of Transfer of
any Certificate, the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Certificates of the same
Class and of like aggregate Percentage Interest.
At the option of a Certificateholder, Certificates may be
exchanged for other Certificates of the same Class in authorized denominations
and evidencing the same aggregate Percentage Interest upon surrender of the
Certificates to be exchanged at the office or agency of the Trustee. Whenever
any Certificates are so surrendered for exchange, the Trustee shall execute,
authenticate, and deliver the Certificates that the Certificateholder making the
exchange is entitled to receive. Every Certificate presented or surrendered for
registration of Transfer or exchange shall be accompanied by a written
instrument of Transfer in form satisfactory to the Trustee duly executed by the
holder thereof or his attorney duly authorized in writing.
No service charge to the Certificateholders shall be made for
any registration of Transfer or exchange of Certificates, but payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any Transfer or exchange of Certificates may be required.
All Certificates surrendered for registration of Transfer or
exchange shall be canceled and subsequently destroyed by the Trustee in
accordance with the Trustee's customary procedures.
(b) No Transfer of a Private Certificate shall be made unless
such Transfer is made pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws or is exempt from the
registration requirements under the Securities Act and such state securities
laws. In the event that a Transfer is to be made in reliance upon an exemption
from the Securities Act and such laws, in order to assure compliance with the
Securities Act and such laws, the Certificateholder desiring to effect such
Transfer and such Certificateholder's prospective transferee shall each certify
to the Trustee in writing the facts surrounding the Transfer in substantially
the forms set forth in Exhibit E (the "Transferor Certificate") and (x) deliver
a letter in substantially the form of either Exhibit F (the "Investment Letter")
or Exhibit G (the "Rule 144A Letter") or (y) there shall be delivered to the
Trustee an Opinion of Counsel, at the expense of the transferor, that such
Transfer may be made pursuant to an exemption from the Securities Act, which
Opinion of Counsel shall not be an expense of the Depositor, the Seller, the
Trustee or the Trust Fund. The Depositor shall provide to any Holder of a
Private Certificate and any prospective transferee designated by any such
Holder, information regarding 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
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such Certificate without registration thereof under the Securities Act pursuant
to the registration exemption provided by Rule 144A. The Trustee shall cooperate
with the Depositor in providing the Rule 144A information referenced in the
preceding sentence, including providing to the Depositor such information
regarding the Certificates, the Mortgage Loans and other matters regarding the
Trust Fund as the Depositor shall reasonably request to meet its obligation
under the preceding sentence. Each Holder of a Private Certificate desiring to
effect such Transfer shall, and does hereby agree to, indemnify the Trustee, the
Depositor and the Seller against any liability that may result if the Transfer
is not so exempt or is not made in accordance with such federal and state laws.
No Transfer of an ERISA Restricted Certificate shall be made
unless the Trustee shall have received either (i) a representation from the
transferee of such Certificate acceptable to and in form and substance
satisfactory to the Trustee to the effect that such transferee is not an
employee benefit plan subject to Section 406 of ERISA and/or a plan subject to
Section 4975 of the Code, or a Person acting on behalf of any such plan or using
the assets of any such plan, or (ii) in the case of any such ERISA Restricted
Certificate presented for registration in the name of an employee benefit plan
subject to ERISA, or a plan subject to Section 4975 of the Code (or comparable
provisions of any subsequent enactments), or a trustee of any such plan or any
other person acting on behalf of any such plan, an Opinion of Counsel
satisfactory to the Trustee for the benefit of the Trustee, the Depositor and
the Servicers 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 Trustee, 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 Trustee, 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 Trustee an Opinion of
Counsel meeting the requirements of clause (ii) of the first sentence of this
paragraph. The Trustee shall not be under any liability to any Person for any
registration of transfer of any ERISA Restricted Certificate that is in fact not
permitted by this Section 6.02(b) or for making any payments due on such
Certificate to the Holder thereof or taking any other action with respect to
such Holder under the provisions of this Agreement. The Trustee shall be
entitled, but not obligated, to recover from any Holder of any ERISA Restricted
Certificate that was in fact an employee benefit plan subject to Section 406 of
ERISA or a plan subject to Section 4975 of the Code or a Person acting on behalf
of any such plan at the time it became a Holder or, at such subsequent time as
it became such a plan or Person acting on behalf of such a plan, all payments
made on such ERISA Restricted Certificate at and after either such time. Any
such payments so recovered by the Trustee shall be paid and delivered by the
Trustee to the last preceding Holder of such Certificate that is not such a plan
or Person acting on behalf of a plan.
Each beneficial owner of a Class M-1, Class M-2 or Class M-3
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
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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) Each Person who has or who acquires any Ownership Interest
in a Residual Certificate shall be deemed by the acceptance or acquisition of
such Ownership Interest to have agreed to be bound by the following provisions,
and the rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in
a Residual Certificate shall be a Permitted Transferee and shall
promptly notify the Trustee of any change or impending change in its
status as a Permitted Transferee.
(ii) No Ownership Interest in a Residual Certificate may be
registered on the Closing Date or thereafter transferred, and the
Trustee shall not register the Transfer of any Residual Certificate
unless, in addition to the certificates required to be delivered to the
Trustee under subparagraph (b) above, the Trustee shall have been
furnished with an affidavit (a "Transfer Affidavit") of the initial
owner or the proposed transferee in the form attached hereto as Exhibit
D.
(iii) Each Person holding or acquiring any Ownership Interest
in a Residual Certificate shall agree (A) to obtain a Transfer
Affidavit from any other Person to whom such Person attempts to
Transfer its Ownership Interest in a Residual Certificate, (B) to
obtain a Transfer Affidavit from any Person for whom such Person is
acting as nominee, trustee or agent in connection with any Transfer of
a Residual Certificate and (C) not to Transfer its Ownership Interest
in a Residual Certificate or to cause the Transfer of an Ownership
Interest in a Residual Certificate to any other Person if it has actual
knowledge that such Person is not a Permitted Transferee.
(iv) Any attempted or purported Transfer of any Ownership
Interest in a Residual Certificate in violation of the provisions of
this Section 6.02(c) shall be absolutely null and void and shall vest
no rights in the purported Transferee. If any purported transferee
shall become a Holder of a Residual Certificate in violation of the
provisions of this Section 6.02(c), then the last preceding Permitted
Transferee shall be restored to all rights as Holder thereof
retroactive to the date of registration of Transfer of such Residual
Certificate. The Trustee shall be under no liability to any Person for
any registration of Transfer of a Residual Certificate that is in fact
not permitted by Section 6.02(b) and this Section 6.02(c) or for making
any payments due on such Certificate to the Holder thereof or taking
any other action with respect to such Holder under the provisions of
this Agreement so long as the Transfer was registered after receipt of
the related Transfer Affidavit. The Trustee shall be entitled but not
obligated to recover from any Holder of a Residual Certificate that was
in fact not a Permitted Transferee at the time it became a Holder or,
at such subsequent time as it became other than a Permitted Transferee,
all payments made on such Residual Certificate at and after either such
time.
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Any such payments so recovered by the Trustee shall be paid and
delivered by the Trustee to the last preceding Permitted Transferee of
such Certificate.
The restrictions on Transfers of a Residual Certificate set
forth in this Section 6.02(c) shall cease to apply (and the applicable portions
of the legend on a Residual Certificate may be deleted) with respect to
Transfers occurring after delivery to the Trustee of an Opinion of Counsel,
which Opinion of Counsel shall not be an expense of the Trustee or the Seller to
the effect that the elimination of such restrictions will not cause REMIC I,
REMIC II and/or REMIC III, as applicable, to fail to qualify as a REMIC at any
time that the Certificates are outstanding or result in the imposition of any
tax on the Trust Fund, a Certificateholder or another Person. Each Person
holding or acquiring any ownership Interest in a Residual Certificate hereby
consents to any amendment of this Agreement that, based on an Opinion of Counsel
furnished to the Trustee, is reasonably necessary (a) to ensure that the record
ownership of, or any beneficial interest in, a Residual Certificate is not
transferred, directly or indirectly, to a Person that is not a Permitted
Transferee and (b) to provide for a means to compel the Transfer of a Residual
Certificate that is held by a Person that is not a Permitted Transferee to a
Holder that is a Permitted Transferee.
(d) The preparation and delivery of all certificates and
opinions referred to above in this Section 6.02 shall not be an expense of the
Trust Fund, the Trustee, the Depositor or the Seller.
Section 6.03 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES.
If (a) any mutilated Certificate is surrendered to the
Trustee, or the Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate and of the ownership thereof and
(b) there is delivered to the Trustee such security or indemnity as may be
required by them to save each of them harmless, then, in the absence of notice
to the Trustee that such Certificate has been acquired by a bona fide purchaser,
the Trustee shall execute, authenticate and deliver, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Certificate, a new Certificate
of like Class, tenor and Percentage Interest. In connection with the issuance of
any new Certificate under this Section 6.03, the Trustee may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith. Any replacement Certificate issued
pursuant to this Section 6.03 shall constitute complete and indefeasible
evidence of ownership in the Trust Fund, as if originally issued, whether or not
the lost, stolen or destroyed Certificate shall be found at any time. All
Certificates surrendered to the Trustee under the terms of this Section 6.03
shall be canceled and destroyed by the Trustee in accordance with its standard
procedures without liability on its part.
Section 6.04 PERSONS DEEMED OWNERS.
The Trustee and any agent of the Trustee may treat the person
in whose name any Certificate is registered as the owner of such Certificate for
the purpose of receiving distributions
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as provided in this Agreement and for all other purposes whatsoever, and neither
the Trustee nor any agent of the Trustee shall be affected by any notice to the
contrary.
Section 6.05 ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND ADDRESSES.
If three or more Certificateholders (a) request such
information in writing from the Trustee, (b) state that such Certificateholders
desire to communicate with other Certificateholders with respect to their rights
under this Agreement or under the Certificates, and (c) provide a copy of the
communication that such Certificateholders propose to transmit or if the
Depositor shall request such information in writing from the Trustee, then the
Trustee shall, within ten Business Days after the receipt of such request,
provide the Depositor or such Certificateholders at such recipients' expense the
most recent list of the Certificateholders of the Trust Fund held by the
Trustee, if any. The Depositor and every Certificateholder, by receiving and
holding a Certificate, agree that the Trustee shall not be held accountable by
reason of the disclosure of any such information as to the list of the
Certificateholders hereunder, regardless of the source from which such
information was derived.
Section 6.06 BOOK-ENTRY CERTIFICATES.
The Regular Certificates, upon original issuance, shall be
issued in the form of one or more typewritten Certificates representing the
Book- Entry Certificates, to be delivered to the Depository by or on behalf of
the Depositor. Such Certificates shall initially be registered on the
Certificate Register in the name of the Depository or its nominee, and no
Certificate Owner of such Certificates will receive a definitive certificate
representing such Certificate Owner's interest in such Certificates, except as
provided in Section 6.08. Unless and until definitive, fully registered
Certificates ("Definitive Certificates") have been issued to the Certificate
Owners of such Certificates pursuant to Section 6.08:
(a) the provisions of this Section shall be in full force and
effect;
(b) the Depositor and the Trustee may deal with the Depository
and the Depository Participants for all purposes (including the making of
distributions) as the authorized representative of the respective Certificate
Owners of such Certificates;
(c) registration of the Book-Entry Certificates may not be
transferred by the Trustee except to another Depository;
(d) the rights of the respective Certificate Owners of such
Certificates shall be exercised only through the Depository and the Depository
Participants and shall be limited to those established by law and agreements
between the Owners of such Certificates and the Depository and/or the Depository
Participants. Pursuant to the Depository Agreement, unless and until Definitive
Certificates are issued pursuant to Section 6.08, the Depository will make
book-entry transfers among the Depository Participants and receive and transmit
distributions of principal and interest on the related Certificates to such
Depository Participants;
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(e) the Depository may collect its usual and customary fees,
charges and expenses from its Depository Participants;
(f) the Trustee may rely and shall be fully protected in
relying upon information furnished by the Depository with respect to its
Depository Participants; and
(g) to the extent that the provisions of this Section conflict
with any other provisions of this Agreement, the provisions of this Section
shall control.
For purposes of any provision of this Agreement requiring or
permitting actions with the consent of, or at the direction of,
Certificateholders evidencing a specified percentage of the aggregate unpaid
principal amount of any Class of Certificates, such direction or consent may be
given by Certificate Owners (acting through the Depository and the Depository
Participants) owning Book-Entry Certificates evidencing the requisite percentage
of principal amount of such Class of Certificates.
Section 6.07 NOTICES TO DEPOSITORY.
Whenever any notice or other communication is required to be
given to Certificateholders of a Class with respect to which Book-Entry
Certificates have been issued, unless and until Definitive Certificates shall
have been issued to the related Certificate Owners, the Trustee shall give all
such notices and communications to the Depository.
Section 6.08 DEFINITIVE CERTIFICATES.
If, after Book-Entry Certificates have been issued with
respect to any Certificates, (a) the Depositor or the Depository advises the
Trustee that the Depository is no longer willing or able to discharge properly
its responsibilities under the Depository Agreement with respect to such
Certificates and the Trustee or the Depositor is unable to locate a qualified
successor, (b) the Depositor, at its sole option, advises the Trustee that it
elects to terminate the book-entry system with respect to such Certificates
through the Depository or (c) after the occurrence and continuation of an Event
of Default, Certificate Owners of such Book-Entry Certificates having not less
than 51% of the Voting Rights evidenced by any Class of Book-Entry Certificates
advise the Trustee and the Depository in writing through the Depository
Participants that the continuation of a book-entry system with respect to
Certificates of such Class through the Depository (or its successor) is no
longer in the best interests of the Certificate Owners of such Class, then the
Trustee shall notify all Certificate Owners of such Certificates, through the
Depository, of the occurrence of any such event and of the availability of
Definitive Certificates to applicable Certificate Owners requesting the same.
The Depositor shall provide the Trustee with an adequate inventory of
certificates to facilitate the issuance and transfer of Definitive Certificates.
Upon surrender to the Trustee of any such Certificates by the Depository,
accompanied by registration instructions from the Depository for registration,
the Trustee shall countersign and deliver such Definitive Certificates. Neither
the Depositor nor the Trustee shall be liable for any delay in delivery of such
instructions and each may conclusively rely on, and shall be protected in
relying on, such instructions. Upon the issuance of such Definitive
Certificates, all references herein to obligations imposed upon or to be
performed by the Depository shall be deemed to be imposed upon and performed by
the Trustee, to the extent
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applicable with respect to such Definitive Certificates and the Trustee shall
recognize the Holders of such Definitive Certificates as Certificateholders
hereunder.
Section 6.09 MAINTENANCE OF OFFICE OR AGENCY.
The Trustee will maintain or cause to be maintained at its
expense an office or offices or agency or agencies at 0000 Xxxxx Xxxxxx, 0xx
Xxxxx, Xxxxxx, Xxxxx, 00000, Attention: ITS Transfer Department, Nomura Asset
Acceptance Corporation, 2004-AP1 where Certificates may be surrendered for
registration of transfer or exchange. The Trustee will give prompt written
notice to the Certificateholders of any change in such location of any such
office or agency.
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ARTICLE VII
THE DEPOSITOR AND THE SERVICERS
Section 7.01 LIABILITIES OF THE DEPOSITOR AND THE SERVICERS. Each of
the Depositor and the Servicers 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 SERVICERS.
(a) Each of the Depositor and the Servicers will keep in full
force and effect its rights and franchises as a corporation under the laws of
the state of its incorporation, and will obtain and preserve its qualification
to do business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage Loans
and to perform its duties under this Agreement.
(b) Any Person into which the Depositor or any Servicer may be
merged or consolidated, or any corporation resulting from any merger or
consolidation to which the Depositor or such Servicer shall be a party, or any
Person succeeding to the business of the Depositor or such Servicer shall be the
successor of the Depositor or such 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 DEPOSITOR AND EACH SERVICER.
(a) The Depositor agrees to indemnify the Indemnified Persons
for, and to hold them harmless against, any loss, liability or expense
(including reasonable legal fees and disbursements of counsel) incurred on their
part that may be sustained in connection with, arising out of, or relating to,
any claim or legal action (including any pending or threatened claim or legal
action) relating to this Agreement or the Certificates (i) related to the
Depositor's failure to perform its duties in compliance with this Agreement
(except as any such loss, liability or expense shall be otherwise reimbursable
pursuant to this Agreement) or (ii) incurred by reason of the Depositor's
willful misfeasance, bad faith or gross negligence in the performance of duties
hereunder or by reason of reckless disregard of obligations and duties
hereunder. This indemnity shall survive the resignation and the termination of
this Agreement.
(b) Each Servicer 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 such Servicer's gross negligence in the performance of its
duties under this Agreement or failure to service the related Mortgage Loans in
material compliance with the
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terms of this Agreement and for breach of any representation, warranty or
covenant of such Servicer contained herein. Each Servicer shall immediately
notify the Trustee if a claim is made by a third party with respect to this
Agreement or the related Mortgage Loans, assume (with the consent of the Trustee
and with counsel reasonably satisfactory to the Trustee) the defense of any such
claim and pay all expenses in connection therewith, including counsel fees, and
promptly appeal or pay, discharge and satisfy any judgment or decree which may
be entered against it or any Indemnified Person in respect of such claim but
failure to so notify the related Servicer shall not limit its obligations
hereunder. Each Servicer agrees that it will not enter into any settlement of
any such claim without the consent of the Indemnified Persons unless such
settlement includes an unconditional release of such Indemnified Persons from
all liability that is the subject matter of such claim. The provisions of this
Section 7.03(b) shall survive termination of this Agreement.
Section 7.04 LIMITATIONS ON LIABILITY OF THE DEPOSITOR, THE SERVICERS
AND OTHERS. Subject to the obligation of the Depositor and each Servicer to
indemnify the Indemnified Persons pursuant to Section 7.03:
(a) Neither the Depositor, the Servicers nor any of the
directors, officers, employees or agents of the Depositor and the Servicers
shall be under any liability to the Indemnified Persons, the Trust Fund or the
Certificateholders for taking any action or for refraining from taking any
action in good faith pursuant to this Agreement, or for errors in judgment;
provided, however, that this provision shall not protect the Depositor, the
Servicers or any such Person against any breach of warranties or representations
made herein or any liability which would otherwise be imposed by reason of such
Person's willful misfeasance, bad faith or gross negligence in the performance
of duties or by reason of reckless disregard of obligations and duties
hereunder.
(b) The Depositor, the Servicers and any director, officer,
employee or agent of the Depositor and the Servicers may rely in good faith on
any document of any kind prima facie properly executed and submitted by any
Person respecting any matters arising hereunder.
(c) The Depositor, each Servicer, the Trustee, the Custodian
and any director, officer, employee or agent of the Depositor, each Servicer,
the Trustee or the Custodian shall be indemnified by the Trust Fund and held
harmless thereby against any loss, liability or either expense (including
reasonable legal fees and disbursements of counsel) incurred on their part that
may be sustained in connection with, arising out of, or related to, any claim or
legal action (including any pending or threatened claim or legal action)
relating to this Agreement or the Certificates, other than (i) with respect to a
Servicer, such loss, liability or expense related to such Servicer's failure to
perform its respective duties in compliance with this Agreement (except as any
such loss, liability or expense shall be otherwise reimbursable pursuant to this
Agreement) or, with respect to the Custodian, to the Custodian's failure to
perform its duties hereunder, (ii) with respect to a Servicer, any such loss,
liability or expense incurred by reason of such Servicer's willful misfeasance,
bad faith or gross negligence in the performance of duties hereunder 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 duties hereunder.
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(d) Neither the Depositor nor any Servicer shall be under any
obligation to appear in, prosecute or defend any legal action that is not
incidental to its duties under this Agreement and that in its opinion may
involve it in any expense or liability; provided, however, the Trustee may in
its discretion, undertake any such action which it may deem necessary or
desirable with respect to this Agreement and the rights and duties of the
parties hereto and the interests of the Certificateholders hereunder. In such
event, the legal expenses and costs of such action and any liability resulting
therefrom shall be expenses, costs and liabilities of the Trust Fund, and the
Trustee shall be entitled to be reimbursed therefor out of the Distribution
Account as provided by Section 4.05. Nothing in this Subsection 7.04(d) shall
affect the Trustee's obligation to take such actions as are necessary to ensure
the servicing and administration of the Mortgage Loans pursuant to this
Agreement.
(e) In taking or recommending any course of action pursuant to
this Agreement, unless specifically required to do so pursuant to this
Agreement, the Trustee shall not be required to investigate or make
recommendations concerning potential liabilities which the Trust might incur as
a result of such course of action by reason of the condition of the Mortgaged
Properties.
(f) The Trustee shall not be liable for any acts or omissions
of any Servicer, the Depositor or the Custodian.
Section 7.05 SERVICERS NOT TO RESIGN.
Neither Servicer shall resign from the obligations and duties
hereby imposed on it except upon the determination that its duties hereunder are
no longer permissible under applicable law or the performance of such duties are
no longer possible in order to comply with applicable law and such incapacity or
impossibility cannot be cured by such Servicer. Any determination permitting the
resignation of a Servicer shall be evidenced by an Opinion of Counsel to such
effect delivered to the Trustee which Opinion of Counsel shall be in form and
substance acceptable to the Trustee. No appointment of a successor to such
Servicer shall be effective hereunder unless (a) the Rating Agencies have
confirmed in writing that such appointment will not result in a downgrade,
qualification or withdrawal of the then current ratings assigned to the
Certificates, (b) such successor shall have represented that it is meets the
eligibility criteria set forth in Section 8.02 and (c) such successor has agreed
to assume the obligations of the related Servicer hereunder to the extent of the
related Mortgage Loans to be serviced by such successor. The related Servicer
shall provide a copy of the written confirmation of the Rating Agencies and the
agreement executed by such successor to the Trustee. No such resignation shall
become effective until a Qualified Successor or the Trustee shall have assumed
the related Servicer's responsibilities and obligations hereunder. The related
Servicer shall notify the Trustee and the Rating Agencies of its resignation.
Section 7.06 TERMINATION OF SERVICERS WITHOUT CAUSE.
The Seller may, at its option, terminate the servicing
responsibilities of either Option One or GMAC hereunder with respect to the
related Mortgage Loans without cause. No such termination shall become effective
unless and until a successor to Option One or GMAC, as
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applicable, shall have been appointed to service and administer the related
Mortgage Loans pursuant to the terms and conditions of this Agreement. No
appointment shall be effective unless (i) such successor to Option One or GMAC,
as applicable, meets the eligibility criteria contained in Section 8.02, (ii)
the Trustee shall have consented to such appointment, (iii) the Rating Agencies
have confirmed in writing that such appointment will not result in a downgrade,
qualification or withdrawal of the then current ratings assigned to the
Certificates, (iv) such successor has agreed to assume the obligations of Option
One or GMAC, as applicable, hereunder to the extent of the related Mortgage
Loans and (v) all amounts reimbursable to Option One or GMAC, as applicable,
pursuant to the terms of this Agreement shall have been paid to Option One or
GMAC, as applicable, by the successor appointed pursuant to the terms of this
Section 7.06 or by the Seller. The Seller shall provide a copy of the written
confirmation of the Rating Agencies and the agreement executed by such successor
to the Trustee.
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ARTICLE VIII
DEFAULT; TERMINATION OF SERVICER
Section 8.01 SERVICER DEFAULT.
In case one or more of the following events of default by a
Servicer (each, a "Servicer Default") shall occur and be continuing, that is to
say:
(i) any failure to remit to the Trustee any payment required
to be made under the terms of this Agreement which continues unremedied for a
period of three Business Days; or
(ii) failure duly to observe or perform in any material
respect any other of the covenants or agreements set forth in this Agreement,
the breach of which has a material adverse effect and which continue unremedied
for a period of sixty days after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given to the related
Servicer by the Trustee; or
(iii) a decree or order of a court or agency or supervisory
authority having jurisdiction for the appointment of a conservator or receiver
or liquidator in any insolvency, bankruptcy, readjustment of debt, marshaling of
assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the related Servicer
and such decree or order shall have remained in force undischarged or unstayed
for a period of sixty days; or
(iv) the related Servicer shall consent to the appointment of
a conservator or receiver or liquidator in any insolvency, bankruptcy,
readjustment of debt, marshaling of assets and liabilities or similar
proceedings of or relating to such Servicer or of or relating to all or
substantially all of its property; or
(v) the related Servicer shall admit in writing its inability
to pay its debts generally as they become due, file a petition to take advantage
of any applicable insolvency or reorganization statute, make an assignment for
the benefit of its creditors, or voluntarily suspend payment of its obligations;
or
(vi) the related Servicer attempts to assign its right to
servicing compensation hereunder or such Servicer attempts to sell or otherwise
dispose of all or substantially all of its property or assets or to assign this
Agreement or the servicing responsibilities hereunder or to delegate its duties
hereunder or any portion thereof except as otherwise permitted herein; or
(vii) the related Servicer ceases to be qualified to transact
business in any jurisdiction where it is currently so qualified, but only to the
extent such non-qualification materially and adversely affects such Servicer's
ability to perform its obligations hereunder; or
then, and in each and every such case, so long as a Servicer Default
shall not have been remedied, the Trustee, by notice in writing to the related
Servicer shall with respect to a payment default by the related Servicer
pursuant to Section 8.01(i) and, upon the occurrence and continuance of any
other Servicer Default, may, and, at the written direction of
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Certificateholders evidencing not less than 25% of the Voting Rights shall, in
addition to whatever rights the Trustee on behalf of the Certificateholders may
have under Section 7.03 and at law or equity to damages, including injunctive
relief and specific performance, terminate all the rights and obligations of the
related Servicer under this Agreement and in and to the related Mortgage Loans
and the proceeds thereof without compensating the related Servicer for the same.
On or after the receipt by a Servicer of such written notice, all authority and
power of such Servicer under this Agreement whether with respect to the related
Mortgage Loans or otherwise, shall pass to and be vested in the Trustee. Upon
written request from the Trustee, the related Servicer shall prepare, execute
and deliver, any and all documents and other instruments, place in the Trustee's
possession all Mortgage Files relating to the related Mortgage Loans, and do or
accomplish all other acts or things necessary or appropriate to effect the
purposes of such notice of termination, whether to complete the transfer and
endorsement or assignment of the related Mortgage Loans and related documents,
or otherwise, at such Servicer's sole expense; provided, however, in no event
shall any Servicer be responsible for any expenses incurred as a result of any
termination of the other Servicer. The defaulting Servicer shall cooperate with
the Trustee in effecting the termination of its responsibilities and rights
hereunder 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 its Custodial Account or Escrow Account or thereafter
received with respect to the related Mortgage Loans or any related REO Property
(provided, however, that the defaulting Servicer shall continue to be entitled
to receive all amounts accrued or owing to it under this Agreement on or prior
to the date of such termination, whether in respect of Advances, Servicing
Advances, accrued and unpaid Servicing Fees or otherwise, and shall continue to
be entitled to the benefits of Section 7.04, notwithstanding any such
termination, with respect to events occurring prior to such termination). The
Trustee shall not have knowledge of a Servicer Default unless a Responsible
Officer of the Trustee has actual knowledge or unless written notice of any
Servicer Default is received by the Trustee at its Corporate Trust Office and
such notice references the Certificates, the Trust Fund or this Agreement.
Section 8.02 TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR.
On and after the time a Servicer receives a notice of
termination pursuant to Section 8.01, the Trustee shall automatically become the
successor to such Servicer with respect to the transactions set forth or
provided for herein and after a transition period (not to exceed 90 days), shall
be subject to all the responsibilities, duties and liabilities relating thereto
placed on such Servicer by the terms and provisions hereof and applicable law
including the obligation to make Advances pursuant to Article VI hereof except
as otherwise provided herein; provided, however, that the Trustee's obligation
to make Advances in its capacity as Successor Servicer shall not be subject to
such 90 day transition period and the Trustee in such capacity will make any
Advance required to be made by the predecessor Servicer on the Distribution Date
on which the predecessor Servicer was required to make such Advance. Effective
on the date of such notice of termination, as compensation therefor, the Trustee
shall be entitled to all fees, costs and expenses relating to the Mortgage Loans
that the terminated Servicer would have been entitled to if it had continued to
act hereunder, 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
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constitute a Nonrecoverable Advance, (iii) responsible for expenses of the
terminated Servicer pursuant to Section 2.03 or (iv) obligated to deposit losses
on any Permitted Investment directed by the terminated Servicer. Notwithstanding
the foregoing, the Trustee may, if it shall be unwilling to so act, or shall, if
it is prohibited by applicable law from making Advances pursuant to Article VI
or if it is otherwise unable to so act, appoint, or petition a court of
competent jurisdiction to appoint, any established mortgage loan servicing
institution the appointment of which does not adversely affect the then current
rating of the Certificates by each Rating Agency as the successor to the related
Servicer hereunder in the assumption of all or any part of the responsibilities,
duties or liabilities of the related Servicer hereunder. Any Successor Servicer
shall (i) be an institution that is a Xxxxxx Xxx and Xxxxxxx Mac approved
seller/servicer in good standing, that has a net worth of at least $15,000,000
and (ii) be willing to act as successor servicer of any Mortgage Loans under
this Agreement and shall have executed and delivered to the Depositor and the
Trustee an agreement accepting such delegation and assignment, that contains an
assumption by such Person of the rights, powers, duties, responsibilities,
obligations and liabilities of the terminated Servicer (other than any
liabilities of the terminated Servicer hereof incurred prior to termination of
such Servicer under Section 8.01), with like effect as if originally named as a
party to this Agreement, provided that each Rating Agency shall have
acknowledged in writing that its rating of the Certificates in effect
immediately prior to such assignment and delegation will not be qualified or
reduced as a result of such assignment and delegation. If the Trustee assumes
the duties and responsibilities of a Servicer in accordance with this Section
8.02, the Trustee shall not resign as Servicer until a Successor Servicer has
been appointed and has accepted such appointment. Pending appointment of a
successor to the terminated Servicer hereunder, the Trustee, unless the Trustee
is prohibited by law from so acting, shall, subject to Section 4.04 hereof, act
in such capacity as hereinabove provided. In connection with such appointment
and assumption, the Trustee may make such arrangements for the compensation of
such successor out of payments on Mortgage Loans or otherwise as it and such
successor shall agree; provided that no such compensation shall be in excess of
that permitted the terminated Servicer hereunder. The Trustee and such successor
shall take such action, consistent with this Agreement as shall be necessary to
effectuate any such succession. Neither the Trustee nor any other Successor
Servicer shall be deemed to be in default hereunder by reason of any failure to
make, or any delay in making, any distribution hereunder or any portion thereof
or any failure to perform, or any delay in performing, any duties or
responsibilities hereunder, in either case caused by the failure of the related
Servicer to deliver or provide, or any delay in delivering or providing, any
cash, information, documents or records to it.
The costs and expenses of the Trustee in connection with the
termination of a Servicer, appointment of a Successor Servicer and, if
applicable, any transfer of servicing, including, without limitation, all costs
and expenses associated with the complete transfer of all servicing data and the
completion, correction or manipulation of such servicing data as may be required
by the Trustee to correct any errors or insufficiencies in the servicing data or
otherwise to enable the Trustee or the Successor Servicer to service the related
Mortgage Loans properly and effectively, to the extent not paid by the
terminated Servicer as may be required herein, shall be payable to the Trustee
from the Distribution Account pursuant to Section 4.07. Any successor to the
terminated Servicer as successor servicer under this Agreement shall give notice
to the applicable Mortgagors of such change of servicer and shall, during the
term of its service as
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successor servicer maintain in force the policy or policies that the terminated
Servicer is required to maintain pursuant to Section 3.04.
Section 8.03 NOTIFICATION TO CERTIFICATEHOLDERS.
(a) Upon any termination of or appointment of a successor to a
Servicer, the Trustee shall give prompt written notice thereof to
Certificateholders and to each Rating Agency.
(b) Within 60 days after the occurrence of any Servicer
Default, the Trustee shall transmit by mail to all Certificateholders notice of
each such Servicer Default hereunder known to the Trustee, unless such default
shall have been cured or waived.
Section 8.04 WAIVER OF SERVICER DEFAULTS.
The Trustee may waive only by written notice from
Certificateholders evidencing 66-2/3 of the Voting Rights (unless such default
materially and adversely affects all Certificateholders, in which case the
written direction shall be from all of the Certificateholders) any default by a
Servicer in the performance of its obligations hereunder and its consequences.
Upon any such waiver of a past default, such default shall cease to exist, and
any Servicer Default arising therefrom shall be deemed to have been remedied for
every purpose of this Agreement. No such waiver shall extend to any subsequent
or other default or impair any right consequent thereon except to the extent
expressly so waived in writing.
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ARTICLE IX
CONCERNING THE TRUSTEE AND THE CUSTODIAN
Section 9.01 DUTIES OF TRUSTEE.
(a) The Trustee, prior to the occurrence of a Servicer
Default, and after the curing or waiver of all Servicer Defaults, which may have
occurred undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement as duties of the Trustee. If a Servicer
Default has occurred and has not been cured or waived, the Trustee shall
exercise such of the rights and powers vested in it by this Agreement, and the
same degree of care and skill in their exercise, as a prudent person would
exercise under the circumstances in the conduct of such Person's own affairs.
(b) Upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments which are specifically
required to be furnished to the Trustee pursuant to any provision of this
Agreement, the Trustee shall examine them to determine whether they are in the
form required by this Agreement; provided, however, that the Trustee shall not
be responsible for the accuracy or content of any resolution, certificate,
statement, opinion, report, document, order or other instrument furnished by any
Servicer.
(c) On each Distribution Date, the Trustee shall make monthly
distributions and the final distribution to the Certificateholders from funds in
the Distribution Account as provided in Sections 5.04 and 10.01 based the
applicable Remittance Report.
(d) No provision of this Agreement shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct; provided, however, that:
(i) Prior to the occurrence of a Servicer Default and after
the curing or waiver of all such Servicer Defaults which may have
occurred with respect to the Trustee, the duties and obligations of the
Trustee shall be determined solely by the express provisions of this
Agreement, the Trustee shall not be liable except for the performance
of their respective duties and obligations as are specifically set
forth in this Agreement, no implied covenants or obligations shall be
read into this Agreement against the Trustee and, in the absence of bad
faith on the part of the Trustee, the Trustee may conclusively rely and
shall be fully protected in acting or refraining from acting, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Agreement;
(ii) The Trustee shall not be liable in its individual
capacity for an error of judgment made in good faith by a Responsible
Officer or Responsible Officers of the Trustee unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent
facts;
(iii) The Trustee shall not be liable with respect to any
action taken, suffered or omitted to be taken by it in good faith and
believed by it to be authorized or within the
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rights or powers conferred upon it by this Agreement or in accordance
with the directions of the Holders of Certificates evidencing not less
than 25% of the aggregate Voting Rights of the Certificates, if such
action or non-action relates to the time, method and place of
conducting any proceeding for any remedy available to the Trustee or
exercising any trust or other power conferred upon the Trustee under
this Agreement;
(iv) The Trustee shall not be required to take notice or be
deemed to have notice or knowledge of any default or Servicer Default
unless a Responsible Officer of the Trustee shall have actual knowledge
thereof. In the absence of such notice, the Trustee may conclusively
assume there is no such default or Servicer Default;
(v) The Trustee shall not in any way be liable by reason of
any insufficiency in any Account held by or in the name of Trustee
unless it is determined by a court of competent jurisdiction that the
Trustee's gross negligence or willful misconduct was the primary cause
of such insufficiency (except to the extent that the Trustee is obligor
and has defaulted thereon);
(vi) Anything in this Agreement to the contrary
notwithstanding, in no event shall the Trustee be liable for special,
indirect, punitive or consequential loss or damage of any kind
whatsoever (including but not limited to lost profits), even if the
Trustee has been advised of the likelihood of such loss or damage and
regardless of the form of action and whether or not any such damages
were forseeable or contemplated; and
(vii) None of the Seller, the Depositor or the Trustee shall
be responsible for the acts or omissions of the other, it being
understood that this Agreement shall not be construed to render them
partners, joint venturers or agents of one another.
The Trustee shall not be required to expend or risk its own funds or otherwise
incur liability, financial or otherwise, in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if there is
reasonable ground for believing that the repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it, and
none of the provisions contained in this Agreement shall in any event require
the Trustee to perform, or be responsible for the manner of performance of, any
of the obligations of the terminated Servicer hereunder.
(e) All funds received by the Trustee and required to be
deposited in the Distribution Account pursuant to this Agreement will be
promptly so deposited by the Trustee.
Section 9.02 CERTAIN MATTERS AFFECTING THE TRUSTEE.
(a) Except as otherwise provided in Section 9.01:
(i) The Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting in reliance on any
resolution or certificate of the Seller, the Depositor or any Servicer,
any certificates of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order,
appraisal, bond or other paper
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or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(ii) The Trustee may consult with counsel and any advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection with respect to any action taken or
suffered or omitted by it hereunder in good faith and in accordance
with such advice or Opinion of Counsel:
(iii) The Trustee shall not be under any obligation to
exercise any of the trusts or powers vested in it by this Agreement,
other than its obligation to give notices pursuant to this Agreement,
or to institute, conduct or defend any litigation hereunder or in
relation hereto at the request, order or direction of any of the
Certificateholders pursuant to the provisions of this Agreement, unless
such Certificateholders shall have offered to the Trustee reasonable
security or indemnity satisfactory to it against the costs, expenses
and liabilities which may be incurred therein or thereby. Nothing
contained herein shall, however, relieve the Trustee of the obligation,
upon the occurrence of a Servicer Default of which a Responsible
Officer of the Trustee has actual knowledge (which has not been cured
or waived), to exercise such of the rights and powers vested in it by
this Agreement, and to use the same degree of care and skill in their
exercise, as a prudent person would exercise under the circumstances in
the conduct of his own affairs;
(iv) The Trustee shall not be liable in its individual
capacity for any action taken, suffered or omitted by it in good faith
and believed by it to be authorized or within the discretion or rights
or powers conferred upon it by this Agreement;
(v) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent,
order, approval, bond or other paper or document, unless requested in
writing to do so by Holders of Certificates evidencing not less than
25% of the aggregate Voting Rights of the Certificates and provided
that the payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of
such investigation is, in the opinion of the Trustee reasonably assured
to the Trustee by the security afforded to it by the terms of this
Agreement. The Trustee may require reasonable indemnity against such
expense or liability as a condition to taking any such action. The
reasonable expense of every such examination shall be paid by the
Certificateholders requesting the investigation;
(vi) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or through
Affiliates, nominees, custodians, agents or attorneys. The Trustee
shall not be liable or responsible for the misconduct or negligence of
any of the 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
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not be accountable for other than its negligence or willful misconduct
in the performance of any such act;
(viii) The Trustee shall not be required to give any bond or
surety with respect to the execution of the trust created hereby or the
powers granted hereunder;
(ix) The Trustee shall not have any duty to conduct any
affirmative investigation as to the occurrence of any condition
requiring the repurchase of any Mortgage Loan by any Person pursuant to
this Agreement, or the eligibility of any Mortgage Loan for purposes of
this Agreement; and
(x) The Trustee shall have no duty hereunder with respect to
any complaint, claim, demand, notice or other document it may receive
or which may be alleged to have been delivered or served upon it by the
parties as a consequence of the assignment of any Mortgage Loan
hereunder; provided, however that the Trustee shall promptly remit to
the related Servicer upon receipt any such complaint, claim, demand,
notice or other document (i) which is delivered to the Trustee at is
Corporate Trust Office, (ii) of which a Responsible Officer has actual
knowledge or (iii) which contains information sufficient to permit the
Trustee to make a determination that the real property to which such
document relates is a Mortgaged Property.
Section 9.03 TRUSTEE NOT LIABLE FOR CERTIFICATES OR MORTGAGE LOANS.
The recitals contained herein and in the Certificates (other
than the signature and authentication of the Trustee on the Certificates) shall
be taken as the statements of the Depositor, and the Trustee shall not have any
responsibility for their correctness. The Trustee does not make any
representation as to the validity or sufficiency of the Certificates (other than
the signature and authentication of the Trustee on the Certificates) or of any
Mortgage Loan except as expressly provided in Sections 2.02 and 2.06; provided,
however, that the foregoing shall not relieve the Custodian of the obligation to
review the Mortgage Files pursuant to Sections 2.02 and 2.05 of this Agreement.
The Trustee's signature and authentication (or authentication of its agent) on
the Certificates shall be solely in its capacity as Trustee and shall not
constitute the Certificates an obligation of the Trustee in any other capacity.
The Trustee shall not be accountable for the use or application by the Depositor
of any of the Certificates or of the proceeds of such Certificates, or for the
use or application of any funds paid to the Depositor with respect to the
Mortgage Loans. The Trustee (other than in its capacity as Custodian and on such
capacity, subject to the provisions of Section 2.06) shall not be responsible
for the legality or validity of this Agreement or any document or instrument
relating to this Agreement, the validity of the execution of this Agreement or
of any supplement hereto or instrument of further assurance, or the validity,
priority, perfection or sufficiency of the security for the Certificates issued
hereunder or intended to be issued hereunder. The Trustee shall not at any time
have any responsibility or liability for or with respect to the legality,
validity and enforceability of any Mortgage or any Mortgage Loan, or the
perfection and priority of any Mortgage or the maintenance of any such
perfection and priority, or for or with respect to the sufficiency of the Trust
Fund or its ability to generate the payments to be distributed to
Certificateholders, under this Agreement. The Trustee shall not have any
responsibility for filing
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any financing or continuation statement in any public office at any time or to
otherwise perfect or maintain the perfection of any security interest or lien
granted to it hereunder or to record this Agreement.
Section 9.04 TRUSTEE MAY OWN CERTIFICATES.
The Trustee in its individual capacity or in any capacity
other than as Trustee hereunder may become the owner or pledgee of any
Certificates with the same rights it would have if it were not the Trustee and
may otherwise deal with the parties hereto.
Section 9.05 TRUSTEE'S COMPENSATION AND EXPENSES; INDEMNIFICATION.
(a) As compensation for the performance of its obligations
under this Agreement, the Trustee shall be entitled to all income and gain
realized from any investment of funds in the Distribution Account.
In addition, the Trustee will be entitled to recover from the
Distribution Account pursuant to Section 4.07 all reasonable out-of-pocket
expenses, disbursements and advances and the expenses of the Trustee in
connection with the performance of its duties and obligations hereunder or under
any related documents, any Servicer Default, any breach of this Agreement or any
claim or legal action (including any pending or threatened claim or legal
action) incurred or made by the Trustee in the administration of the trusts
hereunder (including the reasonable compensation, expenses and disbursements of
its counsel) except any such expense, disbursement or advance as may arise from
its negligence or intentional misconduct. If funds in the Distribution Account
are insufficient therefor, the Trustee shall recover such expenses from the
Seller. Such compensation and reimbursement obligation shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust. The rights of the Trustee under this Section 9.05 shall survive the
termination of this Agreement and the resignation or removal of the Trustee.
(b) The Trustee and its directors, officers, agents and
employees shall be indemnified and held harmless by the Trust Fund against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever, including reasonable attorney's fees, that may be imposed on,
incurred by or asserted against it or them in any way directly or indirectly
relating to or arising out of the transactions contemplated by this Agreement or
any other agreement entered into in connection herewith, including, but not
limited to, the Mortgage Loan Purchase Agreement assigned to the Trust pursuant
to this Agreement or any action taken or not taken by it or them hereunder or in
connection herewith except to the extent caused by the Trustee's negligence or
willful misconduct. The indemnification provided for under this Section 9.05
shall survive the termination of this Agreement and the resignation or removal
of the Trustee.
The Trustee and its directors, officers, agents and
employees shall be indemnified and held harmless by the Trust Fund from and
against any and all claims, demands, losses, penalties, liabilities, costs,
damages, injuries and expenses, including, without limitation,
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reasonable attorneys' fees and expenses, suffered or sustained by the Trustee,
either directly or indirectly, relating to or arising out of any environmental
law or regulation of the United States or any state thereof, including, without
limitation, any judgment, award, settlement, reasonable attorneys' fees and
expenses and other costs or expenses incurred in connection with the defense of
any actual or threatened action, proceeding or claim.
Section 9.06 ELIGIBILITY REQUIREMENTS FOR TRUSTEE.
The Trustee and any successor Trustee shall during the entire
duration of this Agreement be a state bank or trust company or a national
banking association organized and doing business under the laws of a state or
the United States of America, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus and undivided profits of at
least $40,000,000 or, in the case of a successor Trustee, $50,000,000, subject
to supervision or examination by federal or state authority and, in the case of
the Trustee, rated "BBB" or higher by Fitch Ratings with respect to their
long-term rating and rated "A-1" or higher by Standard & Poor's and "Baa2" or
higher by Xxxxx'x with respect to any outstanding long-term unsecured
unsubordinated debt, and, in the case of a successor Trustee other than pursuant
to Section 9.10, rated in one of the two highest long-term debt categories of,
or otherwise acceptable to, each of the Rating Agencies. If the Trustee
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section 9.06 the combined capital and surplus of such
corporation shall be deemed to be its total equity capital (combined capital and
surplus) as set forth in its most recent report of condition so published. In
case at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 9.06, the Trustee shall resign immediately in the
manner and with the effect specified in Section 9.08.
Section 9.07 INSURANCE.
The Custodian hereunder, at its own expense, shall at all
times maintain and keep in full force and effect such insurance in amounts, with
standard coverage and subject to deductibles, as are customary for insurance
typically maintained by banks which act as custodians but, in any event not less
than that required by Xxxxxx Mae. Evidence of such insurance shall be furnished
to any Certificateholder upon reasonable written request.
Section 9.08 RESIGNATION AND REMOVAL OF TRUSTEE.
The Trustee may at any time resign and be discharged from the
Trust hereby created by giving written notice thereof to the Depositor and the
Seller, with a copy to the Rating Agencies. Upon receiving such notice of
resignation, the Depositor shall promptly appoint a successor trustee by written
instrument, in triplicate, one copy of which instrument shall be delivered to
the resigning trustee and the successor trustee. If no successor trustee shall
have been so appointed and have accepted appointment within 30 days after the
giving of such notice of resignation or removal, the resigning or removed
Trustee may petition any court of competent jurisdiction for the appointment of
a successor trustee.
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If at any time (i) the Trustee shall cease to be eligible in
accordance with the provisions of Section 10.06 hereof and shall fail to resign
after written request thereto by the Depositor, (ii) the Trustee shall become
incapable of acting, or shall be adjudged as bankrupt or insolvent, or a
receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, or
(iii)(A) a tax is imposed with respect to the Trust Fund by any state in which
the Trustee or the Trust Fund is located, (B) the imposition of such tax would
be avoided by the appointment of a different trustee and (C) the Trustee fails
to indemnify the Trust Fund against such tax, then the Depositor may remove the
Trustee and appoint a successor trustee by written instrument, in multiple
copies, a copy of which instrument shall be delivered to the Trustee and the
successor trustee.
The Holders evidencing at least 51% of the Voting Rights of
each Class of Certificates may at any time remove the Trustee and appoint a
successor trustee by written instrument or instruments, in multiple copies,
signed by such Holders or their attorneys-in-fact duly authorized, one complete
set of which instruments shall be delivered by the successor trustee to the
Trustee so removed and the successor trustee so appointed. Notice of any removal
of the Trustee shall be given to each Rating Agency by the Trustee or successor
trustee.
Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 9.08 shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 10.09 hereof.
Section 9.09 SUCCESSOR TRUSTEE.
Any successor trustee appointed as provided in Section 9.08
hereof shall execute, acknowledge and deliver to the Depositor and to its
predecessor trustee an instrument accepting such appointment hereunder and
thereupon the resignation or removal of the predecessor trustee shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with the like effect as if originally
named as trustee herein.
No successor trustee shall accept appointment as provided in
this Section 9.09 unless at the time of such acceptance such successor trustee
shall be eligible under the provisions of Section 9.07 hereof and its
appointment shall not adversely affect the then current rating of the
Certificates.
Upon acceptance of appointment by a successor trustee as
provided in this Section 9.09, the successor trustee shall mail notice of the
succession of such trustee hereunder to all Holders of Certificates. If the
successor trustee fails to mail such notice within ten days after acceptance of
appointment, the Depositor shall cause such notice to be mailed at the expense
of the Trust Fund.
Section 9.10 MERGER OR CONSOLIDATION OF TRUSTEE.
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Any corporation, state bank or national banking association
into which the Trustee may be merged or converted or with which it may be
consolidated or any corporation, state bank or national banking association
resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation, state bank or national banking association
succeeding to substantially all of the corporate trust business of the Trustee
or shall be the successor of the Trustee hereunder, provided that such
corporation shall be eligible under the provisions of Section 9.06 without the
execution or filing of any paper or further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
Section 9.11 APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.
Notwithstanding any other provisions of this Agreement, at any
time, for the purpose of meeting any legal requirements of any jurisdiction in
which any part of the Trust Fund or property securing any Mortgage Note may at
the time be located, the Trustee shall have the power and shall execute and
deliver all instruments to appoint one or more Persons approved by the Trustee
to act as co-trustee or co-trustees jointly with the Trustee, or separate
trustee or separate trustees, of all or any part of the Trust Fund, and to vest
in such Person or Persons, in such capacity and for the benefit of the
Certificateholders, such title to the Trust Fund or any part thereof, whichever
is applicable, and, subject to the other provisions of this Section 9.11, such
powers, duties, obligations, rights and trusts as the Trustee may consider
necessary or desirable. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
9.06 and no notice to Certificateholders of the appointment of any co-trustee or
separate trustee shall be required under Section 9.09.
Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) All rights, powers, duties and obligations conferred or
imposed upon the Trustee, except for the obligation of the Trustee as
Successor Servicer under this Agreement to advance funds on behalf of
the terminated Servicer, shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Trustee
joining in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed
(whether a Trustee hereunder or as a Successor Servicer hereunder), the
Trustee shall be incompetent or unqualified to perform such act or
acts, in which event such rights, powers, duties and obligations
(including the holding of title to the Trust Fund or any portion
thereof in any such jurisdiction) shall be exercised and performed
singly by such separate trustee or co-trustee, but solely at the
direction of the Trustee;
(ii) No trustee hereunder shall be held personally liable by
reason of any act or omission of any other trustee hereunder; and
(iii) The Trustee may at any time accept the resignation of or
remove any separate trustee or co-trustee.
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Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article IX. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee and a
copy thereof given to the Depositor. The Trust Fund shall pay associated fees
and expenses.
Any separate trustee or co-trustee may, at any time,
constitute the Trustee its agent or attorney-in-fact, with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate trustee
or co- trustee shall die, become incapable of acting, resign or be removed, all
of its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
Section 9.12 TAX MATTERS.
It is intended that the Trust Fund shall constitute, and that
the affairs of the Trust Fund shall be conducted so that each REMIC formed
hereunder qualifies as, a "real estate mortgage investment conduit" as defined
in and in accordance with the REMIC Provisions. In furtherance of such
intention, the Trustee covenants and agrees that it shall act as agent (and the
Trustee is hereby appointed to act as agent) on behalf of the Trust Fund. The
Trustee, as agent on behalf of the Trust Fund, shall do or refrain from doing,
as applicable, the following: (a) the Trustee shall prepare and file, or cause
to be prepared and filed, in a timely manner, U.S. Real Estate Mortgage
Investment Conduit Income Tax Returns (Form 1066 or any successor form adopted
by the Internal Revenue Service) and prepare and file or cause to be prepared
and filed with the Internal Revenue Service and applicable state or local tax
authorities income tax or information returns for each taxable year with respect
to each such REMIC containing such information and at the times and in the
manner as may be required by the Code or state or local tax laws, regulations,
or rules, and furnish or cause to be furnished to Certificateholders the
schedules, statements or information at such times and in such manner as may be
required thereby; (b) the Trustee shall apply for an employer identification
number with the Internal Revenue Service via a Form SS-4 or other comparable
method for each REMIC that is or becomes a taxable entity, and within thirty
days of the Closing Date, furnish or cause to be furnished to the Internal
Revenue Service, on Forms 8811 or as otherwise may be required by the Code, the
name, title, address, and telephone number of the person that the holders of the
Certificates may contact for tax information relating thereto, together with
such additional information as may be required by such Form, and update such
information at the time or times in the manner required by the Code for the
Trust Fund; (c) the Trustee shall make or cause to be made elections, on behalf
of each REMIC formed hereunder to be treated as a REMIC on the federal tax
return of such REMIC for its first taxable year (and, if necessary, under
applicable state law); (d) the Trustee shall prepare and forward, or cause to be
prepared and forwarded, to the Certificateholders and to the Internal Revenue
Service and, if necessary, state tax authorities, all information returns and
reports as and when required to be provided to them in accordance
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with the REMIC Provisions, including without limitation, the calculation of any
original issue discount using the Prepayment Assumption; (e) the Trustee shall
provide information necessary for the computation of tax imposed on the transfer
of a Residual Certificate to a Person that is not a Permitted Transferee, or an
agent (including a broker, nominee or other middleman) of a Person that is not a
Permitted Transferee, or a pass-through entity in which a Person that is not a
Permitted Transferee is the record holder of an interest (the reasonable cost of
computing and furnishing such information may be charged to the Person liable
for such tax); (f) the Trustee shall, to the extent under its control, conduct
the affairs of the Trust Fund at all times that any Certificates are outstanding
so as to maintain the status of each REMIC formed hereunder as a REMIC under the
REMIC Provisions; (g) the Trustee shall not knowingly or intentionally take any
action or omit to take any action that would cause the termination of the REMIC
status of any REMIC formed hereunder; (h) the Trustee shall pay, from the
sources specified in the last paragraph of this Section 9.12, the amount of any
federal, state and local taxes, including prohibited transaction taxes as
described below, imposed on any REMIC formed hereunder prior to the termination
of the Trust Fund when and as the same shall be due and payable (but such
obligation shall not prevent the Trustee or any other appropriate Person from
contesting any such tax in appropriate proceedings and shall not prevent the
Trustee from withholding payment of such tax, if permitted by law, pending the
outcome of such proceedings); (i) the Trustee shall sign or cause to be signed
federal, state or local income tax or information returns or any other document
prepared by the Trustee pursuant to this Section 9.12 requiring a signature
thereon by the Trustee; (j) the Trustee shall maintain records relating to each
REMIC formed hereunder including but not limited to the income, expenses, assets
and liabilities of each such REMIC and adjusted basis of the Trust Fund property
determined at such intervals as may be required by the Code, as may be necessary
to prepare the foregoing returns, schedules, statements or information; (k) the
Trustee shall, for federal income tax purposes, maintain books and records with
respect to the REMICs on a calendar year and on an accrual basis; (l) the
Trustee shall not enter into any arrangement not otherwise provided for in this
Agreement by which the REMICs will receive a fee or other compensation for
services nor permit the REMICs to receive any income from assets other than
"qualified mortgages" as defined in Section 860G(a)(3) of the Code or "permitted
investments" as defined in Section 860G(a)(5) of the Code; and (m) as and when
necessary and appropriate, the Trustee shall represent the Trust Fund in any
administrative or judicial proceedings relating to an examination or audit by
any governmental taxing authority, request an administrative adjustment as to
any taxable year of any REMIC formed hereunder, enter into settlement agreements
with any governmental taxing agency, extend any statute of limitations relating
to any tax item of the Trust Fund, and otherwise act on behalf of each REMIC
formed hereunder in relation to any tax matter involving any such REMIC.
In order to enable the Trustee to perform its duties as set
forth herein, the Depositor shall provide, or cause to be provided, to the
Trustee within 10 days after the Closing Date all information or data that the
Trustee requests in writing and determines to be relevant for tax purposes to
the valuations and offering prices of the Certificates, including, without
limitation, the price, yield, prepayment assumption and projected cash flows of
the Certificates and the Mortgage Loans. Thereafter, the Depositor shall provide
to the Trustee promptly upon written request therefor, any such additional
information or data that the Trustee may, from time to time, request in order to
enable the Trustee to perform its duties as set forth herein. The Depositor
hereby indemnifies the Trustee for any losses, liabilities, damages, claims or
expenses of the Trustee arising from any errors or miscalculations of the
Trustee that result from any
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failure of the Depositor to provide, or to cause to be provided, accurate
information or data to the Trustee on a timely basis.
In the event that any tax is imposed on "prohibited
transactions" of any of REMIC I, REMIC II or REMIC III as defined in Section
860F(a)(2) of the Code, on the "net income from foreclosure property" of the
Trust Fund as defined in Section 860G(c) of the Code, on any contribution to any
of REMIC I, REMIC II or REMIC III 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 I,
REMIC II or REMIC III, and is not paid as otherwise provided for herein, such
tax shall be paid by (i) the Trustee, if any such other tax arises out of or
results from a breach by the Trustee of any of its obligations under this
Section, (ii) any party hereto (other than the Trustee) to the extent any such
other tax arises out of or results from a breach by such other party of any of
its obligations under this Agreement or (iii) in all other cases, or in the
event that any liable party hereto fails to honor its obligations under the
preceding clauses (i) or (ii), any such tax will be paid first with amounts
otherwise to be distributed to the Class R Certificateholders, and second with
amounts otherwise to be distributed to all other Certificateholders in the
following order of priority: first, to the Class M-3 Certificates, second, to
the Class M-2 Certificates, third, to the Class M-1 Certificates, and fourth, to
the the Senior Certificates (pro rata based on the amounts to be distributed).
Notwithstanding anything to the contrary contained herein, to the extent that
such tax is payable by the Holder of any Certificates, the Trustee is hereby
authorized to retain on any Distribution Date, from the Holders of the Class R
Certificates (and, if necessary, second, from the Holders of the other
Certificates in the priority specified in the preceding sentence), funds
otherwise distributable to such Holders in an amount sufficient to pay such tax.
The Trustee shall include in its Remittance Report instructions as to
distributions to such parties taking into account the priorities described in
the second preceding sentence. The Trustee agrees to promptly notify in writing
the party liable for any such tax of the amount thereof and the due date for the
payment thereof.
Section 9.13 CUSTODIAN'S FEES AND EXPENSES.
The Seller covenants and agrees to pay the Custodian from time
to time, and the Custodian shall be entitled to reasonable compensation for all
services rendered by it in the exercise and performance of any of the powers and
duties of the Custodian hereunder, and the Seller will pay or reimburse the
Custodian upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Custodian in accordance with any of the
provisions of this Agreement (including the reasonable compensation and the
expenses and disbursements of its counsel and of all persons not regularly in
its employ), except any such expense, disbursement or advance as may arise from
its negligence or bad faith or to the extent that such cost or expense is
indemnified by the Depositor pursuant to this Agreement.
Section 9.14 INDEMNIFICATION OF CUSTODIAN.
The Custodian and its directors, officers, agents and
employees shall be indemnified and held harmless by the Trust Fund against any
and all liabilities, obligations,
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losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever, including reasonable attorney's
fees, that may be imposed on, incurred by or asserted against it or them in any
way relating to or arising out of this Agreement or any action taken or not
taken by it or them hereunder except to the extent caused by the Custodian's
negligence or willful misconduct. If funds in the Trust Fund are insufficient
therefor, the Custodian shall recover such expenses from the Seller. The
indemnification provided for under this Section 9.14 shall survive the
termination of this Agreement and the resignation or removal of the Custodian.
Section 9.15 RELIANCE OF CUSTODIAN.
(a) The Custodian may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein, upon any
request, instructions, direction, certificate, opinion or other document
furnished to the Custodian, reasonably believed by the Custodian to be genuine
and to have been signed or presented by the proper party or parties and
conforming to the requirements of this Agreement;
(b) The Custodian shall have no duties or responsibilities
except those that are specifically set forth in this Agreement. The Custodian
shall have no responsibility nor duty with respect to any Mortgage File while
such Mortgage File is not in its possession. If the Custodian requests
instructions from the Trustee with respect to any act, action or failure to act
in connection with this Agreement, the Custodian shall be entitled to refrain
from acting unless and until the Custodian shall have received written
instructions from the Trustee with respect to a Mortgage File without incurring
any liability therefor to the Trustee or any other Person;
(c) The Custodian shall not be liable for an error of judgment
made in good faith by a Responsible Officer or Responsible Officers of the
Custodian unless it shall be proved that the Custodian was negligent in
ascertaining the pertinent facts;
(d) Anything in this Agreement to the contrary
notwithstanding, in no event shall the Custodian be liable for special,
indirect, punitive or consequential loss or damage of any kind whatsoever
(including but not limited to lost profits), even if the Custodian has been
advised of the likelihood of such loss or damage and regardless of the form of
action and whether or not any such damages were foreseeable or contemplated;
(e) The Custodian shall not be required to expend or risk its
own funds or otherwise incur financial liability (other than expenses or
liabilities otherwise required to be incurred by the express terms of this
Agreement) in the performance of any of its duties hereunder if it shall have
reasonable grounds for believing that the repayment of such funds or indemnity
satisfactory to it is not reasonably assured to it;
(f) The Custodian may consult with counsel and any advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection with respect to any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
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(g) The Custodian makes no representations and has no
responsibilities as to (i) the validity, legality, enforceability,
recordability, sufficiency, due authorization or genuineness of any of the
documents contained in the Mortgage Files or any of the Mortgage Loans or (ii)
the collectability, insurability, effectiveness or suitability of any such
Mortgage Loan;
(h) Neither the Custodian nor any of this directors, officers,
agents or employees shall be liable for any action taken, suffered or omitted to
be taken by it in good faith and believed by it to be authorized or within the
rights or powers conferred upon it by this Agreement. The obligations of the
Custodian or any of its directors, officers, agents or employees shall be
determined solely by the express provisions of this Agreement. No
representation, warranty, covenant, agreement, obligation or duty of the
Custodian or any of its directors, officers, agents or employees shall be
implied with respect to this Agreement or the Custodian's services hereunder;
(i) The Custodian, its directors, officers and employees shall
be under no duty or obligation to inspect, review or examine the Mortgage Files
to determine that the contents thereof are genuine, enforceable or appropriate
for the represented purpose or that they have been actually recorded or that
they are other than what they purport to be on their face;
(j) Any corporation into which the Custodian may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Custodian shall be a
party, or any corporation succeeding to the business of the Custodian shall be
the successor of the Custodian hereunder without the execution or filing of any
paper with any party hereto or any further act on the part of any of the parties
hereto except where an instrument of transfer or assignment is required by law
to effect such succession, anything to the contrary herein notwithstanding.
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ARTICLE X
TERMINATION
Section 10.01 TERMINATION UPON LIQUIDATION OR REPURCHASE OF ALL
MORTGAGE LOANS.
Subject to Section 10.03, the obligations and responsibilities
of the Depositor, the Seller and the Trustee created hereby with respect to the
Trust Fund shall terminate upon the earlier of (a) the purchase by the Depositor
of all of the Mortgage Loans (and REO Properties) remaining in the Trust Fund at
a price (the "Mortgage Loan Purchase Price") equal to the sum of (i) 100% of the
Stated Principal Balance of each Mortgage Loan (other than in respect of REO
Property), (ii) accrued interest thereon at the applicable Mortgage Rate to, but
not including, the first day of the month of such purchase, (iii) the appraised
value of any REO Property in the Trust Fund (up to the Stated Principal Balance
of the related Mortgage Loan), such appraisal to be conducted by an appraiser
mutually agreed upon by the Depositor and the Trustee and (iv) unreimbursed
out-of pocket costs of the Servicers or the Trustee, including unreimbursed
servicing advances and the principal portion of any unreimbursed Advances, made
on the Mortgage Loans prior to the exercise of such repurchase right and (v) any
unreimbursed costs and expenses of the Trustee payable pursuant to Section 9.05
and (b) the later of (i) the maturity or other liquidation (or any Advance with
respect thereto) of the last Mortgage Loan remaining in the Trust Fund and the
disposition of all REO Property and (ii) the distribution to Certificateholders
of all amounts required to be distributed to them pursuant to this Agreement, as
applicable. In no event shall the trusts created hereby continue beyond the
earlier of (i) the expiration of 21 years from the death of the last survivor of
the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States
to the Court of St. Xxxxx, living on the date hereof and (ii) the Latest
Possible Maturity Date.
The right to repurchase all Mortgage Loans and REO Properties
pursuant to clause (a) in the preceding paragraph shall be exercisable on or
after the Distribution Date in February 2006 if the Stated Principal Balance of
all of the Mortgage Loans in the Trust Fund, at the time of any such repurchase,
is less than ten percent of the aggregate Cut-off Date Principal Balance of all
of the Mortgage Loans.
Section 10.02 FINAL DISTRIBUTION ON THE CERTIFICATES.
If on any Determination Date, (i) the Trustee determines based
on the reports delivered by the Servicers under this Agreement that there are no
Outstanding Mortgage Loans and no other funds or assets in the Trust Fund other
than the funds in the Distribution Account, the Trustee shall to send a final
distribution notice promptly to each Certificateholder or (ii) the Trustee
determines that a Class of Certificates shall be retired after a final
distribution on such Class, the Trustee shall notify the Certificateholders
within five (5) Business Days after such Determination Date that the final
distribution in retirement of such Class of Certificates is scheduled to be made
on the immediately following Distribution Date. Any final distribution
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made pursuant to the immediately preceding sentence will be made only upon
presentation and surrender of the related Certificates at the office of the
Trustee set forth herein. If the Depositor elects to terminate the Trust Fund
pursuant to Section 10.01, at least 20 days prior to the date notice is to be
mailed to the Certificateholders, the Depositor shall notify the Trustee of the
date the Depositor intends to terminate the Trust Fund. The Depositor shall
remit the Mortgage Loan Purchase Price to the Trustee on the Business Day prior
to the Distribution Date for such Optional Termination by the Depositor.
Notice of any termination of the Trust Fund, specifying the
Distribution Date on which Certificateholders may surrender their Certificates
for payment of the final distribution and cancellation, shall be given promptly
by the Trustee by letter to Certificateholders mailed not earlier than the 10th
day and no later than the 15th day of the month immediately preceding the month
of such final distribution. Any such notice shall specify (a) the Distribution
Date upon which final distribution on the Certificates will be made upon
presentation and surrender of Certificates at the office therein designated, (b)
the amount of such final distribution, (c) the location of the office or agency
at which such presentation and surrender must be made and (d) that the Record
Date otherwise applicable to such Distribution Date is not applicable,
distributions being made only upon presentation and surrender of the
Certificates at the office therein specified. The Trustee will give such notice
to each Rating Agency at the time such notice is given to Certificateholders.
In the event such notice is given, the Depositor shall deposit
in the Distribution Account on the Business Day prior to the applicable
Distribution Date in an amount equal to the final distribution in respect of the
Certificates. Upon such final deposit with respect to the Trust Fund and the
receipt by the Trustee of a Request for Release therefor, the Trustee shall
promptly release to the Depositor, as applicable the Mortgage Files for the
Mortgage Loans and any documents necessary to transfer any REO Property.
Upon presentation and surrender of the Certificates, the
Trustee shall cause to be distributed to Certificateholders of each Class the
amounts allocable to such Certificates held in the Distribution Account in the
order and priority set forth in Section 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 months after the date
specified in the above mentioned written notice, the Trustee shall give a second
written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within six months after the second notice all the applicable
Certificates shall not have been surrendered for cancellation, the Trustee may
take appropriate steps, or may appoint an agent to take appropriate steps, to
contact the remaining Certificateholders concerning surrender of their
Certificates, and the cost thereof shall be paid out of the funds and other
assets that remain a part of the Trust Fund. If within two years after the
second notice all Certificates shall not have been surrendered for cancellation,
the Class R Certificateholders shall be entitled to all unclaimed funds and
other assets of the Trust Fund that remain subject hereto and the Trustee shall
release such funds upon written direction.
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Section 10.03 ADDITIONAL TERMINATION REQUIREMENTS.
(a) Upon exercise by the Depositor of its purchase option as
provided in Section 10.01, the Trust Fund shall be terminated in accordance with
the following additional requirements, unless the Trustee has been supplied with
an Opinion of Counsel, at the expense of the Depositor, to the effect that the
failure of the Trust Fund to comply with the requirements of this Section 11.03
will not (i) result in the imposition of taxes on "prohibited transactions" of a
REMIC, or (ii) cause any REMIC to fail to qualify as a REMIC at any time that
any Certificates are outstanding:
(1) The Depositor shall establish a 90-day liquidation period
and notify the Trustee thereof, and the Trustee shall in turn specify the first
day of such period in a statement attached to the tax return for each of REMIC
I, REMIC II and REMIC III pursuant to Treasury Regulation Section 1.860F-1. The
Depositor shall satisfy all the requirements of a qualified liquidation under
Section 860F of the Code and any regulations thereunder, as evidenced by an
Opinion of Counsel obtained at the expense of the Depositor;
(2) During such 90-day liquidation period, and at or prior to
the time of making the final payment on the Certificates, the Depositor shall
sell all of the assets of REMIC I, REMIC II and REMIC III for cash; and
(3) At the time of the making of the final payment on the
Certificates, the Trustee shall distribute or credit, or cause to be distributed
or credited, to the Holders of the Residual Certificates all cash on hand (other
than cash retained to meet claims), and REMIC I shall terminate at that time.
(b) By their acceptance of the Certificates, the Holders
thereof hereby authorize the Depositor to specify the 90-day liquidation period
for REMIC I, REMIC II and REMIC III, which authorization shall be binding upon
all successor Certificateholders.
(c) The Trustee as agent for each REMIC hereby agrees to adopt
and sign such a plan of complete liquidation upon the written request of the
Depositor, and the receipt of the Opinion of Counsel referred to in Section
10.03(a)(1) and to take such other action in connection therewith as may be
reasonably requested by the Depositor.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 AMENDMENT.
This Agreement may be amended from time to time by parties
hereto, without the consent of any of the Certificateholders to cure any
ambiguity, to correct or supplement any provisions herein, to change the manner
in which the Distribution Account maintained by the Trustee or a Custodial
Account is maintained or to make such other provisions with respect to matters
or questions arising under this Agreement as shall not be inconsistent with any
other provisions herein if such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
Certificateholder; provided that any such amendment shall be deemed not to
adversely affect in any material respect the interests of the Certificateholders
and no such Opinion of Counsel shall be required if the Person requesting such
amendment obtains a letter from each Rating Agency stating that such amendment
would not result in the downgrading or withdrawal of the respective ratings then
assigned to the Certificates.
Notwithstanding the foregoing, without the consent of the
Certificateholders, the parties hereto may at any time and from time to time
amend this Agreement to modify, eliminate or add to any of its provisions to
such extent as shall be necessary or appropriate to maintain the qualification
of each of REMIC I, REMIC II and REMIC III as a REMIC under the Code or to avoid
or minimize the risk of the imposition of any tax on any of REMIC I, REMIC II or
REMIC III pursuant to the Code that would be a claim against any of REMIC I,
REMIC II or REMIC III at any time prior to the final redemption of the
Certificates, provided that the Trustee has been provided an Opinion of Counsel,
which opinion shall be an expense of the party requesting such opinion but in
any case shall not be an expense of the Trustee or the Trust Fund, to the effect
that such action is necessary or appropriate to maintain such qualification or
to avoid or minimize the risk of the imposition of such a tax.
This Agreement may also be amended from time to time by the
parties hereto and the Holders of each Class of Certificates affected thereby
evidencing over 50% of the Voting Rights of such Class or Classes for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Agreement or of modifying in any manner the rights of
the Holders of Certificates; provided that no such amendment shall (i) reduce in
any manner the amount of, or delay the timing of, payments required to be
distributed on any Certificate without the consent of the Holder of such
Certificate, (ii) cause any of REMIC I, REMIC II or REMIC III 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
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than an amendment pursuant to clause (ii) of, and in accordance with, the
preceding paragraph) cause the imposition of any tax on REMIC I, REMIC II or
REMIC III or the Certificateholders or cause REMIC I, REMIC II or REMIC III to
cease to qualify as a REMIC at any time that any Certificates are outstanding.
Further, nothing in this Agreement shall require the Trustee to enter into an
amendment without receiving an Opinion of Counsel, satisfactory to the Trustee
that (i) such amendment is permitted and is not prohibited by this Agreement and
(ii) that all requirements for amending this Agreement (including any consent of
the applicable Certificateholders) have been complied with.
Promptly after the execution of any amendment to this
Agreement requiring the consent of Certificateholders, the Trustee shall furnish
written notification of the substance of such amendment to each
Certificateholder and each Rating Agency.
It shall not be necessary for the consent of
Certificateholders under this Section to approve the particular form of any
proposed amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Trustee may prescribe.
Section 11.02 RECORDATION OF AGREEMENT; COUNTERPARTS.
To the extent permitted by applicable law, this Agreement is
subject to recordation in all appropriate public offices for real property
records in all of the counties or other comparable jurisdictions in which any or
all of the Mortgaged Properties are situated, and in any other appropriate
public recording office or elsewhere. The Seller or the Depositor shall effect
such recordation at the Trust's expense upon the request in writing of a
Certificateholder, but only if such direction is accompanied by an Opinion of
Counsel (provided at the expense of the Certificateholder requesting
recordation) to the effect that such recordation would materially and
beneficially affect the interests of the Certificateholders or is required by
law.
For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
Section 11.03 GOVERNING LAW.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HERETO AND THE
CERTIFICATEHOLDERS SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS WITHOUT
REGARD TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF.
Section 11.04 INTENTION OF PARTIES.
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It is the express intent of the parties hereto that the
conveyance of the Mortgage Notes, Mortgages, assignments of Mortgages, title
insurance policies and any modifications, extensions and/or assumption
agreements and private mortgage insurance policies relating to the Mortgage
Loans by the Seller to the Depositor, and by the Depositor to the Trust Fund be,
and be construed as, an absolute sale thereof to the Depositor or the Trust
Fund, as applicable. It is, further, not the intention of the parties that such
conveyance be deemed a pledge thereof by the Seller to the Depositor, or by the
Depositor to the Trust Fund. However, in the event that, notwithstanding the
intent of the parties, such assets are held to be the property of the Seller or
the Depositor, as applicable, or if for any other reason this Agreement is held
or deemed to create a security interest in such assets, then (i) this Agreement
shall be deemed to be a security agreement within the meaning of the Uniform
Commercial Code of the State of New York and (ii) each conveyance provided for
in this Agreement shall be deemed to be an assignment and a grant by the Seller
or the Depositor, as applicable, for the benefit of the Certificateholders, of a
security interest in all of the assets that constitute the Trust Fund, whether
now owned or hereafter acquired.
The Depositor for the benefit of the Certificateholders shall,
to the extent consistent with this Agreement, take such actions as may be
necessary to ensure that, if this Agreement were deemed to create a security
interest in the assets of the Trust Fund, such security interest would be deemed
to be a perfected security interest of first priority under applicable law and
will be maintained as such throughout the term of the Agreement.
Section 11.05 NOTICES.
(a) The Trustee shall use its best efforts to promptly provide
notice to each Rating Agency with respect to each of the following of which it
has actual knowledge:
(i) Any material change or amendment to this Agreement;
(ii) The occurrence of any Servicer of Default that has not
been cured;
(iii) The resignation or termination of any Servicer or the
Trustee and the appointment of any successor; and
(iv) The final payment to Certificateholders.
In addition, the Trustee shall promptly furnish to each Rating
Agency copies of the following:
(i) Each report to Certificateholders described in Section
5.05;
(ii) Each annual statement as to compliance described in
Section 3.16; and
(iii) Each annual independent public accountants' servicing
report described in Section 4.17.
(b) All directions, demands and notices hereunder shall be in
writing and shall be deemed to have been duly given when delivered at or mailed
by registered mail, return receipt
-141-
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
2004-AP1; (ii) in the case of the Seller, Nomura Credit & Capital, Inc., 2 World
Xxxxxxxxx Xxxxxx, Xxxxxxxx X, Xxx Xxxx, Xxx Xxxx 00000, Attention: Nomura Asset
Acceptance Corporation, Alternative Loan Trust, Series 2004-AP1 or such other
address as may be hereafter furnished to the other parties hereto by the Seller
in writing; (iii) in the case of Option One, Option One Mortgage Corporation, 3
Ada, Xxxxxx, Xxxxxxxxxx 00000, Attention: Nomura Asset Acceptance Corporation,
Alternative Loan Trust, Series 2004-AP1; (iv) in the case of GMAC, GMAC Mortgage
Corporation, [Address], Attention: _____________; (v) 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; (vi) in the case of the Rating
Agencies, (x) Standard & Poor's, 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Mortgage Surveillance Group and (y) Xxxxx'x Investors Service,
Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Home Equity
Monitoring. Any notice delivered to the Seller or the Trustee under this
Agreement shall be effective only upon receipt. Any notice required or permitted
to be mailed to a Certificateholder, unless otherwise provided herein, shall be
given by first-class mail, postage prepaid, at the address of such
Certificateholder as shown in the Certificate Register; any notice so mailed
within the time prescribed in this Agreement shall be conclusively presumed to
have been duly given, whether or not the Certificateholder receives such notice.
Section 11.06 SEVERABILITY OF PROVISIONS.
If any one or more of the covenants, agreements, provisions or
terms of this Agreement shall be for any reason whatsoever held invalid, then
such covenants, agreements, provisions or terms shall be deemed severable from
the remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions of
this Agreement or of the Certificates or the rights of the Holders thereof.
Section 11.07 ASSIGNMENT.
Notwithstanding anything to the contrary contained herein,
except as provided pursuant to Section 7.02, this Agreement may not be assigned
by the Seller or the Depositor.
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.
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No Certificateholder shall have any right to vote (except as
provided herein) or in any manner otherwise control the operation and management
of the Trust Fund, or the obligations of the parties hereto, nor shall anything
herein set forth or contained in the terms of the Certificates be construed so
as to constitute the Certificateholders from time to time as partners or members
of an association; nor shall any Certificateholder be under any liability to any
third party by reason of any action taken by the parties to this Agreement
pursuant to any provision hereof.
No Certificateholder shall have any right by virtue or by
availing itself of any provisions of this Agreement to institute any suit,
action or proceeding in equity or at law upon or under or with respect to this
Agreement, unless such Holder previously shall have given to the Trustee, a
written notice of a Servicer Default and of the continuance thereof, as
hereinbefore provided, the Holders of Certificates evidencing not less than 25%
of the Voting Rights evidenced by the Certificates shall also have made written
request to the Trustee to institute such action, suit or proceeding in its own
name as Trustee, hereunder and shall have offered to the Trustee such indemnity
satisfactory to it as it may require against the costs, expenses, and
liabilities to be incurred therein or thereby, and the Trustee or for 60 days
after its receipt of such notice, request and offer of indemnity shall have
neglected or refused to institute any such action, suit or proceeding; it being
understood and intended, and being expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that no
one or more Holders of Certificates shall have any right in any manner whatever
by virtue or by availing itself or themselves of any provisions of this
Agreement to affect, disturb or prejudice the rights of the Holders of any other
of the Certificates, or to obtain or seek to obtain priority over or preference
to any other such Holder or to enforce any right under this Agreement, except in
the manner herein provided and for the common benefit of all Certificateholders.
For the protection and enforcement of the provisions of this Section 11.08, each
and every Certificateholder or the Trustee shall be entitled to such relief as
can be given either at law or in equity.
Section 11.09 CERTIFICATES NONASSESSABLE AND FULLY PAID.
It is the intention of the Depositor that Certificateholders
shall not be personally liable for obligations of the Trust Fund, that the
interests in the Trust Fund represented by the Certificates shall be
nonassessable for any reason whatsoever, and that the Certificates, upon due
authentication thereof by the Trustee pursuant to this Agreement, are and shall
be deemed fully paid.
* * *
IN WITNESS WHEREOF, the Depositor, the Seller, the Servicers
and the Trustee have caused their names to be signed hereto by their respective
officers thereunto duly authorized as of the day and year first above written.
NOMURA ASSET ACCEPTANCE CORPORATION,
as Depositor
By: /s/ Xxx Xxxxxx
-------------------------------
Name: Xxx Xxxxxx
Title: Assistant Secretary
NOMURA CREDIT & CAPITAL, INC.,
as a Seller
By: /s/ N. Xxxxx XxXxxxx
-------------------------------
Name: N. Xxxxx XxXxxxx
Title: Managing Director
OPTION ONE MORTGAGE CORPORATION,
as a Servicer
By:
-------------------------------
Name:
Title:
GMAC MORTGAGE CORPORATION,
as a Servicer
By:
-------------------------------
Name:
Title:
JPMORGAN CHASE BANK
as Trustee
By: /s/ Xxxx X. Xxxxx
-------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
JPMORGAN CHASE BANK
as Custodian
By: /s/ Xxxxxxxxx Xxxxxx
-------------------------------
Name: Xxxxxxxxx Xxxxxx
Title: Assistant Vice President
ACKNOWLEDGED AND AGREED (WITH
RESPECT TO SECTIONS 4.08 AND 4.09):
THE MURRAYHILL COMPANY
By:
--------------------------------
Name:
Title:
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ___ day of February 2004, before me, a notary public
in and for said State, appeared XXX XXXXXX, 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 February 2004, before me, a notary public
in and for said State, appeared N. XXXXX XXXXXXX, personally known to me on the
basis of satisfactory evidence to be an authorized representative of Nomura
Credit & Capital, Inc., that executed the within instrument, and also known to
me to be the person who executed it on behalf of such corporation, and
acknowledged to me that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
__________________________
Notary Public
[Notarial Seal]
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ____ day of February 2004, before me, a notary public
in and for said State, appeared _________________, personally known to me on the
basis of satisfactory evidence to be an authorized representative of Option One
Mortgage Corporation, one of the corporations that executed the within
instrument, and also known to me to be the person who executed it on behalf of
such corporation and acknowledged to me that such corporation executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
_________________________
Notary Public
[Notarial Seal]
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ____ day of February 2004, before me, a notary public
in and for said State, appeared _________________, personally known to me on the
basis of satisfactory evidence to be an authorized representative of GMAC
Mortgage Corporation, one of the corporations that executed the within
instrument, and also known to me to be the person who executed it on behalf of
such corporation and acknowledged to me that such corporation executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
_________________________
Notary Public
[Notarial Seal]
STATE OF )
) ss.:
COUNTY OF )
On this ____ day of February 2004, before me, a notary public
in and for said State, appeared _______________, personally known to me on the
basis of satisfactory evidence to be an authorized representative of JPMorgan
Chase Bank that executed the within instrument, and also known to me to be the
person who executed it on behalf of such corporation, and acknowledged to me
that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
__________________________
Notary Public
[Notarial Seal]
STATE OF COLORADO )
) ss.:
COUNTY OF )
On this ___ day of February 2004, before me, a notary public
in and for said State, appeared ______________, personally known to me on the
basis of satisfactory evidence to be an authorized representative of The
Murrayhill Company, one of the corporations that executed the within instrument,
and also known to me to be the person who executed it on behalf of such
corporation and acknowledged to me that such corporation executed the within
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
__________________________
Notary Public
[Notarial Seal]
EXHIBIT A-1
FORM OF CLASS A-[1][2][3][4A][4B][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 TRUSTEE NAMED HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE DEPOSITOR OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS
MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
Certificate No. __ Pass-Through Rate: [Variable][____%]
Class A-[1][2][3][4A][4B][5][6] Senior
Aggregate Initial Certificate Principal Balance of this
Date of Pooling and Servicing Agreement Certificate as of the Cut-off Date:
and Cut-off Date: February 1, 2004 $
Trustee: JPMorgan Chase Bank
Initial Certificate Principal Balance of this
Certificate as of the Cut-off Date:
First Distribution Date: March 25, 2004 $
Assumed Final Distribution Date:
March 25, 2034 CUSIP:
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2004-AP1
evidencing a fractional undivided interest in the distributions
allocable to the Class A-[1][2][3][4A][4B][5][6] Certificates with
respect to a Trust Fund consisting primarily of a pool of conventional
one- to four-family fixed interest rate mortgage loans sold by NOMURA
ASSET ACCEPTANCE CORPORATION
This Certificate is payable solely from the assets of the
Trust Fund, and does not represent an obligation of or interest in Nomura Asset
Acceptance Corporation ("NAAC") or the Trustee or any of their affiliates or any
other person. Neither this Certificate nor the underlying Mortgage Loans are
guaranteed or insured by any governmental entity or by NAAC or the Trustee or
any of their affiliates or any other person. None of NAAC, the Trustee or any of
their affiliates will have any obligation with respect to any certificate or
other obligation secured by or payable from payments on the Certificates.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced hereby in the beneficial ownership interest of
Certificates of the same Class as this Certificate in a trust (the "Trust Fund")
generally consisting of conventional first lien, fixed rate mortgage loans
secured by one- to four- family residences, units in planned unit developments
and individual condominium units (collectively, the "Mortgage Loans") sold by
NAAC. The Mortgage Loans were sold by Nomura Credit & Capital, Inc. (the
"Seller") to NAAC. The Trust Fund was created pursuant to the Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
"Agreement"), among NAAC, as depositor (the "Depositor"), the Seller, as seller,
Option One Mortgage Corporation, as a servicer, GMAC Mortgage Corporation and
JPMorgan Chase Bank, as trustee (the "Trustee"), a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined
herein, capitalized terms used herein shall have the meaning ascribed to them in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of its acceptance hereof assents and by which such
Holder is bound.
Interest on this Certificate will accrue during [the period
beginning on the 25th day of the month immediately preceding the month in which
the related Distribution Date (as hereinafter defined) occurs (or, with respect
to the First Distribution specified above, the Closing Date) to and including
the 24th day of the month in which the related Distribution Date occurs on the
Certificate Principal Balance hereof at a per annum rate equal to One-Month
LIBOR plus 0.20% per annum.][the month prior to the month in which a
Distribution Date (as hereinafter defined) occurs on the Certificate Principal
Balance hereof at a per annum rate equal to the Pass-Through Rate set forth
above]. The Trustee will distribute on the 25th day of each month, or, if such
25th day is not a Business Day, the immediately following Business Day (each, a
"Distribution Date"), commencing on the First Distribution Date specified above,
to the Person in whose name this Certificate is registered at the close of
business on the [last day (or if such last day is not a Business Day, the
Business Day immediately preceding such last day) of the calendar month
immediately preceding the month in which the Distribution Date occurs]
-2-
[ Business Day immediately preceding such Distribution Date], an amount equal to
the product of the Percentage Interest evidenced by this Certificate and the
amount (of interest and principal, if any) required to be distributed to the
Holders of Certificates of the same Class as this Certificate. The Assumed Final
Distribution Date is the Distribution Date in the month following 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 Trustee
by check mailed to the address of the Person entitled thereto as such name and
address shall appear on the Certificate Register or, if such Person so requests
by notifying the Trustee in writing as specified in the Agreement.
Notwithstanding the above, the final distribution on this Certificate will be
made after due notice by the Trustee of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the office or agency
appointed by the Trustee for that purpose and designated in such notice. The
initial Certificate Principal Balance of this Certificate is set forth above.
The Certificate Principal Balance hereof will be reduced to the extent of
distributions allocable to principal hereon.
This Certificate is one of a duly authorized issue of
Certificates designated as set forth on the face hereof (the "Certificates").
The Certificates, in the aggregate, evidence the entire beneficial ownership
interest in the Trust Fund formed pursuant to the Agreement.
The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the Trust Fund for payment hereunder and that
the Trustee is not liable to the Certificateholders for any amount payable under
this Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement
and reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced hereby, and the rights,
duties and immunities of the Trustee.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor and the rights of the Certificateholders under the
Agreement from time to time by the parties thereto with the consent of the
Holders of the Classes or Classes of Certificates affected thereby evidencing
over 50% of the Voting Rights of such Class or Classes. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
with the Trustee upon surrender of this Certificate for registration of transfer
at the offices or agencies maintained by the Trustee for such purposes, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Trustee duly executed by the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new Certificates
in authorized denominations representing a like aggregate Percentage Interest
will be issued to the designated transferee.
-3-
The Certificates are issuable only as registered Certificates
without coupons in the Classes and denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
this Certificate is exchangeable for one or more new Certificates evidencing the
same Class and in the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made to the Certificateholders for
any such registration of transfer, but the Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. The Depositor, the Trustee and any agent of any of them may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and none of Depositor, the Trustee or any such agent shall be affected
by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby (other than the obligations to make payments to
Certificateholders with respect to the termination of the Agreement) shall
terminate upon the earlier of (i) the later of (A) the maturity or other
liquidation (or Advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund and disposition of all property acquired upon
foreclosure or deed in lieu of foreclosure of any Mortgage Loan and (B) the
remittance of all funds due under the Agreement, or (ii) the optional repurchase
by the party named in the Agreement of all the Mortgage Loans and other assets
of the Trust Fund in accordance with the terms of the Agreement. Such optional
repurchase may be made only on or after the Distribution Date in February 2006
if on such Distribution Date the aggregate Stated Principal Balance of the
Mortgage Loans is less than the percentage of the aggregate Stated Principal
Balance specified in the Agreement of the Mortgage Loans at the Cut-off Date.
The exercise of such right will effect the early retirement of the Certificates.
In no event, however, will the Trust Fund created by the Agreement continue
beyond the expiration of 21 years after the death of certain persons identified
in the Agreement.
Unless this Certificate has been countersigned by an
authorized signatory of the Trustee by manual signature, this Certificate shall
not be entitled to any benefit under the Agreement, or be valid for any purpose.
-4-
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: JPMORGAN CHASE BANK,
not in its individual capacity but solely
as Trustee
By:______________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-[1][2][3][4A][4B][5][6]
Certificates referred to in the within-mentioned Agreement.
JPMORGAN CHASE BANK
Authorized signatory of JPMorgan Chase
Bank, not in its individual capacity but
solely as Trustee
By:______________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto __________________________________ (Please print or
typewrite name and address including postal zip code of assignee) a Percentage
Interest evidenced by the within Asset-Backed Certificate and hereby authorizes
the transfer of registration of such interest to assignee on the Certificate
Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated: ________________________________________
Signature by or on behalf of assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of _________________________ account number _____________, or, if mailed by
check, to ______________________________. Applicable statements should be mailed
to ____________________________________________________________________________.
This information is provided by __________________, the
assignee named above, or ________________________, as its agent.
EXHIBIT A-2
FORM OF CLASS A-IO CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE DEPOSITOR OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS
MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
Certificate No. ___ Pass-Through Rate: 5.000
Class A-IO Senior
Aggregate Initial Certificate Notional Balance of the
Date of Pooling and Servicing Agreement and Class A-IO Certificates as of the Cut-off Date:
Cut-off Date: February 1, 2004 $_______________
Initial Certificate Notional Balance of this
First Distribution Date: Certificate as of the Cut-off Date:
March 25, 2004 $_______________
Trustee: JPMorgan Chase Bank
Final Scheduled Distribution Date:
February 25, 2006 CUSIP: ___________________
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2004-AP1
evidencing a fractional undivided interest in the distributions
allocable to the Class A-IO Certificates with respect to a Trust Fund
consisting primarily of a
pool of conventional one- to four-family fixed interest rate mortgage
loans sold by NOMURA ASSET ACCEPTANCE CORPORATION.
This Certificate is payable solely from the assets of the
Trust Fund, and does not represent an obligation of or interest in Nomura Asset
Acceptance Corporation ("NAAC") or the Trustee or any of their affiliates or any
other person. Neither this Certificate nor the underlying Mortgage Loans are
guaranteed or insured by any governmental entity or by NAAC or the Trustee or
any of their affiliates or any other person. None of NAAC, the Trustee or any of
their affiliates will have any obligation with respect to any certificate or
other obligation secured by or payable from payments on the Certificates.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced hereby in the beneficial ownership interest of
Certificates of the same Class as this Certificate in a trust (the "Trust Fund")
generally consisting of conventional first lien, fixed rate mortgage loans
secured by one- to four- family residences, units in planned unit developments
and individual condominium units (collectively, the "Mortgage Loans") sold by
NAAC. The Mortgage Loans were sold by Nomura Credit & Capital, Inc. (the
"Seller") to NAAC. The Trust Fund was created pursuant to the Pooling and
Servicing Agreement dated as of the Cut-off Date specified above (the
"Agreement"), among NAAC, as depositor (the "Depositor"), the Seller, as seller,
Option One Mortgage Corporation, as a servicer, GMAC Mortgage Corporation, as a
servicer, and JPMorgan Chase Bank, as trustee (the "Trustee"), a summary of
certain of the pertinent provisions of which is set forth hereafter. To the
extent not defined herein, capitalized terms used herein shall have the meaning
ascribed to them in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of its acceptance hereof
assents and by which such Holder is bound.
Interest on this Certificate will accrue during the month
prior to the month in which a Distribution Date (as hereinafter defined) occurs
on the Certificate Notional Balance hereof at a per annum rate equal to the
Pass-Through Rate set forth above. The Trustee will distribute on the 25th day
of each month, or, if such 25th day is not a Business Day, the immediately
following Business Day (each, a "Distribution Date"), commencing on the First
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last day (or if such last day is
not a Business Day, the Business Day immediately preceding such last day) of the
calendar month immediately preceding the month in which the Distribution Date
occurs, an amount equal to the product of the Percentage Interest evidenced by
this Certificate and the amount (of interest, if any) required to be distributed
to the Holders of Certificates of the same Class as this Certificate. The Final
Scheduled Distribution Date is February 25, 2006.
Distributions on this Certificate will be made by the Trustee
by check mailed to the address of the Person entitled thereto as such name and
address shall appear on the Certificate Register or, if such Person so requests
by notifying the Trustee in writing as specified in the Agreement.
Notwithstanding the above, the final distribution on this Certificate will be
made after due notice by the Trustee of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the office or agency
appointed by the Trustee for
-2-
that purpose and designated in such notice. The initial Certificate Notional
Balance of this Certificate is set forth above.
This Certificate is one of a duly authorized issue of
Certificates designated as set forth on the face hereof (the "Certificates").
The Certificates, in the aggregate, evidence the entire beneficial ownership
interest in the Trust Fund formed pursuant to the Agreement.
The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the Trust Fund for payment hereunder and that
the Trustee is not liable to the Certificateholders for any amount payable under
this Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement
and reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced hereby, and the rights,
duties and immunities of the Trustee.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor and the rights of the Certificateholders under the
Agreement from time to time by the parties thereto with the consent of the
Holders of the Class or Classes of Certificates affected thereby evidencing over
50% of the Voting Rights of such Class or Classes. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
with the Trustee upon surrender of this Certificate for registration of transfer
at the offices or agencies maintained by the Trustee for such purposes, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Trustee duly executed by the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new Certificates
in authorized denominations representing a like aggregate Percentage Interest
will be issued to the designated transferee.
The Certificates are issuable only as registered Certificates
without coupons in the Classes and denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
this Certificate is exchangeable for one or more new Certificates evidencing the
same Class and in the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made to the Certificateholders for
any such registration of transfer, but the Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. The Depositor, the Trustee and any agent of any of them may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and none of Depositor, the Trustee or any such agent shall be affected
by notice to the contrary.
-3-
The obligations created by the Agreement and the Trust Fund
created thereby (other than the obligations to make payments to
Certificateholders with respect to the termination of the Agreement) shall
terminate upon the earlier of (i) the later of (A) the maturity or other
liquidation (or Advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund and disposition of all property acquired upon
foreclosure or deed in lieu of foreclosure of any Mortgage Loan and (B) the
remittance of all funds due under the Agreement, or (ii) the optional repurchase
by the party named in the Agreement of all the Mortgage Loans and other assets
of the Trust Fund in accordance with the terms of the Agreement. Such optional
repurchase may be made only on or after the Distribution Date in February 2006
if on such Distribution Date the aggregate Stated Principal Balance of the
Mortgage Loans is less than the percentage of the aggregate Stated Principal
Balance specified in the Agreement of the Mortgage Loans at the Cut-off Date.
The exercise of such right will effect the early retirement of the Certificates.
In no event, however, will the Trust Fund created by the Agreement continue
beyond the expiration of 21 years after the death of certain persons identified
in the Agreement.
Unless this Certificate has been countersigned by an
authorized signatory of the Trustee by manual signature, this Certificate shall
not be entitled to any benefit under the Agreement, or be valid for any purpose.
-4-
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: JPMORGAN CHASE BANK,
not in its individual capacity but solely
as Trustee
By:______________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-IO Certificates referred to in the
within-mentioned Agreement.
JPMORGAN CHASE BANK
Authorized signatory of JPMorgan Chase
Bank, not in its individual capacity but
solely as Trustee
By:______________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto __________________________________ (Please print or
typewrite name and address including postal zip code of assignee) a Percentage
Interest evidenced by the within Asset-Backed Certificate and hereby authorizes
the transfer of registration of such interest to assignee on the Certificate
Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated: ________________________________________
Signature by or on behalf of assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of _________________________ account number _____________, or, if mailed by
check, to ______________________________. Applicable statements should be mailed
to ____________________________________________________________________________.
This information is provided by __________________, the
assignee named above, or ________________________, as its agent.
EXHIBIT A-3
FORM OF CLASS M-[1][2][3] 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] 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 TRUSTEE NAMED HEREIN.
EACH BENEFICIAL OWNER OF A CERTIFICATE OR ANY INTEREST THEREIN
SHALL BE DEEMED TO HAVE REPRESENTED, BY VIRTUE OF ITS ACQUISITION OR HOLDING OF
THAT CERTIFICATE OR INTEREST THEREIN, THAT EITHER (I) IT IS NOT A PLAN OR
INVESTING WITH "PLAN ASSETS", (II) IT HAS ACQUIRED AND IS HOLDING SUCH
CERTIFICATE IN RELIANCE ON PROHIBITED TRANSACTION EXEMPTION 2002-41 AS AMENDED
("EXEMPTION"), AND THAT IT UNDERSTANDS THAT THERE ARE CERTAIN CONDITIONS TO THE
AVAILABILITY OF THE EXEMPTION, INCLUDING THAT THE CERTIFICATE MUST BE RATED, AT
THE TIME OF PURCHASE, NOT LOWER THAN "BBB-" (OR ITS EQUIVALENT) BY S&P, FITCH
RATINGS 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.
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] Subordinate
Aggregate Initial Certificate Principal Balance of this
Date of Pooling and Servicing Agreement Certificate as of the Cut-off Date:
and Cut-off Date: February 1, 2004 $_______________
Trustee: JPMorgan Chase Bank
Initial Certificate Principal Balance of this
First Distribution Date: Certificate as of the Cut-off Date:
March 25, 2004 $________________
Assumed Final Distribution Date:
March 25, 2034 CUSIP:
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2004-AP1
evidencing a fractional undivided interest in the distributions
allocable to the Class M-[1][2][3] Certificates with respect to a Trust
Fund consisting primarily of a pool of conventional one- to four-family
fixed interest rate mortgage loans sold by NOMURA ASSET ACCEPTANCE
CORPORATION.
This Certificate is payable solely from the assets of the
Trust Fund, and does not represent an obligation of or interest in Nomura Asset
Acceptance Corporation ("NAAC") or the Trustee or any of their affiliates or any
other person. Neither this Certificate nor the underlying Mortgage Loans are
guaranteed or insured by any governmental entity or by NAAC or the Trustee or
any of their affiliates or any other person. None of NAAC, the Trustee or any of
their affiliates will have any obligation with respect to any certificate or
other obligation secured by or payable from payments on the Certificates.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced hereby in the beneficial ownership interest of
Certificates of the same Class as this Certificate in a trust (the "Trust Fund")
generally consisting of conventional first lien, fixed rate mortgage loans
secured by one- to four- family residences, units in planned unit developments
and individual condominium units (collectively, the "Mortgage Loans") sold by
NAAC. The Mortgage Loans were sold by Nomura Credit & Capital, Inc. (the
"Seller") to NAAC. The Trust Fund was created pursuant to the Pooling and
Servicing Agreement dated as of the Cut-off Date
-2-
specified above (the "Agreement"), among NAAC, as depositor (the "Depositor"),
the Seller, as seller, Option One Mortgage Corporation, as a servicer, GMAC
Mortgage Corporation, as a servicer, and JPMorgan Chase Bank, as trustee (the
"Trustee"), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, capitalized terms used herein
shall have the meaning ascribed to them in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of its
acceptance hereof assents and by which such Holder is bound.
Interest on this Certificate will accrue during the month
prior to the month in which a Distribution Date (as hereinafter defined) occurs
on the Certificate Principal Balance hereof at a per annum rate equal to the
Pass-Through Rate set forth above. The Trustee will distribute on the 25th day
of each month, or, if such 25th day is not a Business Day, the immediately
following Business Day (each, a "Distribution Date"), commencing on the First
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last day (or if such last day is
not a Business Day, the Business Day immediately preceding such last day) of the
calendar month immediately preceding the month in which the Distribution Date
occurs, an amount equal to the product of the Percentage Interest evidenced by
this Certificate and the amount (of interest and principal, if any) required to
be distributed to the Holders of Certificates of the same Class as this
Certificate. The Assumed Final Distribution Date is the Distribution Date in the
month following 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 Trustee
by check mailed to the address of the Person entitled thereto as such name and
address shall appear on the Certificate Register or, if such Person so requests
by notifying the Trustee in writing as specified in the Agreement.
Notwithstanding the above, the final distribution on this Certificate will be
made after due notice by the Trustee of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the office or agency
appointed by the Trustee for that purpose and designated in such notice. The
initial Certificate Principal Balance of this Certificate is set forth above.
The Certificate Principal Balance hereof will be reduced to the extent of
distributions allocable to principal hereon and any Realized Losses allocable
hereto.
This Certificate is one of a duly authorized issue of
Certificates designated as set forth on the face hereof (the "Certificates").
The Certificates, in the aggregate, evidence the entire beneficial ownership
interest in the Trust Fund formed pursuant to the Agreement.
The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the Trust Fund for payment hereunder and that
the Trustee is not liable to the Certificateholders for any amount payable under
this Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement
and reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced hereby, and the rights,
duties and immunities of the Trustee.
-3-
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor and the rights of the Certificateholders under the
Agreement from time to time by the parties thereto with the consent of the
Holders of the Class or Classes of Certificates affected thereby evidencing over
50% of the Voting Rights of such Class or Classes. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
with the Trustee upon surrender of this Certificate for registration of transfer
at the offices or agencies maintained by the Trustee for such purposes, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Trustee duly executed by the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new Certificates
in authorized denominations representing a like aggregate Percentage Interest
will be issued to the designated transferee.
Each beneficial owner of a Certificate or any interest therein
shall be deemed to have represented, by virtue of its acquisition or holding of
that certificate or interest therein, that either (i) it is not a Plan or
investing with "Plan Assets", (ii) it has acquired and is holding such
certificate in reliance on the Exemption, and that it understands that there are
certain conditions to the availability of the Exemption, including that the
certificate must be rated, at the time of purchase, not lower than "BBB-" (or
its equivalent) by S&P, Fitch Ratings 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.
The Certificates are issuable only as registered Certificates
without coupons in the Classes and denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
this Certificate is exchangeable for one or more new Certificates evidencing the
same Class and in the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made to the Certificateholders for
any such registration of transfer, but the Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. The Depositor, the Trustee and any agent of any of them may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and none of the Depositor, the Trustee or any such agent shall be
affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby (other than the obligations to make payments to
Certificateholders with respect to the termination of the Agreement) shall
terminate upon the earlier of (i) the later of (A) the maturity or other
liquidation (or Advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund and disposition of all property acquired upon
foreclosure or deed in lieu of foreclosure of
-4-
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 on or after the
Distribution Date in February 2006 if on such Distribution Date the aggregate
Stated Principal Balance of the Mortgage Loans is less than the percentage of
the aggregate Stated Principal Balance specified in the Agreement of the
Mortgage Loans at the Cut-off Date. The exercise of such right will effect the
early retirement of the Certificates. In no event, however, will the Trust Fund
created by the Agreement continue beyond the expiration of 21 years after the
death of certain persons identified in the Agreement.
Unless this Certificate has been countersigned by an
authorized signatory of the Trustee by manual signature, this Certificate shall
not be entitled to any benefit under the Agreement, or be valid for any purpose.
-5-
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: JPMORGAN CHASE BANK,
not in its individual capacity but solely
as Trustee
By:______________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class M-[1][2][3] Certificates referred to
in the within-mentioned Agreement.
JPMORGAN CHASE BANK
Authorized signatory of JPMorgan Chase
Bank, not in its individual capacity but
solely as Trustee
By:______________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto __________________________________ (Please print or
typewrite name and address including postal zip code of assignee) a Percentage
Interest evidenced by the within Asset-Backed Certificate and hereby authorizes
the transfer of registration of such interest to assignee on the Certificate
Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated: ________________________________________
Signature by or on behalf of assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of _________________________ account number _____________, or, if mailed by
check, to ______________________________. Applicable statements should be mailed
to ____________________________________________________________________________.
This information is provided by __________________, the
assignee named above, or ________________________, as its agent.
EXHIBIT A-4
FORM OF CLASS C CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
IS A "REGULAR INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE
DECREASED BY THE PRINCIPAL PAYMENTS HEREON AND REALIZED LOSSES ALLOCABLE HERETO.
ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES, THE CERTIFICATE
PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DIFFERENT FROM THE DENOMINATION
SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CERTIFICATE
PRINCIPAL BALANCE BY INQUIRY OF THE TRUSTEE NAMED HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY
STATE SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES
THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED
ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS AND ONLY
(1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO A PERSON
THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN
THE MEANING OF RULE 144A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR A QIB
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE,
THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144
UNDER THE SECURITIES ACT (IF AVAILABLE) OR (3) IN CERTIFICATED FORM TO AN
"INSTITUTIONAL ACCREDITED INVESTOR" WITHIN THE MEANING THEREOF IN RULE
501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE ACT OR ANY ENTITY IN WHICH
ALL OF THE EQUITY OWNERS COME WITHIN SUCH PARAGRAPHS PURCHASING NOT FOR
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, SUBJECT TO (A) THE RECEIPT BY
THE TRUSTEE OF A LETTER SUBSTANTIALLY IN THE FORM PROVIDED IN THE AGREEMENT AND
(B) THE RECEIPT BY THE TRUSTEE OF SUCH OTHER EVIDENCE ACCEPTABLE TO THE TRUSTEE
THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT AND OTHER APPLICABLE LAWS OR
IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE UNITED
STATES AND ANY OTHER APPLICABLE JURISDICTION.
NO TRANSFER OF THIS CERTIFICATE MAY BE MADE TO ANY PERSON,
UNLESS THE TRANSFEREE PROVIDES EITHER A CERTIFICATION PURSUANT TO SECTION
6.02(B) OF THE AGREEMENT OR AN OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE
THAT THE PURCHASE AND HOLDING OF THIS CERTIFICATE IS PERMISSIBLE UNDER
APPLICABLE LAW, WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED
TRANSACTION UNDER SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE AND WILL NOT SUBJECT THE
TRUSTEE, THE DEPOSITOR OR THE SERVICERS TO ANY OBLIGATION OR LIABILITY IN
ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT, ALL IN ACCORDANCE WITH SECTION
6.02(B) OF THE AGREEMENT.
Certificate No. __ Percentage Interest: ____
Class C Variable Pass-Through Rate
Date of Pooling and Servicing Agreement and Cut-off Date: Initial Certificate Principal Balance of this
February 1, 2004 Certificate as of the Cut-off Date:
Trustee: JPMorgan Chase Bank
Initial Certificate Notional Balance of this
Certificate as of the Cut-off Date:
First Distribution Date: March 25, 2004 $
Assumed Final Distribution Date: March 25, 2034 CUSIP:
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2004-AP1
evidencing a fractional undivided interest in the distributions
allocable to the Class C Certificates with respect to a Trust Fund
consisting primarily of a pool of conventional one- to four-family
fixed interest rate mortgage loans sold by NOMURA ASSET ACCEPTANCE
CORPORATION
-2-
This Certificate is payable solely from the assets of the
Trust Fund, and does not represent an obligation of or interest in Nomura Asset
Acceptance Corporation ("NAAC") or the Trustee referred to below or any of their
affiliates or any other person. Neither this Certificate nor the underlying
Mortgage Loans are guaranteed or insured by any governmental entity or by NAAC
or the Trustee or any of their affiliates or any other person. None of NAAC, the
Trustee or any of their affiliates will have any obligation with respect to any
certificate or other obligation secured by or payable from payments on the
Certificates.
This certifies that 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 "Seller") to NAAC. The Trust Fund was
created pursuant to the Pooling and Servicing Agreement dated as of the Cut-off
Date specified above (the "Agreement"), among NAAC, as depositor (the
"Depositor"), the Seller, as seller, Option One Mortgage Corporation, as a
servicer, GMAC Mortgage Corporation, as a servicer, and JPMorgan Chase Bank, as
trustee (the "Trustee"), a summary of certain of the pertinent provisions of
which is set forth hereafter. To the extent not defined herein, capitalized
terms used herein shall have the meaning ascribed to them in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of its acceptance hereof assents and by which such Holder is bound.
Interest on this Certificate will accrue during the month
prior to the month in which a Distribution Date (as hereinafter defined) occurs
on the Certificate Principal Balance hereof at a per annum rate equal to the
Pass-Through Rate as set forth in the Agreement. The Trustee will distribute on
the 25th day of each month, or, if such 25th day is not a Business Day, the
immediately following Business Day (each, a "Distribution Date"), commencing on
the First Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last day (or if such
last day is not a Business Day, the Business Day immediately preceding such last
day) of the calendar month 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 Trustee
by check mailed to the address of the Person entitled thereto as such name and
address shall appear on the Certificate Register or, if such Person so requests
by notifying the Trustee in writing as specified in the Agreement.
Notwithstanding the above, the final distribution on this Certificate will be
made after due notice by the Trustee of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the office or agency
appointed by the Trustee for
-3-
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 Trustee shall require receipt of (i) if such
transfer is purportedly being made in reliance upon Rule 144A under the 1933
Act, written certifications from the Holder of the Certificate desiring to
effect the transfer, and from such Holder's prospective transferee,
substantially in the forms attached to the Agreement as Exhibit E and either F
or G, as applicable, and (ii) in all other cases, an Opinion of Counsel
satisfactory to it that such transfer may be made without such registration or
qualification (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor or the Trustee in their respective capacities as such),
together with copies of the written certification(s) of the Holder of the
Certificate desiring to effect the transfer and/or such Holder's prospective
transferee upon which such Opinion of Counsel is based. Neither the Depositor
nor the Trustee is obligated to register or qualify the Class of Certificates
specified on the face hereof under the 1933 Act or any other securities law or
to take any action not otherwise required under the Agreement to permit the
transfer of such Certificates without registration or qualification. Any Holder
desiring to effect a transfer of this Certificate shall be required to indemnify
the Trustee, the Depositor and the Seller against any liability that may result
if the transfer is not so exempt or is not made in accordance with such federal
and state laws.
No transfer of this Class C Certificate will be made unless
the Trustee has received either (i) an opinion of counsel acceptable to and in
form and substance satisfactory to the Trustee with respect to the
permissibility of such transfer under the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), and Section 4975 of the Internal Revenue Code
(the "Code") and stating, among other things, that the transferee's acquisition
and holding of a Class C Certificate is permissible under applicable law, will
not constitute or result in a non-exempt prohibited transaction under Section
406 of ERISA or Section 4975 of the Code and will not subject the Trustee, the
Depositor or the Servicers to any obligation or liability in addition to those
undertaken in the Agreement, all in accordance with Section 6.02(b) of the
Agreement or (ii) a representation letter, in the form as described by the
Agreement, stating that the transferee is not an employee benefit or other plan
subject to the prohibited transaction provisions of ERISA or Section 4975 of the
Code (a "Plan"), or any other person (including an investment manager, a named
fiduciary or a trustee of any Plan) acting, directly or indirectly, on behalf of
or purchasing any Certificate with "plan assets" of any Plan.
This Certificate is one of a duly authorized issue of
Certificates designated as set forth on the face hereof (the "Certificates").
The Certificates, in the aggregate, evidence the entire beneficial ownership
interest in the Trust Fund formed pursuant to the Agreement.
The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the Trust Fund for payment hereunder and that
the Trustee is not liable to the
-4-
Certificateholders for any amount payable under this Certificate or the
Agreement or, except as expressly provided in the Agreement, subject to any
liability under the Agreement.
This Certificate does not purport to summarize the Agreement
and reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced hereby, and the rights,
duties and immunities of the Trustee.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor and the rights of the Certificateholders under the
Agreement from time to time by the parties thereto with the consent of the
Holders of the Class or Classes of Certificates affected thereby evidencing over
50% of the Voting Rights of such Class or Classes. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
with the Trustee upon surrender of this Certificate for registration of transfer
at the offices or agencies maintained by the Trustee for such purposes, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Trustee duly executed by the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new Certificates
in authorized denominations representing a like aggregate Percentage Interest
will be issued to the designated transferee.
The Certificates are issuable only as registered Certificates
without coupons in the Classes and denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
this Certificate is exchangeable for one or more new Certificates evidencing the
same Class and in the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made to the Certificateholders for
any such registration of transfer, but the Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. The Depositor, the Trustee and any agent of any of them may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and none of the Depositor, the Trustee or any such agent shall be
affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby (other than the obligations to make payments to
Certificateholders with respect to the termination of the Agreement) shall
terminate upon the earlier of (i) the later of (A) the maturity or other
liquidation (or Advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund and disposition of all property acquired upon
foreclosure or deed in lieu of foreclosure of any Mortgage Loan and (B) the
remittance of all funds due under the Agreement, or (ii) the
-5-
optional repurchase by the party named in the Agreement of all the Mortgage
Loans and other assets of the Trust Fund in accordance with the terms of the
Agreement. Such optional repurchase may be made only on or after the
Distribution Date in February 2006 if on such Distribution Date the aggregate
Stated Principal Balance of the Mortgage Loans is less than the percentage of
the aggregate Stated Principal Balance specified in the Agreement of the
Mortgage Loans at the Cut-off Date. The exercise of such right will effect the
early retirement of the Certificates. In no event, however, will the Trust Fund
created by the Agreement continue beyond the expiration of 21 years after the
death of certain persons identified in the Agreement.
Unless this Certificate has been countersigned by an
authorized signatory of the Trustee by manual signature, this Certificate shall
not be entitled to any benefit under the Agreement, or be valid for any purpose.
-6-
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: JPMORGAN CHASE BANK,
not in its individual capacity but solely
as Trustee
By:______________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class C Certificates referred to in the
within-mentioned Agreement.
JPMORGAN CHASE BANK
Authorized signatory of JPMorgan Chase
Bank, not in its individual capacity but
solely as Trustee
By:______________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto __________________________________ (Please print or
typewrite name and address including postal zip code of assignee) a Percentage
Interest evidenced by the within Asset-Backed Certificate and hereby authorizes
the transfer of registration of such interest to assignee on the Certificate
Register of the Trust Fund.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Dated: ________________________________________
Signature by or on behalf of assignor
________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of _________________________ account number _____________, or, if mailed by
check, to ______________________________. Applicable statements should be mailed
to ____________________________________________________________________________.
This information is provided by __________________, the
assignee named above, or ________________________, as its agent.
EXHIBIT A-5
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").
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE
DECREASED BY THE PRINCIPAL PAYMENTS HEREON. ACCORDINGLY, FOLLOWING THE INITIAL
ISSUANCE OF THE CERTIFICATES, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE WILL BE DIFFERENT FROM THE DENOMINATION SHOWN BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CERTIFICATE PRINCIPAL BALANCE BY
INQUIRY OF THE TRUSTEE NAMED HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY
STATE SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES
THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED
ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS AND ONLY
(1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO A PERSON
THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN
THE MEANING OF RULE 144A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR A QIB
PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE,
THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144
UNDER THE SECURITIES ACT (IF AVAILABLE) OR (3) IN CERTIFICATED FORM TO AN
"INSTITUTIONAL ACCREDITED INVESTOR" WITHIN THE MEANING THEREOF IN RULE
501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE ACT OR ANY ENTITY IN WHICH
ALL OF THE EQUITY OWNERS COME WITHIN SUCH PARAGRAPHS PURCHASING NOT FOR
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, SUBJECT TO (A) THE RECEIPT BY
THE TRUSTEE OF A LETTER SUBSTANTIALLY IN THE FORM PROVIDED IN THE AGREEMENT AND
(B) THE RECEIPT BY THE TRUSTEE OF SUCH OTHER EVIDENCE ACCEPTABLE TO THE TRUSTEE
THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT AND OTHER APPLICABLE LAWS OR IN EACH CASE IN ACCORDANCE WITH ALL
APPLICABLE SECURITIES LAWS OF THE UNITED STATES AND ANY OTHER APPLICABLE
JURISDICTION.
NO TRANSFER OF THIS CERTIFICATE MAY BE MADE TO ANY PERSON,
UNLESS THE TRANSFEREE PROVIDES EITHER A CERTIFICATION PURSUANT TO SECTION
6.02(B) OF THE AGREEMENT OR AN OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE
THAT THE PURCHASE AND HOLDING OF THIS CERTIFICATE IS PERMISSIBLE UNDER
APPLICABLE LAW, WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED
TRANSACTION UNDER SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE AND WILL NOT SUBJECT THE
TRUSTEE, THE DEPOSITOR OR THE SERVICERS TO ANY OBLIGATION OR LIABILITY IN
ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT, ALL IN ACCORDANCE WITH SECTION
6.02(B) OF THE AGREEMENT.
-2-
Certificate No. ___
Class P
Date of Pooling and Servicing Agreement and Cut-off Date: Aggregate Initial Certificate Principal Balance of this
February 1, 2004 Certificate as of the Cut-off Date: $100
First Distribution Date: March 25, 2005 Initial Certificate Principal Balance of this
Certificate as of the Cut-off Date: $100
Trustee: JPMorgan Chase Bank CUSIP:
Assumed Final Distribution Date: March 25, 2034
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2004-AP1
evidencing a fractional undivided interest in the distributions
allocable to the Class P Certificates with respect to a Trust Fund
consisting primarily of a pool of conventional one- to four-family
fixed interest rate mortgage loans sold by NOMURA ASSET ACCEPTANCE
CORPORATION
This Certificate is payable solely from the assets of the
Trust Fund, and does not represent an obligation of or interest in Nomura Asset
Acceptance Corporation ("NAAC") or the Trustee referred to below or any of their
affiliates or any other person. Neither this Certificate nor the underlying
Mortgage Loans are guaranteed or insured by any governmental entity or by NAAC
or the Trustee or any of their affiliates or any other person. None of NAAC, the
Trustee or any of their affiliates will have any obligation with respect to any
certificate or other obligation secured by or payable from payments on the
Certificates.
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,
-3-
Inc. (the "Seller") to NAAC. The Trust Fund was created pursuant to the Pooling
and Servicing Agreement dated as of the Cut-off Date specified above (the
"Agreement"), among NAAC, as depositor (the "Depositor"), the Seller, as seller,
Option One Mortgage Corporation, as a servicer, GMAC Mortgage Corporation, as a
servicer, and JPMorgan Chase Bank, as trustee (the "Trustee"), a summary of
certain of the pertinent provisions of which is set forth hereafter. To the
extent not defined herein, capitalized terms used herein shall have the meaning
ascribed to them in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of its acceptance hereof
assents and by which such Holder is bound.
Distributions on this Certificate will be made by the Trustee
by check mailed to the address of the Person entitled thereto as such name and
address shall appear on the Certificate Register or, if such Person so requests
by notifying the Trustee in writing as specified in the Agreement.
Notwithstanding the above, the final distribution on this Certificate will be
made after due notice by the Trustee of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the office or agency
appointed by the Trustee for that purpose and designated in such notice.
No transfer of this Certificate shall be made unless the
transfer is made pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "1933 Act"), and an effective
registration or qualification under applicable state securities laws, or is made
in a transaction that does not require such registration or qualification. In
the event that such a transfer of this Certificate is to be made without
registration or qualification, the Trustee shall require receipt of (i) if such
transfer is purportedly being made in reliance upon Rule 144A under the 1933
Act, written certifications from the Holder of the Certificate desiring to
effect the transfer, and from such Holder's prospective transferee,
substantially in the forms attached to the Agreement as Exhibit E and either F
or G, as applicable, and (ii) in all other cases, an Opinion of Counsel
satisfactory to it that such transfer may be made without such registration or
qualification (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor or the Trustee in their respective capacities as such),
together with copies of the written certification(s) of the Holder of the
Certificate desiring to effect the transfer and/or such Holder's prospective
transferee upon which such Opinion of Counsel is based. Neither the Depositor
nor the Trustee is obligated to register or qualify the Class of Certificates
specified on the face hereof under the 1933 Act or any other securities law or
to take any action not otherwise required under the Agreement to permit the
transfer of such Certificates without registration or qualification. Any Holder
desiring to effect a transfer of this Certificate shall be required to indemnify
the Trustee, the Depositor and the Seller against any liability that may result
if the transfer is not so exempt or is not made in accordance with such federal
and state laws.
No transfer of this Class P Certificate will be made unless
the Trustee has received either (i) an opinion of counsel acceptable to and in
form and substance satisfactory to the Trustee with respect to the
permissibility of such transfer under the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), and Section 4975 of the Internal Revenue Code
(the "Code") and stating, among other things, that the transferee's acquisition
and holding
-4-
of a Class P Certificate is permissible under applicable law, will not
constitute or result in a non-exempt prohibited transaction under Section 406 of
ERISA or Section 4975 of the Code and will not subject the Trustee, the
Depositor or the Servicers to any obligation or liability in addition to those
undertaken in the Agreement, all in accordance with Section 6.02(b) of the
Agreement or (ii) a representation letter, in the form as described by the
Agreement, stating that the transferee is not an employee benefit or other plan
subject to the prohibited transaction provisions of ERISA or Section 4975 of the
Code (a "Plan"), or any other person (including an investment manager, a named
fiduciary or a trustee of any Plan) acting, directly or indirectly, on behalf of
or purchasing any Certificate with "plan assets" of any Plan.
This Certificate is one of a duly authorized issue of
Certificates designated as set forth on the face hereof (the "Certificates").
The Certificates, in the aggregate, evidence the entire beneficial ownership
interest in the Trust Fund formed pursuant to the Agreement.
The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the Trust Fund for payment hereunder and that
the Trustee is not liable to the Certificateholders for any amount payable under
this Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement
and reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced hereby, and the rights,
duties and immunities of the Trustee.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor and the rights of the Certificateholders under the
Agreement from time to time by the parties thereto with the consent of the
Holders of the Class or Classes of Certificates affected thereby evidencing over
50% of the Voting Rights of such Class or Classes. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
with the Trustee upon surrender of this Certificate for registration of transfer
at the offices or agencies maintained by the Trustee for such purposes, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Trustee duly executed by the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new Certificates
in authorized denominations representing a like aggregate Percentage Interest
will be issued to the designated transferee.
The Certificates are issuable only as registered Certificates
without coupons in the Classes and denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
this Certificate is exchangeable for one or more
-5-
new Certificates evidencing the same Class and in the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
No service charge will be made to the Certificateholders for
any such registration of transfer, but the Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. The Depositor the Trustee and any agent of any of them may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and none of the Depositor, the Trustee or any such agent shall be
affected by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby (other than the obligations to make payments to
Certificateholders with respect to the termination of the Agreement) shall
terminate upon the earlier of (i) the later of (A) the maturity or other
liquidation (or Advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund and disposition of all property acquired upon
foreclosure or deed in lieu of foreclosure of any Mortgage Loan and (B) the
remittance of all funds due under the Agreement, or (ii) the optional repurchase
by the party named in the Agreement of all the Mortgage Loans and other assets
of the Trust Fund in accordance with the terms of the Agreement. Such optional
repurchase may be made only on or after the Distribution Date in February 2006
if on such Distribution Date the aggregate Stated Principal Balance of the
Mortgage Loans is less than the percentage of the aggregate Stated Principal
Balance specified in the Agreement of the Mortgage Loans at the Cut-off Date.
The exercise of such right will effect the early retirement of the Certificates.
In no event, however, will the Trust Fund created by the Agreement continue
beyond the expiration of 21 years after the death of certain persons identified
in the Agreement.
Unless this Certificate has been countersigned by an
authorized signatory of the Trustee by manual signature, this Certificate shall
not be entitled to any benefit under the Agreement, or be valid for any purpose.
-6-
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: JPMORGAN CHASE BANK,
not in its individual capacity but solely
as Trustee
By:______________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class P Certificates referred to in the
within-mentioned Agreement.
JPMORGAN CHASE BANK
Authorized signatory of JPMorgan Chase
Bank, not in its individual capacity but
solely as Trustee
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 __________________, the
assignee named above, or ________________________, as its agent.
EXHIBIT A-6
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 MAY BE MADE TO ANY PERSON,
UNLESS THE TRANSFEREE PROVIDES EITHER A CERTIFICATION PURSUANT TO SECTION
6.02(B) OF THE AGREEMENT OR AN OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE
AND THAT THE PURCHASE AND HOLDING OF THIS CERTIFICATE IS PERMISSIBLE UNDER
APPLICABLE LAW, WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED
TRANSACTION UNDER SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE AND WILL NOT SUBJECT THE
TRUSTEE, THE DEPOSITOR OR THE SERVICERS TO ANY OBLIGATION OR LIABILITY IN
ADDITION TO THOSE UNDERTAKEN IN THE AGREEMENT, ALL IN ACCORDANCE WITH 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
TRUSTEE THAT (1) SUCH TRANSFEREE IS NOT (A) THE UNITED STATES, ANY STATE OR
POLITICAL SUBDIVISION THEREOF, ANY POSSESSION OF THE UNITED STATES, OR ANY
AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN AN INSTRUMENTALITY
WHICH IS A CORPORATION IF ALL OF ITS ACTIVITIES ARE SUBJECT TO TAX AND EXCEPT
FOR XXXXXXX MAC, A MAJORITY OF ITS BOARD OF DIRECTORS IS NOT SELECTED BY SUCH
GOVERNMENTAL UNIT), (B) A FOREIGN GOVERNMENT, ANY INTERNATIONAL ORGANIZATION, OR
ANY AGENCY OR INSTRUMENTALITY OF EITHER OF THE FOREGOING, (C) ANY ORGANIZATION
(OTHER THAN CERTAIN FARMERS' COOPERATIVES DESCRIBED IN SECTION 521 OF THE CODE)
WHICH IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE UNLESS SUCH
ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE (INCLUDING
THE TAX IMPOSED BY SECTION 511 OF THE CODE ON UNRELATED BUSINESS TAXABLE
INCOME), (D) RURAL ELECTRIC AND TELEPHONE COOPERATIVES
DESCRIBED IN SECTION 1381(A)(2)(C) OF THE CODE, (E) AN ELECTING LARGE
PARTNERSHIP UNDER SECTION 775(A) OF THE CODE (ANY SUCH PERSON 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.
-2-
Certificate No.__
Class R Percentage Interest: ____
Date of Pooling and Servicing Agreement
and Cut-off Date: February 1, 2004
First Distribution Date:
March 25, 2004
Trustee: JPMorgan Chase Bank CUSIP:
Assumed Final Distribution Date: March 25, 2034
MORTGAGE PASS-THROUGH CERTIFICATE
SERIES 2004-AP1
evidencing a fractional undivided interest in the distributions
allocable to the Class R Certificates with respect to a Trust Fund
consisting primarily of a pool of conventional one- to four-family
fixed interest rate mortgage loans sold by NOMURA ASSET ACCEPTANCE
CORPORATION.
This Certificate is payable solely from the assets of the
Trust Fund, and does not represent an obligation of or interest in Nomura Asset
Acceptance Corporation ("NAAC") or the Trustee referred to below or any of their
affiliates or any other person. Neither this Certificate nor the underlying
Mortgage Loans are guaranteed or insured by any governmental entity or by NAAC
or the Trustee or any of their affiliates or any other person. None of NAAC, the
Trustee or any of their affiliates will have any obligation with respect to any
certificate or other obligation secured by or payable from payments on the
Certificates.
This certifies that 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 "Seller") to NAAC. The Trust Fund was
created pursuant to the Pooling and Servicing
-3-
Agreement dated as of the Cut-off Date specified above (the "Agreement"), among
NAAC, as depositor (the "Depositor"), the Seller, as seller, Option One Mortgage
Corporation, as a servicer, GMAC Mortgage Corporation, as a servicer, and
JPMorgan Chase Bank, as trustee (the "Trustee"), a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined
herein, capitalized terms used herein shall have the meaning ascribed to them in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of its acceptance hereof assents and by which such
Holder is bound.
Each Holder of this Certificate will be deemed to have agreed
to be bound by the restrictions set forth in the Agreement to the effect that
(i) each person holding or acquiring any Ownership Interest in this Certificate
must be a United States Person and a Permitted Transferee, (ii) the transfer of
any Ownership Interest in this Certificate will be conditioned upon the delivery
to the Trustee of, among other things, an affidavit to the effect that it is a
United States Person and Permitted Transferee, (iii) any attempted or purported
transfer of any Ownership Interest in this Certificate in violation of such
restrictions will be absolutely null and void and will vest no rights in the
purported transferee, and (iv) if any person other than a United States Person
and a Permitted Transferee acquires any Ownership Interest in this Certificate
in violation of such restrictions, then the Depositor will have the right, in
its sole discretion and without notice to the Holder of this Certificate, to
sell this Certificate to a purchaser selected by the Depositor, which purchaser
may be the Depositor, or any affiliate of the Depositor, on such terms and
conditions as the Depositor may choose.
The Trustee will distribute on the 25th day of each month, or,
if such 25th day is not a Business Day, the immediately following Business Day
(each, a "Distribution Date"), commencing on the First Distribution Date
specified above, to the Person in whose name this Certificate is registered at
the close of business on the last day (or if such last day is not a Business
Day, the Business Day immediately preceding such last day) of the calendar month
immediately preceding the month in which the Distribution Date occurs, an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amounts required to be distributed to the Holders of Certificates of the
same Class as this Certificate. The 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 Trustee
by check mailed to the address of the Person entitled thereto as such name and
address shall appear on the Certificate Register or, if such Person so requests
by notifying the Trustee in writing as specified in the Agreement.
Notwithstanding the above, the final distribution on this Certificate will be
made after due notice by the Trustee of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the office or agency
appointed by the Trustee for that purpose and designated in such notice.
No transfer of this Class R Certificate will be made unless
the Trustee has received either (i) an opinion of counsel acceptable to and in
form and substance satisfactory to
-4-
the Trustee with respect to the permissibility of such transfer under the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and
Section 4975 of the Internal Revenue Code (the "Code") and stating, among other
things, that the transferee's acquisition and holding of a Class R Certificate
is permissible under applicable law, will not constitute or result in a
non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of
the Code and will not subject the Trustee, the Depositor or the Servicers to any
obligation or liability in addition to those undertaken in the Agreement, all in
accordance with Section 6.02(b) of the Agreement or (ii) a representation
letter, in the form as described by the Agreement, stating that the transferee
is not an employee benefit or other plan subject to the prohibited transaction
provisions of ERISA or Section 4975 of the Code (a "Plan"), or any other person
(including an investment manager, a named fiduciary or a trustee of any Plan)
acting, directly or indirectly, on behalf of or purchasing any Certificate with
"plan assets" of any Plan.
This Certificate is one of a duly authorized issue of
Certificates designated as set forth on the face hereof (the "Certificates").
The Certificates, in the aggregate, evidence the entire beneficial ownership
interest in the Trust Fund formed pursuant to the Agreement.
The Certificateholder, by its acceptance of this Certificate,
agrees that it will look solely to the Trust Fund for payment hereunder and that
the Trustee is not liable to the Certificateholders for any amount payable under
this Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement
and reference is made to the Agreement for the interests, rights and limitations
of rights, benefits, obligations and duties evidenced hereby, and the rights,
duties and immunities of the Trustee.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor and the rights of the Certificateholders under the
Agreement from time to time by the parties thereto with the consent of the
Holders of the Class or Classes of Certificates affected thereby evidencing over
50% of the Voting Rights of such Class or Classes. Any such consent by the
Holder of this Certificate shall be conclusive and binding on such Holder and
upon all future Holders of this Certificate and of any Certificate issued upon
the transfer hereof or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of any of the
Certificates.
As provided in the Agreement and subject to certain
limitations therein set forth, the transfer of this Certificate is registrable
with the Trustee upon surrender of this Certificate for registration of transfer
at the offices or agencies maintained by the Trustee for such purposes, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Trustee duly executed by the Holder hereof or such Holder's
attorney duly authorized in writing, and thereupon one or more new Certificates
in authorized denominations representing a like aggregate Percentage Interest
will be issued to the designated transferee.
-5-
The Certificates are issuable only as registered Certificates
without coupons in the Classes and denominations specified in the Agreement. As
provided in the Agreement and subject to certain limitations therein set forth,
this Certificate is exchangeable for one or more new Certificates evidencing the
same Class and in the same aggregate Percentage Interest, as requested by the
Holder surrendering the same.
No service charge will be made to the Certificateholders for
any such registration of transfer, but the Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. The Depositor, the Trustee and any agent of any of them may treat the
Person in whose name this Certificate is registered as the owner hereof for all
purposes, and none of Depositor, the Trustee or any such agent shall be affected
by notice to the contrary.
The obligations created by the Agreement and the Trust Fund
created thereby (other than the obligations to make payments to
Certificateholders with respect to the termination of the Agreement) shall
terminate upon the earlier of (i) the later of (A) the maturity or other
liquidation (or Advance with respect thereto) of the last Mortgage Loan
remaining in the Trust Fund and disposition of all property acquired upon
foreclosure or deed in lieu of foreclosure of any Mortgage Loan and (B) the
remittance of all funds due under the Agreement, or (ii) the optional repurchase
by the party named in the Agreement of all the Mortgage Loans and other assets
of the Trust Fund in accordance with the terms of the Agreement. Such optional
repurchase may be made only on or after the Distribution Date in February 2006
if on such Distribution Date the aggregate Stated Principal Balance of the
Mortgage Loans is less than the percentage of the aggregate Stated Principal
Balance specified in the Agreement of the Mortgage Loans at the Cut-off Date.
The exercise of such right will effect the early retirement of the Certificates.
In no event, however, will the Trust Fund created by the Agreement continue
beyond the expiration of 21 years after the death of certain persons identified
in the Agreement.
Unless this Certificate has been countersigned by an
authorized signatory of the Trustee by manual signature, this Certificate shall
not be entitled to any benefit under the Agreement, or be valid for any purpose.
-6-
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated: JPMORGAN CHASE BANK,
not in its individual capacity but solely
as Trustee
By:______________________________________
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class R Certificates referred to in the
within-mentioned Agreement.
JPMORGAN CHASE BANK
Authorized signatory of JPMorgan Chase
Bank, not in its individual capacity but
solely as Trustee
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 __________________, the
assignee named above, or ________________________, as 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 loan 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 maturity date;
(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 MIN with respect to each Mortgage Loan; and
(l) the applicable Servicer.
B-1
EXHIBIT C-1
FORM OF INITIAL CERTIFICATION
Nomura Asset Acceptance Corporation XX Xxxxxx Xxxxx Bank
2 World Financial Center, Building B 4 New York Plaza, 6th Floor
New York, New York 10281 Xxx Xxxx, Xxx Xxxx 00000
Attention: ITS Structured Finance
Services,
Nomura Asset Acceptance Corp.
2004-AP1
Re: Pooling and Servicing Agreement, dated as of February 1, 2004,
among Nomura Asset Acceptance Corporation, as depositor,
Nomura Credit & Capital, Inc., as seller, Option One Mortgage
Corporation, as a servicer, GMAC Mortgage Corporation, as a
servicer, and JPMorgan Chase Bank, as trustee, issuing
Mortgage-Pass Through Certificates, Series 2004-AP1
--------------------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement, the undersigned, hereby certifies that, except as otherwise
noted on the attached exception report, that as to each Mortgage Loan listed on
the Mortgage Loan Schedule (other than any Mortgage Loan paid in full or listed
on the attachment hereto) it has reviewed the Mortgage File and the Mortgage
Loan Schedule and has determined that: (i) all documents required to be included
in the Mortgage File pursuant to the Pooling and Servicing Agreement are in its
possession; (ii) such documents have been reviewed by it and appear regular on
their face, have, where applicable, been executed and relate to such Mortgage
Loan; and (iii) based on examination by it, and only as to such documents, the
information set forth in the Mortgage Loan Schedule as to Mortgagor Name,
original principal balance and loan number respecting such Mortgage Loan is
correct and accurately reflects the information in the Mortgage Loan File.
The undersigned has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and Servicing Agreement. The undersigned makes no
representation that any documents specified in subclauses (iv) and (vi) of the
third paragraph of Section 2.01 should be included in any Mortgage File. The
undersigned makes no representations as to: (i) the validity, legality,
enforceability, recordability, sufficiency, due authorization or genuineness of
any of the documents contained in each Mortgage File of any of the Mortgage
Loans identified on the Mortgage Loan Schedule or (ii) the collectability,
insurability, effectiveness or suitability of any such Mortgage Loan.
C-1-1
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Pooling and Servicing
Agreement.
JPMORGAN CHASE BANK, as Custodian
By:______________________________
Name:
Title:
C-1-2
EXHIBIT C-2
FORM OF INTERIM CERTIFICATION
Nomura Asset Acceptance Corporation XX Xxxxxx Xxxxx Bank
2 World Financial Center, Building B 4 New York Plaza, 6th Floor
New York, New York 10281 Xxx Xxxx, Xxx Xxxx 00000
Attention: ITS Structured Finance
Services,
Nomura Asset Acceptance Corp.
2004-AP1
Re: Pooling and Servicing Agreement, dated as of February 1, 2004,
among Nomura Asset Acceptance Corporation, as depositor,
Nomura Credit & Capital, Inc., as seller, Option One Mortgage
Corporation, as a servicer, GMAC Mortgage Corporation, as a
servicer, and JPMorgan Chase Bank, as trustee, issuing
Mortgage-Pass Through Certificates, Series 2004-AP1
--------------------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement, the undersigned, hereby certifies that, except as otherwise
noted on the attached exception report, that as to each Mortgage Loan listed on
the Mortgage Loan Schedule (other than any Mortgage Loan paid in full or listed
on the attachment hereto) it has reviewed the Mortgage File and the Mortgage
Loan Schedule and has determined that: (i) all documents required to be included
in the Mortgage File pursuant to the Pooling and Servicing Agreement are in its
possession; (ii) such documents have been reviewed by it and appear regular on
their face, have, where applicable, been executed and relate to such Mortgage
Loan; and (iii) based on examination by it, and only as to such documents, the
information set forth in the Mortgage Loan Schedule as to Mortgagor Name,
original principal balance and loan number respecting such Mortgage Loan is
correct and accurately reflects the information in the Mortgage Loan File.
The undersigned has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and Servicing Agreement. The undersigned makes no
representation that any documents specified in subclauses (iv) and (vi) of the
third paragraph of Section 2.01 should be included in any Mortgage File. The
undersigned makes no representations as to: (i) the validity, legality,
enforceability, recordabililty, sufficiency, due authorization or genuineness of
any of the documents contained in each Mortgage File of any of the Mortgage
Loans identified on the Mortgage Loan Schedule or (ii) the collectability,
insurability, effectiveness or suitability of any such Mortgage Loan.
C-2-1
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Pooling and Servicing
Agreement.
JPMORGAN CHASE BANK, as Custodian
By:______________________________
Name:
Title:
C-2-2
EXHIBIT C-3
FORM OF FINAL CERTIFICATION
Nomura Asset Acceptance Corporation XX Xxxxxx Xxxxx Bank
2 World Financial Center, Building B 4 New York Plaza, 6th Floor
New York, New York 10281 Xxx Xxxx, Xxx Xxxx 00000
Attention: ITS Structured Finance
Services,
Nomura Asset Acceptance Corp.
2004-AP1
Re: Pooling and Servicing Agreement, dated as of February 1, 2004,
among Nomura Asset Acceptance Corporation, as depositor,
Nomura Credit & Capital, Inc., as seller, Option One Mortgage
Corporation, as a servicer, GMAC Mortgage Corporation, as a
servicer, and JPMorgan Chase Bank, as trustee, issuing
Mortgage-Pass Through Certificates, Series 2004-AP1
--------------------------------------------------------------
Ladies and Gentlemen:
In accordance with Section 2.02 of the above-captioned Pooling and
Servicing Agreement, the undersigned, hereby certifies that, except as otherwise
noted on the attached exception report, that as to each Mortgage Loan listed on
the Mortgage Loan Schedule (other than any Mortgage Loan paid in full or listed
on the attachment hereto) it has received the documents set forth in Section
2.01 and has determined that (i) all documents required to be included in the
Mortgage File pursuant to the Pooling and Servicing Agreement are in its
possession; (ii) such documents have been reviewed by it and appear regular on
their face, have, where applicable, been executed and relate to such Mortgage
Loan; and (iii) based on examination by it, and only as to such documents, the
information set forth in the Mortgage Loan Schedule as to Mortgagor name,
original principal balance and loan number respecting such Mortgage Loan is
correct and accurately reflects the information in the Mortgage Loan File.
The undersigned has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically required in the
above-referenced Pooling and Servicing Agreement. The undersigned makes no
representation that any documents specified in subclauses (iv) and (vi) of the
third paragraph of Section 2.01 should be included in any Mortgage File. The
undersigned makes no representations as to: (i) the validity, legality,
enforceability, recordability, sufficiency, due authorization or genuineness of
any of the documents contained in each Mortgage File of any of the Mortgage
Loans identified on the Mortgage Loan Schedule or (ii) the collectability,
insurability, effectiveness or suitability of any such Mortgage Loan.
C-3-1
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Pooling and Servicing
Agreement.
JPMORGAN CHASE BANK, as Custodian
By:______________________________
Name:
Title:
C-3-2
EXHIBIT D
FORM OF TRANSFER AFFIDAVIT
Affidavit pursuant to Section
860E(e)(4) of the Internal Revenue
Code of 1986, as amended, and for
other purposes
STATE OF )
)ss:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That he/she is [Title of Officer] of [Name of Investor] (the
"Investor"), a [savings institution] [corporation] duly organized and existing
under the laws of [the State of _____] [the United States], on behalf of which
he makes this affidavit.
2. That (i) the Investor is not a "disqualified organization" as
defined in Section 860E(e)(5) of the Internal Revenue Code of 1986, as amended
(the "Code"), and will not be a disqualified organization as of [Closing Date]
[date of purchase]; (ii) it is not acquiring the Nomura Asset Acceptance
Corporation Alternative Loan Trust, Mortgage Pass Through Certificates, Series
2004-AP1, Class R Certificates (the "Residual Certificates") for the account of
a disqualified organization; (iii) it consents to any amendment of the Pooling
and Servicing Agreement that shall be deemed necessary by Nomura Asset
Acceptance Corporation (upon advice of counsel) to constitute a reasonable
arrangement to ensure that the Residual Certificates will not be owned directly
or indirectly by a disqualified organization; and (iv) it will not transfer such
Residual Certificates unless (a) it has received from the transferee an
affidavit in substantially the same form as this affidavit containing these same
four representations and (b) as of the time of the transfer, it does not have
actual knowledge that such affidavit is false.
3. That the Investor is one of the following: (i) a citizen or resident
of the United States, (ii) a corporation or partnership (including an entity
treated as a corporation or partnership for federal income tax purposes) created
or organized in, or under the laws of, the United States or any state thereof or
the District of Columbia (except, in the case of a partnership, to the extent
provided in regulations), provided that no partnership or other entity treated
as a partnership for United States federal income tax purposes shall be treated
as a United States Person unless all persons that own an interest in such
partnership either directly or through any entity that is not a corporation for
United States federal income tax purposes are United States Persons, (iii) an
estate whose income is subject to United States federal income tax regardless of
its source, or (iv) a trust other than a "foreign trust," as defined in Section
7701 (a)(31) of the Code.
4. That the Investor's taxpayer identification number is
______________________.
D-1
5. That no purpose of the acquisition of the Residual Certificates is
to avoid or impede the assessment or collection of tax.
6. That the Investor understands that, as the holder of the Residual
Certificates, the Investor may incur tax liabilities in excess of any cash flows
generated by such Residual Certificates.
7. That the Investor intends to pay taxes associated with holding the
Residual Certificates as they become due.
IN WITNESS WHEREOF, the Investor has caused this instrument to be
executed on its behalf, pursuant to authority of its Board of Directors, by its
[Title of Officer] this ____ day of _________, 20__.
[NAME OF INVESTOR]
By: ___________________________________
[Name of Officer]
[Title of Officer]
[Address of Investor for receipt of
distributions]
Address of Investor for receipt of tax
information:
D-2
Personally appeared before me the above-named [Name of Officer], known
or proved to me to be the same person who executed the foregoing instrument and
to be the [Title of Officer] of the Investor, and acknowledged to me that he/she
executed the same as his/her free act and deed and the free act and deed of the
Investor.
Subscribed and sworn before me this ___ day of _________, 20___.
NOTARY PUBLIC
COUNTY OF
STATE OF
My commission expires the ___ day of ___________________, 20___.
D-3
EXHIBIT E
FORM OF TRANSFEROR CERTIFICATE
______________, 2004
Nomura Asset Acceptance Corporation
2 World Xxxxxxxxx Xxxxxx, Xxxxxxxx X
Xxx Xxxx, Xxx Xxxx 00000
JPMorgan Chase Bank
Institutional Trust Services
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Nomura Asset Acceptance
Corporation, Alternative Loan Trust, Series 2004-AP1
Re: Nomura Asset Acceptance Corporation Mortgage Pass-Through
Certificates, Series 2004-AP1, Class__
---------------------------------------------------------
Ladies and Gentlemen:
In connection with the sale by ___________ (the "Seller") to ________
(the "Purchaser") of $_________ Initial Certificate Principal Balance of
Mortgage Pass-Through Certificates, Series 2004-AP1, Class _____ (the
"Certificates"), issued pursuant to the Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement"), dated as of February 1, 2004, among Nomura
Asset Acceptance Corporation, as depositor (the "Depositor"), Nomura Credit &
Capital, Inc., as seller, Option One Mortgage Corporation, as a servicer, GMAC
Mortgage Corporation, as a servicer, and JPMorgan Chase Bank, as trustee (the
"Trustee"). The Seller hereby certifies, represents and warrants to, a covenants
with, the Depositor and the Trustee that:
Neither the Seller nor anyone acting on its behalf has (a) offered,
pledged, sold, disposed of or otherwise transferred any Certificate, any
interest in any Certificate or any other similar security to any person in any
manner, (b) has solicited any offer to buy or to accept a pledge, disposition or
other transfer of any Certificate, any interest in any Certificate or any other
similar security from any person in any manner, (c) has otherwise approached or
negotiated with respect to any Certificate, any interest in any Certificate or
any other similar security with any person in any manner, (d) has made any
general solicitation by means of general advertising or in any other manner, or
(e) has taken any other action, that (as to any of (a) through (e) above) would
constitute a distribution of the Certificates under the Securities Act of 1933
(the "Act"), that would render the disposition of any Certificate a violation of
Section 5 of the Act or any state securities law, or that would require
registration or qualification pursuant thereto. The Seller will not act in any
manner set forth in the foregoing sentence with respect to any Certificate. The
Seller has not and will not sell or otherwise transfer any of the Certificates,
except in compliance with the provisions of the Pooling and Servicing Agreement.
E-1
Very truly yours,
_______________________________
(Seller)
By:____________________________
Name:__________________________
Title:_________________________
E-2
EXHIBIT F
FORM OF INVESTOR REPRESENTATION LETTER (NON-RULE 144A)
___________,2004
Nomura Asset Acceptance Corporation
2 World Financial Center
New York, New York 10281
JPMorgan Chase Bank
Institutional Trust Services
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Nomura Asset Acceptance Corporation,
Alternative Loan Trust, 2004-AP1
Re: Nomura Asset Acceptance Corporation, Alternative Loan Trust,
Mortgage Pass-Through Certificates, Series 2004-AP1
------------------------------------------------------------
Ladies and Gentlemen:
_______________ (the "Purchaser") intends to purchase from ____________
(the "Seller") $_________ Initial Certificate Principal Balance of Mortgage
Pass-Through Certificates, Series 2004-AP1, Class _____ (the "Certificates"),
issued pursuant to the Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), dated as of February 1, 2004, among Nomura Asset
Acceptance Corporation, as depositor (the "Depositor"), Nomura Credit & Capital,
Inc., as seller, Option One Mortgage Corporation, as a servicer, GMAC Mortgage
Corporation, as a servicer, and XX Xxxxxx Xxxxx Bank, as trustee (the
"Trustee"). All terms used herein and not otherwise defined shall have the
meanings set forth in the Pooling and Servicing Agreement. The Purchaser hereby
certifies, represents and warrants to, and covenants with, the Depositor and the
Trustee that:
1. The Purchaser understands that (a) the Certificates
have not been and will not be registered or qualified
under the Securities Act of 1933, as amended (the
"Act") or any state securities law, (b) the Depositor
is not required to so register or qualify the
Certificates, (c) the Certificates may be resold only
if registered and qualified pursuant to the
provisions of the Act or any state securities law, or
if an exemption from such registration and
qualification is available, (d) the Pooling and
Servicing Agreement contains restrictions regarding
the transfer of the Certificates and (e) the
Certificates will bear a legend to the foregoing
effect.
2. The Purchaser is acquiring the Certificates for its
own account for investment only and not with a view
to or for sale in connection with any
F-1
distribution thereof in any manner that would violate
the Act or any applicable state securities laws.
3. The Purchaser is (a) a substantial, sophisticated
institutional investor having such knowledge and
experience in financial and business matters, and, in
particular, in such matters related to securities
similar to the Certificates, such that it is capable
of evaluating the merits and risks of investment in
the Certificates, (b) able to bear the economic risks
of such an investment and (c) an "accredited
investor" within the meaning of Rule 501 (a)
promulgated pursuant to the Act.
4. The Purchaser has been furnished with, and has had an
opportunity to review (a) a copy of the Pooling and
Servicing Agreement and (b) such other information
concerning the Certificates, the Mortgage Loans and
the Depositor as has been requested by the Purchaser
from the Depositor or the Seller and is relevant to
the Purchaser's decision to purchase the
Certificates. The Purchaser has had any questions
arising from such review answered by the Depositor or
the Seller to the satisfaction of the Purchaser.
5. The Purchaser has not and will not nor has it
authorized or will it authorize any person to (a)
offer, pledge, sell, dispose of or otherwise transfer
any Certificate, any interest in any Certificate or
any other similar security to any person in any
manner, (b) solicit any offer to buy or to accept a
pledge, disposition of other transfer of any
Certificate, any interest in any Certificate or any
other similar security from any person in any manner,
(c) otherwise approach or negotiate with respect to
any Certificate, any interest in any Certificate or
any other similar security with any person in any
manner, (d) make any general solicitation by means of
general advertising or in any other manner or (e)
take any other action, that (as to any of (a) through
(e) above) would constitute a distribution of any
Certificate under the Act, that would render the
disposition of any Certificate a violation of Section
5 of the Act or any state securities law, or that
would require registration or qualification pursuant
thereto. The Purchaser will not sell or otherwise
transfer any of the Certificates, except in
compliance with the provisions of the Pooling and
Servicing Agreement.
F-2
Very truly yours,
____________________________
(Purchaser)
By:_________________________
Name:_______________________
Title:______________________
F-3
EXHIBIT G
FORM OF RULE 144A INVESTMENT LETTER
[Date]
Nomura Credit & Capital, Inc.
2 World Financial Xxxxxx, Xxxxxxxx X
Xxx Xxxx, Xxx Xxxx 00000
Nomura Asset Acceptance Corporation
2 World Financial Center
New York, New York 10281
JPMorgan Chase Bank
Institutional Trust Services
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Nomura Asset Acceptance Corporation, Alternative Loan Trust,
Mortgage Pass-Through Certificates, Series 2004-AP1 (the
"Certificates"), including the Class __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;
G-1
(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 Trustee) is
executed promptly by the purchaser and delivered to
the addressees hereof and (3) all offers or
solicitations in connection with the sale, whether
directly or through any agent acting on our behalf,
are limited only to Eligible Purchasers and are not
made by means of any form of general solicitation or
general advertising whatsoever; and
(B) if the 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 JPMorgan Chase Bank (the "Trustee")
so requests, a satisfactory Opinion of Counsel is
furnished to such effect, which Opinion of Counsel
shall be an expense of the transferor or the
transferee;
(vii) we agree to be bound by all of the terms (including
those relating to restrictions on transfer) of the
Pooling and Servicing, pursuant to which the Trust
was formed; we have reviewed carefully and understand
the terms of the Pooling and Servicing Agreement;
(viii) we either: (i) are not acquiring the Privately
Offered Certificate directly or indirectly by, or on
behalf of, an employee benefit plan or other
retirement arrangement which is subject to Title I of
the Employee Retirement Income Security Act of 1974,
as amended, and/or section 4975 of the Internal
Revenue Code of 1986, as amended, or (ii) are
providing the opinion of counsel specified in Section
6.02(b) of the Agreement.
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(ix) we understand that each of the Class ___ 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 TRUSTEE OF A LETTER SUBSTANTIALLY IN
THE FORM PROVIDED IN THE AGREEMENT AND (B) THE
RECEIPT BY THE TRUSTEE OF SUCH OTHER EVIDENCE
ACCEPTABLE TO THE TRUSTEE THAT SUCH REOFFER, RESALE,
PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT AND OTHER APPLICABLE LAWS OR IN EACH
CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES
LAWS OF THE UNITED STATES AND ANY OTHER APPLICABLE
JURISDICTION.
NO TRANSFER OF THIS CERTIFICATE MAY BE MADE TO ANY
PERSON, UNLESS THE TRANSFEREE PROVIDES EITHER A
CERTIFICATION PURSUANT TO SECTION 6.02(b) OF THE
AGREEMENT OR AN OPINION OF COUNSEL SATISFACTORY TO
THE TRUSTEE THAT THE PURCHASE AND HOLDING OF THIS
CERTIFICATE IS PERMISSIBLE UNDER APPLICABLE LAW, WILL
NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED
TRANSACTION UNDER SECTION 406 OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SECTION 4975 OF THE CODE AND WILL NOT
G-3
SUBJECT THE TRUSTEE, THE DEPOSITOR OR THE SERVICERS
TO ANY OBLIGATION OR LIABILITY IN ADDITION TO THOSE
UNDERTAKEN IN THE AGREEMENT, ALL IN ACCORDANCE WITH
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 February 1, 2004,
between Nomura Asset Acceptance Corporation, as depositor, Nomura Credit &
Capital, Inc., as seller, Option One Mortgage Corporation, as a servicer, GMAC
Mortgage Corporation, as a servicer, and JPMorgan Chase Bank, as Trustee (the
"Pooling and Servicing Agreement').
If the Purchaser proposes that its Certificates be registered in the
name of a nominee on its behalf, the Purchaser has identified such nominee
below, and has caused such nominee to complete the Nominee Acknowledgment at the
end of this letter.
Name of Nominee (if any):______________________
G-4
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]
G-5
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the
Certificates being registered in its name, the sole beneficial owner thereof is
and shall be the Purchaser identified above, for whom the undersigned is acting
as nominee.
[NAME OF NOMINEE]
By:________________________
(Authorized Officer)
[By:__________________________
Attorney-in-fact]
G-6
EXHIBIT H
REQUEST FOR RELEASE OF DOCUMENTS
To: JPMorgan Chase Bank
Institutional Trust Services
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
RE: Pooling and Servicing Agreement dated as of February 1, 2004, among
Nomura Asset Acceptance Corporation, as depositor, Nomura Credit &
Capital, Inc., as seller, Option One Mortgage Corporation, as a
servicer, GMAC Mortgage Corporation, as a servicer, and JPMorgan Chase
Bank, as Trustee
In connection with the administration of the Mortgage Loans held by you
pursuant to the above-captioned Pooling and Servicing Agreement, we request the
release, and hereby acknowledge receipt, of the Mortgage File for the Mortgage
Loan described below, for the reason indicated.
Mortgage Loan Number:
--------------------
Mortgagor Name, Address & Zip Code:
----------------------------------
Reason for Requesting Documents (check one):
-------------------------------------------
_____ 1. Mortgage Paid in Full and proceeds have been
deposited into the Custodial Account
_____ 2. Foreclosure
_____ 3. Substitution
_____ 4. Other Liquidation
____ 5. Nonliquidation Reason:________________________
_____ 6. Mortgage Loan paid in full
By:_________________________________
(authorized signer)
Issuer:_____________________________
Address:____________________________
Date:_______________________________
H-1
EXHIBIT I
DTC Letter of Representations
[provided upon request]
I-1
EXHIBIT J
Schedule of Mortgage Loans with Lost Notes
[None]
J-1
EXHIBIT K
Prepayment Charge Schedule
K-1
EXHIBIT L
FORM OF SERVICER'S CERTIFICATION
Re: Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated as of February 1, 2004, by and among Nomura
Asset Acceptance Corporation, as depositor (the "Depositor"),
Nomura Credit & Capital, Inc., as seller (the "Seller"),
JPMorgan Chase Bank, as trustee (the "Trustee"), Option One
Mortgage Corporation, as a servicer ("Option One") and GMAC
Mortgage Corporation, as a servicer ("GMAC")
I, [identify the certifying individual], certify to the Depositor and the
Trustee, and their officers, directors and affiliates, and with the knowledge
and intent that they will rely upon this certification, that:
1. I am responsible for reviewing the activities performed by [Option
One][GMAC] under the Pooling and Servicing Agreement and based upon my
knowledge and the annual compliance review required under the Pooling
and Servicing Agreement, and except as disclosed in the annual
compliance statement required to be delivered to the Trustee in
accordance with the terms of the Pooling and Servicing Agreement (which
has been so delivered to the Trustee), [Option One][GMAC] has fulfilled
its obligations under the Pooling and Servicing Agreement. Based upon
my knowledge, the annual statement of compliance delivered by [Option
One][GMAC] under the Pooling and Servicing Agreement does not contain
any untrue statement of material fact or omit to state a material fact
necessary to make the statements made, in light of the circumstances
under which such statement was made, not misleading; and
2. Based on my knowledge, all significant deficiencies relating to [Option
One's][GMAC's] compliance with the minimum servicing standards for
purposes of the report provided by an independent public accountant,
after conducting a review conducted in compliance with the Uniform
Single Attestation Program for Mortgage Bankers or similar procedure,
as set forth in the Pooling and Servicing Agreement, have been
disclosed to such accountant and are included in such reports.
Date: _________________________
_______________________________
[Signature]
[Title]
L-1
EXHIBIT M
FORM OF TRUSTEE'S CERTIFICATION
[DEPOSITOR/ISSUER NAME]
Re: [Transaction Name]
Reference is made to the Pooling and Servicing Agreement, dated as of February
1, 2004 (the "Pooling and Servicing Agreement"), by and among JPMorgan Chase
Bank (the "Trustee"), Option One Mortgage Corporation, as a servicer ("Option
One"), GMAC Mortgage Corporation, as a servicer ("GMAC"), Nomura Asset
Acceptance Corporation, as depositor (the "Depositor") and Nomura Credit &
Capital, Inc., as seller (the "Seller"). The Trustee, hereby certifies to the
Depositor, and its officers, directors and affiliates, and with the knowledge
and intent that they will rely upon this certification, that:
(i) The Trustee has reviewed the annual report on Form 10-K for
the fiscal year [ ], and all reports on Form 8-K containing
distribution reports filed in respect of periods included in
the year covered by that annual report, relating to the
above-referenced trust;
(ii) Based solely upon the information provided to us by the
servicers, the information set forth in the reports referenced
in (i) above does not contain any untrue statement of material
fact; and
(iii) Based on my knowledge, the distribution information required
to be provided by the Trustee under the Pooling and Servicing
Agreement is included in these reports.
Date:
JPMorgan Chase Bank, as Trustee
By: ___________________________
Name: ___________________________
Title: ___________________________
M-1
