ACE SECURITIES CORP. Depositor GMAC MORTGAGE CORPORATION a Servicer OCWEN LOAN SERVICING, LLC a Servicer WELLS FARGO BANK, N.A. Master Servicer and Securities Administrator HSBC BANK USA, NATIONAL ASSOCIATION Trustee POOLING AND SERVICING AGREEMENT...
ACE
SECURITIES CORP.
Depositor
GMAC
MORTGAGE CORPORATION
a
Servicer
OCWEN
LOAN SERVICING, LLC
a
Servicer
▇▇▇▇▇
FARGO BANK, N.A.
Master
Servicer and Securities Administrator
HSBC
BANK
USA, NATIONAL ASSOCIATION
Trustee
Dated
as
of January 1, 2006
Asset
Backed Pass-Through Certificates
TABLE
OF
CONTENTS
|
ARTICLE
I
|
DEFINITIONS
|
|
SECTION
1.01.
|
Defined
Terms.
|
|
SECTION
1.02.
|
Allocation
of Certain Interest Shortfalls.
|
|
ARTICLE
II
|
CONVEYANCE
OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES
|
|
SECTION
2.01.
|
Conveyance
of the Mortgage Loans.
|
|
SECTION
2.02.
|
Acceptance
of REMIC I by Trustee.
|
|
SECTION
2.03.
|
Repurchase
or Substitution of Mortgage Loans.
|
|
SECTION
2.04.
|
Representations
and Warranties of the Master Servicer.
|
|
SECTION
2.05.
|
Representations,
Warranties and Covenants of each Servicer.
|
|
SECTION
2.06.
|
Issuance
of the REMIC I Regular Interests and the Class R-I
Interest.
|
|
SECTION
2.07.
|
Conveyance
of the REMIC I Regular Interests and REMIC II Regular Interests;
Acceptance of REMIC I, REMIC II and REMIC III by the
Trustee.
|
|
SECTION
2.08.
|
Issuance
of the Residual Certificates.
|
|
SECTION
2.09.
|
Establishment
of the Trust.
|
|
SECTION
2.10.
|
Purpose
and Powers of the Trust.
|
|
ARTICLE
III
|
ADMINISTRATION
AND SERVICING OF THE MORTGAGE LOANS; ACCOUNTS
|
|
SECTION
3.01.
|
The
Servicers to Act as Servicers.
|
|
SECTION
3.02.
|
Sub-Servicing
Agreements Between a Servicer and Sub-Servicers.
|
|
SECTION
3.03.
|
Successor
Sub-Servicers.
|
|
SECTION
3.04.
|
No
Contractual Relationship Between Sub-Servicer, Subcontractor, Trustee
or
the Certificateholders.
|
|
SECTION
3.05.
|
Assumption
or Termination of Sub-Servicing Agreement by Successor
Servicer.
|
|
SECTION
3.06.
|
Collection
of Certain Mortgage Loan Payments.
|
|
SECTION
3.07.
|
Collection
of Taxes, Assessments and Similar Items; Servicing
Accounts.
|
|
SECTION
3.08.
|
Collection
Accounts and Distribution Account.
|
|
SECTION
3.09.
|
Withdrawals
from the Collection Accounts and Distribution Account.
|
|
SECTION
3.10.
|
Investment
of Funds in the Investment Accounts.
|
|
SECTION
3.11.
|
Maintenance
of Hazard Insurance, Errors and Omissions and Fidelity Coverage and
Primary Mortgage Insurance.
|
|
SECTION
3.12.
|
Enforcement
of Due-on-Sale Clauses; Assumption Agreements.
|
|
SECTION
3.13.
|
Realization
Upon Defaulted Mortgage Loans.
|
|
SECTION
3.14.
|
Trustee
to Cooperate; Release of Mortgage Files.
|
|
SECTION
3.15.
|
Servicing
Compensation.
|
|
SECTION
3.16.
|
Collection
Account Statements.
|
|
SECTION
3.17.
|
Annual
Statement as to Compliance.
|
|
SECTION
3.18.
|
Assessments
of Compliance and Attestation Reports.
|
|
SECTION
3.19.
|
Annual
Certification; Additional Information.
|
|
SECTION
3.20.
|
Access
to Certain Documentation.
|
|
SECTION
3.21.
|
Title,
Management and Disposition of REO Property.
|
|
SECTION
3.22.
|
Obligations
of the Servicers in Respect of Prepayment Interest Shortfalls; Relief
Act
Interest Shortfalls.
|
|
SECTION
3.23.
|
Reserved.
|
|
SECTION
3.24.
|
Reserve
Fund.
|
|
SECTION
3.25.
|
Advance
Facility.
|
|
SECTION
3.26.
|
Indemnification.
|
|
ARTICLE
IV
|
ADMINISTRATION
AND MASTER SERVICING OF THE MORTGAGE LOANS BY THE MASTER
SERVICER
|
|
SECTION
4.01.
|
Master
Servicer.
|
|
SECTION
4.02.
|
REMIC-Related
Covenants.
|
|
SECTION
4.03.
|
Monitoring
of Servicers.
|
|
SECTION
4.04.
|
Fidelity
Bond.
|
|
SECTION
4.05.
|
Power
to Act; Procedures.
|
|
SECTION
4.06.
|
Due-on-Sale
Clauses; Assumption Agreements.
|
|
SECTION
4.07.
|
Documents,
Records and Funds in Possession of Master Servicer To Be Held for
Trustee.
|
|
SECTION
4.08.
|
Standard
Hazard Insurance and Flood Insurance Policies.
|
|
SECTION
4.09.
|
Presentment
of Claims and Collection of Proceeds.
|
|
SECTION
4.10.
|
Reserved.
|
|
SECTION
4.11.
|
Trustee
to Retain Possession of Certain Insurance Policies and
Documents.
|
|
SECTION
4.12.
|
Realization
Upon Defaulted Mortgage Loans.
|
|
SECTION
4.13.
|
Compensation
for the Master Servicer.
|
|
SECTION
4.14.
|
REO
Property.
|
|
SECTION
4.15.
|
Master
Servicer Annual Statement of Compliance.
|
|
SECTION
4.16.
|
Master
Servicer Assessments of Compliance and Attestation
Reports.
|
|
SECTION
4.17.
|
Master
Servicer Attestation Reports.
|
|
SECTION
4.18.
|
Annual
Certification.
|
|
SECTION
4.19.
|
Obligation
of the Master Servicer in Respect of Prepayment Interest
Shortfalls.
|
|
SECTION
4.20.
|
Prepayment
Penalty Verification.
|
|
ARTICLE
V
|
PAYMENTS
TO CERTIFICATEHOLDERS
|
|
SECTION
5.01.
|
Distributions.
|
|
SECTION
5.02.
|
Statements
to Certificateholders.
|
|
SECTION
5.03.
|
Servicer
Reports; P&I Advances.
|
|
SECTION
5.04.
|
Allocation
of Realized Losses.
|
|
SECTION
5.05.
|
Compliance
with Withholding Requirements.
|
|
SECTION
5.06.
|
Reports
Filed with Securities and Exchange Commission.
|
|
SECTION
5.07.
|
Supplemental
Interest Trust.
|
|
SECTION
5.08.
|
Tax
Treatment of Swap Payments and Swap Termination
Payments.
|
|
ARTICLE
VI
|
THE
CERTIFICATES
|
|
SECTION
6.01.
|
The
Certificates.
|
|
SECTION
6.02.
|
Registration
of Transfer and Exchange of Certificates.
|
|
SECTION
6.03.
|
Mutilated,
Destroyed, Lost or Stolen Certificates.
|
|
SECTION
6.04.
|
Persons
Deemed Owners.
|
|
SECTION
6.05.
|
Certain
Available Information.
|
|
ARTICLE
VII
|
THE
DEPOSITOR, THE SERVICERS AND THE MASTER SERVICER
|
|
SECTION
7.01.
|
Liability
of the Depositor, the Servicers and the Master
Servicer.
|
|
SECTION
7.02.
|
Merger
or Consolidation of the Depositor, the Servicers or the Master
Servicer.
|
|
SECTION
7.03.
|
Limitation
on Liability of the Depositor, the Servicers, the Master Servicer
and
Others.
|
|
SECTION
7.04.
|
Limitation
on Resignation of the Servicers.
|
|
SECTION
7.05.
|
Limitation
on Resignation of the Master Servicer.
|
|
SECTION
7.06.
|
Assignment
of Master Servicing.
|
|
SECTION
7.07.
|
Rights
of the Depositor in Respect of the Servicers and the Master
Servicer.
|
|
SECTION
7.08.
|
Duties
of the Credit Risk Manager.
|
|
SECTION
7.09.
|
Limitation
Upon Liability of the Credit Risk Manager.
|
|
SECTION
7.10.
|
Removal
of the Credit Risk Manager.
|
|
SECTION
7.11.
|
Transfer
of Servicing by Sponsor.
|
|
ARTICLE
VIII
|
DEFAULT
|
|
SECTION
8.01.
|
Servicer
Events of Default.
|
|
SECTION
8.02.
|
Master
Servicer to Act; Appointment of Successor.
|
|
SECTION
8.03.
|
Notification
to Certificateholders.
|
|
SECTION
8.04.
|
Waiver
of Servicer Events of Default.
|
|
ARTICLE
IX
|
CONCERNING
THE TRUSTEE AND THE SECURITIES ADMINISTRATOR
|
|
SECTION
9.01.
|
Duties
of Trustee and Securities Administrator.
|
|
SECTION
9.02.
|
Certain
Matters Affecting Trustee and Securities Administrator.
|
|
SECTION
9.03.
|
Trustee
and Securities Administrator not Liable for Certificates or Mortgage
Loans.
|
|
SECTION
9.04.
|
Trustee
and Securities Administrator May Own Certificates.
|
|
SECTION
9.05.
|
Fees
and Expenses of Trustee and Securities Administrator.
|
|
SECTION
9.06.
|
Eligibility
Requirements for Trustee and Securities Administrator.
|
|
SECTION
9.07.
|
Resignation
and Removal of Trustee and Securities Administrator.
|
|
SECTION
9.08.
|
Successor
Trustee or Securities Administrator.
|
|
SECTION
9.09.
|
Merger
or Consolidation of Trustee or Securities
Administrator.
|
|
SECTION
9.10.
|
Appointment
of Co-Trustee or Separate Trustee.
|
|
SECTION
9.11.
|
Appointment
of Office or Agency.
|
|
SECTION
9.12.
|
Representations
and Warranties.
|
|
ARTICLE
X
|
TERMINATION
|
|
▇▇▇▇▇▇▇
▇▇.▇▇.
|
▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ or Liquidation of All Mortgage Loans.
|
|
SECTION
10.02.
|
Additional
Termination Requirements.
|
|
ARTICLE
XI
|
REMIC
PROVISIONS
|
|
SECTION
11.01.
|
REMIC
Administration.
|
|
SECTION
11.02.
|
Prohibited
Transactions and Activities.
|
|
SECTION
11.03.
|
Indemnification.
|
|
ARTICLE
XII
|
MISCELLANEOUS
PROVISIONS
|
|
SECTION
12.01.
|
Amendment.
|
|
SECTION
12.02.
|
Recordation
of Agreement; Counterparts.
|
|
SECTION
12.03.
|
Limitation
on Rights of Certificateholders.
|
|
SECTION
12.04.
|
Governing
Law.
|
|
SECTION
12.05.
|
Notices.
|
|
SECTION
12.06.
|
Severability
of Provisions.
|
|
SECTION
12.07.
|
Notice
to Rating Agencies.
|
|
SECTION
12.08.
|
Article
and Section References.
|
|
SECTION
12.09.
|
Grant
of Security Interest.
|
|
SECTION
12.10.
|
Survival
of Indemnification.
|
|
SECTION
12.11.
|
Intention
of the Parties and Interpretation
|
Exhibits
|
Exhibit
A-1
|
Form
of Class A Certificate
|
|
Exhibit
A-2A
|
Form
of Class M-[1A] [2] [3] Certificate
|
|
Exhibit
A-2B
|
Form
of Class M-[1B] [4] [5] [6] [7] [8] [9]
|
|
Exhibit
A-3
|
Form
of Class B-1 Certificate
|
|
Exhibit
A-4
|
Form
of Class CE-1 Certificate and Class CE-2 Certificate
|
|
Exhibit
A-5
|
Form
of Class P Certificate
|
|
Exhibit
A-6
|
Form
of Class R Certificate
|
|
Exhibit
B-1
|
Form
of Transferor Representation Letter and Form of Transferee Representation
Letter in Connection with Transfer of the Class B-1 Certificates,
Class P
Certificates, Class CE-1 Certificates, Class CE-2 Certificates and
Residual Certificates Pursuant to Rule 144A Under the Securities
Act
|
|
Exhibit
B-2
|
Form
of Transferor Representation Letter and Form of Transferee Representation
Letter in Connection with Transfer of the Class B-1 Certificates,
Class P
Certificates, Class CE-1 Certificates, Class CE-2 Certificates and
Residual Certificates Pursuant to Rule 501(a) Under the Securities
Act
|
|
Exhibit
B-3
|
Form
of Transfer Affidavit and Agreement and Form of Transferor Affidavit
in
Connection with Transfer of Residual Certificates
|
|
Exhibit
C
|
Form
of Servicer Certification
|
|
Exhibit
D
|
Form
of Power of Attorney
|
|
Exhibit
E
|
Servicing
Criteria
|
|
Exhibit
F
|
Mortgage
Loan Purchase Agreement between the Sponsor and the
Depositor
|
|
Exhibit
G
|
Form
10-D, Form 8-K and Form 10-K Reporting Responsibility
|
|
Exhibit
H
|
Additional
Disclosure Notification
|
|
Exhibit
I
|
Swap
Agreement
|
|
Schedule
1
|
Mortgage
Loan Schedule
|
|
Schedule
2
|
Prepayment
Charge Schedule
|
|
Schedule
3
|
Reserved.
|
|
Schedule
4
|
Standard
File Layout - Delinquency Reporting
|
|
Schedule
5
|
Standard
File Layout - Scheduled/Scheduled
|
|
Schedule
6
|
Data
Requirements of Servicing Advances Incurred Prior to Cut-off Date
|
This
Pooling and Servicing Agreement, is dated and effective as of January 1, 2006,
among ACE SECURITIES CORP., as Depositor, GMAC MORTGAGE CORPORATION as a
Servicer and OCWEN LOAN SERVICING, LLC as a Servicer, ▇▇▇▇▇ FARGO BANK,
NATIONAL
ASSOCIATION,
as
Master Servicer and Securities Administrator and HSBC BANK USA, NATIONAL
ASSOCIATION, as Trustee.
PRELIMINARY
STATEMENT:
The
Depositor intends to sell pass-through certificates to be issued hereunder
in
multiple classes, which in the aggregate will evidence the entire beneficial
ownership interest of the Trust Fund created hereunder. The Trust Fund will
consist of a segregated pool of assets comprised of the Mortgage Loans, the
Subsequent Mortgage Loans and certain other related assets subject to this
Agreement.
REMIC
I
As
provided herein, the Trustee will elect to treat the segregated pool of assets
consisting of the Mortgage Loans and certain other related assets subject to
this Agreement (other than the Reserve Fund, and for the avoidance of doubt,
the
Supplemental Interest Trust and the Swap Agreement) as a REMIC for federal
income tax purposes, and such segregated pool of assets will be designated
as
“REMIC I”. The Class R-I Interest will be the sole class of “residual interests”
in REMIC I for purposes of the REMIC Provisions (as defined herein). The
following table irrevocably sets forth the designation, the REMIC I Remittance
Rate, the initial Uncertificated Balance and, for purposes of satisfying
Treasury regulation Section 1.860G-1(a)(4)(iii), the “latest possible
maturity date” for each of the REMIC I Regular Interests (as defined herein).
None of the REMIC I Regular Interests will be certificated.
|
Designation
|
REMIC
I
Remittance
Rate
|
Initial
Uncertificated
Balance
|
Latest
Possible
Maturity
Date(1)
|
||||
|
A-I
|
Variable(2)
|
$
|
59,074,032.74
|
September
2035
|
|||
|
I-1-A
|
Variable(2)
|
$
|
10,998,933.50
|
September
2035
|
|||
|
I-1-B
|
Variable(2)
|
$
|
10,998,933.50
|
September
2035
|
|||
|
I-2-A
|
Variable(2)
|
$
|
10,332,910.50
|
September
2035
|
|||
|
I-2-B
|
Variable(2)
|
$
|
10,332,910.50
|
September
2035
|
|||
|
I-3-A
|
Variable(2)
|
$
|
9,707,180.00
|
September
2035
|
|||
|
I-3-B
|
Variable(2)
|
$
|
9,707,180.00
|
September
2035
|
|||
|
I-4-A
|
Variable(2)
|
$
|
9,119,306.50
|
September
2035
|
|||
|
I-4-B
|
Variable(2)
|
$
|
9,119,306.50
|
September
2035
|
|||
|
I-5-A
|
Variable(2)
|
$
|
8,567,001.00
|
September
2035
|
|||
|
I-5-B
|
Variable(2)
|
$
|
8,567,001.00
|
September
2035
|
|||
|
I-6-A
|
Variable(2)
|
$
|
8,048,113.00
|
September
2035
|
|||
|
I-6-B
|
Variable(2)
|
$
|
8,048,113.00
|
September
2035
|
|||
|
I-7-A
|
Variable(2)
|
$
|
7,560,623.50
|
September
2035
|
|||
|
I-7-B
|
Variable(2)
|
$
|
7,560,623.50
|
September
2035
|
|||
|
I-8-A
|
Variable(2)
|
$
|
7,102,632.50
|
September
2035
|
|||
|
I-8-B
|
Variable(2)
|
$
|
7,102,632.50
|
September
2035
|
|||
|
I-9-A
|
Variable(2)
|
$
|
6,672,358.00
|
September
2035
|
|||
|
I-9-B
|
Variable(2)
|
$
|
6,672,358.00
|
September
2035
|
|||
|
I-10-A
|
Variable(2)
|
$
|
6,268,122.50
|
September
2035
|
|||
|
I-10-B
|
Variable(2)
|
$
|
6,268,122.50
|
September
2035
|
|||
|
I-11-A
|
Variable(2)
|
$
|
5,888,353.50
|
September
2035
|
|||
|
I-11-B
|
Variable(2)
|
$
|
5,888,353.50
|
September
2035
|
|||
|
I-12-A
|
Variable(2)
|
$
|
5,531,569.50
|
September
2035
|
|||
|
I-12-B
|
Variable(2)
|
$
|
5,531,569.50
|
September
2035
|
|||
|
I-13-A
|
Variable(2)
|
$
|
5,196,382.00
|
September
2035
|
|||
|
I-13-B
|
Variable(2)
|
$
|
5,196,382.00
|
September
2035
|
|||
|
I-14-A
|
Variable(2)
|
$
|
4,881,484.00
|
September
2035
|
|||
|
I-14-B
|
Variable(2)
|
$
|
4,881,484.00
|
September
2035
|
|||
|
I-15-A
|
Variable(2)
|
$
|
4,585,649.00
|
September
2035
|
|||
|
I-15-B
|
Variable(2)
|
$
|
4,585,649.00
|
September
2035
|
|||
|
I-16-A
|
Variable(2)
|
$
|
4,307,723.00
|
September
2035
|
|||
|
I-16-B
|
Variable(2)
|
$
|
4,307,723.00
|
September
2035
|
|||
|
I-17-A
|
Variable(2)
|
$
|
4,046,624.50
|
September
2035
|
|||
|
I-17-B
|
Variable(2)
|
$
|
4,046,624.50
|
September
2035
|
|||
|
I-18-A
|
Variable(2)
|
$
|
3,801,334.00
|
September
2035
|
|||
|
I-18-B
|
Variable(2)
|
$
|
3,801,334.00
|
September
2035
|
|||
|
I-19-A
|
Variable(2)
|
$
|
3,570,896.00
|
September
2035
|
|||
|
I-19-B
|
Variable(2)
|
$
|
3,570,896.00
|
September
2035
|
|||
|
I-20-A
|
Variable(2)
|
$
|
3,354,412.00
|
September
2035
|
|||
|
I-20-B
|
Variable(2)
|
$
|
3,354,412.00
|
September
2035
|
|||
|
I-21-A
|
Variable(2)
|
$
|
3,151,038.00
|
September
2035
|
|||
|
I-21-B
|
Variable(2)
|
$
|
3,151,038.00
|
September
2035
|
|||
|
I-22-A
|
Variable(2)
|
$
|
2,959,980.50
|
September
2035
|
|||
|
I-22-B
|
Variable(2)
|
$
|
2,959,980.50
|
September
2035
|
|||
|
I-23-A
|
Variable(2)
|
$
|
2,780,494.00
|
September
2035
|
|||
|
I-23-B
|
Variable(2)
|
$
|
2,780,494.00
|
September
2035
|
|||
|
I-24-A
|
Variable(2)
|
$
|
2,611,879.00
|
September
2035
|
|||
|
I-24-B
|
Variable(2)
|
$
|
2,611,879.00
|
September
2035
|
|||
|
I-25-A
|
Variable(2)
|
$
|
2,453,477.50
|
September
2035
|
|||
|
I-25-B
|
Variable(2)
|
$
|
2,453,477.50
|
September
2035
|
|||
|
I-26-A
|
Variable(2)
|
$
|
2,304,671.50
|
September
2035
|
|||
|
I-26-B
|
Variable(2)
|
$
|
2,304,671.50
|
September
2035
|
|||
|
I-27-A
|
Variable(2)
|
$
|
2,164,879.50
|
September
2035
|
|||
|
I-27-B
|
Variable(2)
|
$
|
2,164,879.50
|
September
2035
|
|||
|
I-28-A
|
Variable(2)
|
$
|
2,033,558.00
|
September
2035
|
|||
|
I-28-B
|
Variable(2)
|
$
|
2,033,558.00
|
September
2035
|
|||
|
I-29-A
|
Variable(2)
|
$
|
1,910,191.50
|
September
2035
|
|||
|
I-29-B
|
Variable(2)
|
$
|
1,910,191.50
|
September
2035
|
|||
|
I-30-A
|
Variable(2)
|
$
|
1,794,301.00
|
September
2035
|
|||
|
I-30-B
|
Variable(2)
|
$
|
1,794,301.00
|
September
2035
|
|||
|
I-31-A
|
Variable(2)
|
$
|
1,685,432.50
|
September
2035
|
|||
|
I-31-B
|
Variable(2)
|
$
|
1,685,432.50
|
September
2035
|
|||
|
I-32-A
|
Variable(2)
|
$
|
1,583,162.00
|
September
2035
|
|||
|
I-32-B
|
Variable(2)
|
$
|
1,583,162.00
|
September
2035
|
|||
|
I-33-A
|
Variable(2)
|
$
|
1,487,089.00
|
September
2035
|
|||
|
I-33-B
|
Variable(2)
|
$
|
1,487,089.00
|
September
2035
|
|||
|
I-34-A
|
Variable(2)
|
$
|
1,396,839.00
|
September
2035
|
|||
|
I-34-B
|
Variable(2)
|
$
|
1,396,839.00
|
September
2035
|
|||
|
I-35-A
|
Variable(2)
|
$
|
1,312,059.00
|
September
2035
|
|||
|
I-35-B
|
Variable(2)
|
$
|
1,312,059.00
|
September
2035
|
|||
|
I-36-A
|
Variable(2)
|
$
|
1,232,419.00
|
September
2035
|
|||
|
I-36-B
|
Variable(2)
|
$
|
1,232,419.00
|
September
2035
|
|||
|
I-37-A
|
Variable(2)
|
$
|
1,157,605.50
|
September
2035
|
|||
|
I-37-B
|
Variable(2)
|
$
|
1,157,605.50
|
September
2035
|
|||
|
I-38-A
|
Variable(2)
|
$
|
1,087,328.50
|
September
2035
|
|||
|
I-38-B
|
Variable(2)
|
$
|
1,087,328.50
|
September
2035
|
|||
|
I-39-A
|
Variable(2)
|
$
|
1,021,312.00
|
September
2035
|
|||
|
I-39-B
|
Variable(2)
|
$
|
1,021,312.00
|
September
2035
|
|||
|
I-40-A
|
Variable(2)
|
$
|
959,298.50
|
September
2035
|
|||
|
I-40-B
|
Variable(2)
|
$
|
959,298.50
|
September
2035
|
|||
|
I-41-A
|
Variable(2)
|
$
|
901,045.50
|
September
2035
|
|||
|
I-41-B
|
Variable(2)
|
$
|
901,045.50
|
September
2035
|
|||
|
I-42-A
|
Variable(2)
|
$
|
846,325.00
|
September
2035
|
|||
|
I-42-B
|
Variable(2)
|
$
|
846,325.00
|
September
2035
|
|||
|
I-43-A
|
Variable(2)
|
$
|
794,923.00
|
September
2035
|
|||
|
I-43-B
|
Variable(2)
|
$
|
794,923.00
|
September
2035
|
|||
|
I-44-A
|
Variable(2)
|
$
|
746,638.50
|
September
2035
|
|||
|
I-44-B
|
Variable(2)
|
$
|
746,638.50
|
September
2035
|
|||
|
I-45-A
|
Variable(2)
|
$
|
701,283.50
|
September
2035
|
|||
|
I-45-B
|
Variable(2)
|
$
|
701,283.50
|
September
2035
|
|||
|
I-46-A
|
Variable(2)
|
$
|
658,679.00
|
September
2035
|
|||
|
I-46-B
|
Variable(2)
|
$
|
658,679.00
|
September
2035
|
|||
|
I-47-A
|
Variable(2)
|
$
|
618,659.50
|
September
2035
|
|||
|
I-47-B
|
Variable(2)
|
$
|
618,659.50
|
September
2035
|
|||
|
I-48-A
|
Variable(2)
|
$
|
581,067.50
|
September
2035
|
|||
|
I-48-B
|
Variable(2)
|
$
|
581,067.50
|
September
2035
|
|||
|
I-49-A
|
Variable(2)
|
$
|
545,757.00
|
September
2035
|
|||
|
I-49-B
|
Variable(2)
|
$
|
545,757.00
|
September
2035
|
|||
|
I-50-A
|
Variable(2)
|
$
|
512,589.00
|
September
2035
|
|||
|
I-50-B
|
Variable(2)
|
$
|
512,589.00
|
September
2035
|
|||
|
I-51-A
|
Variable(2)
|
$
|
481,426.50
|
September
2035
|
|||
|
I-51-B
|
Variable(2)
|
$
|
481,426.50
|
September
2035
|
|||
|
I-52-A
|
Variable(2)
|
$
|
452,163.00
|
September
2035
|
|||
|
I-52-B
|
Variable(2)
|
$
|
452,163.00
|
September
2035
|
|||
|
I-53-A
|
Variable(2)
|
$
|
424,675.50
|
September
2035
|
|||
|
I-53-B
|
Variable(2)
|
$
|
424,675.50
|
September
2035
|
|||
|
I-54-A
|
Variable(2)
|
$
|
398,856.00
|
September
2035
|
|||
|
I-54-B
|
Variable(2)
|
$
|
398,856.00
|
September
2035
|
|||
|
I-55-A
|
Variable(2)
|
$
|
374,604.50
|
September
2035
|
|||
|
I-55-B
|
Variable(2)
|
$
|
374,604.50
|
September
2035
|
|||
|
I-56-A
|
Variable(2)
|
$
|
351,825.50
|
September
2035
|
|||
|
I-56-B
|
Variable(2)
|
$
|
351,825.50
|
September
2035
|
|||
|
I-57-A
|
Variable(2)
|
$
|
330,428.50
|
September
2035
|
|||
|
I-57-B
|
Variable(2)
|
$
|
330,428.50
|
September
2035
|
|||
|
I-58-A
|
Variable(2)
|
$
|
310,331.50
|
September
2035
|
|||
|
I-58-B
|
Variable(2)
|
$
|
310,331.50
|
September
2035
|
|||
|
I-59-A
|
Variable(2)
|
$
|
291,454.50
|
September
2035
|
|||
|
I-59-B
|
Variable(2)
|
$
|
291,454.50
|
September
2035
|
|||
|
I-60-A
|
Variable(2)
|
$
|
273,724.50
|
September
2035
|
|||
|
I-60-B
|
Variable(2)
|
$
|
273,724.50
|
September
2035
|
|||
|
I-61-A
|
Variable(2)
|
$
|
257,070.50
|
September
2035
|
|||
|
I-61-B
|
Variable(2)
|
$
|
257,070.50
|
September
2035
|
|||
|
I-62-A
|
Variable(2)
|
$
|
241,429.00
|
September
2035
|
|||
|
I-62-B
|
Variable(2)
|
$
|
241,429.00
|
September
2035
|
|||
|
I-63-A
|
Variable(2)
|
$
|
3,718,091.50
|
September
2035
|
|||
|
I-63-B
|
Variable(2)
|
$
|
3,718,091.50
|
September
2035
|
|||
|
I-CE-2
|
Variable(2)
|
$
|
N/A(3)
|
September
2035
|
|||
|
II-CE-2
|
Variable(2)
|
$
|
N/A(3)
|
September
2035
|
|||
________________
|
(1)
|
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the Distribution Date immediately following the maturity date for
the
Mortgage Loan with the latest maturity date has been designated as
the
“latest possible maturity date” for each REMIC I Regular
Interest.
|
|
(2)
|
Calculated
in accordance with the definition of “REMIC I Remittance Rate”
herein.
|
|
(3)
|
REMIC
I Regular Interest I-CE-2 and REMIC I Regular Interest II-CE-2 will
not
have an Uncertificated Balance, but will accrue interest on their
Notional
Amount described in accordance with the definition of “Notional Amount”
herein.
|
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-II Interest will evidence the sole class of “residual interests” in
REMIC II for purposes of the REMIC Provisions. The following table irrevocably
sets forth the designation, the REMIC II Remittance Rate, the initial aggregate
Uncertificated Balance and, for purposes of satisfying Treasury regulation
Section 1.860G-1(a)(4)(iii), the “latest possible maturity date” for each
of the REMIC II Regular Interests. None of the REMIC II Regular Interests will
be certificated.
|
Designation
|
REMIC
II
Remittance
Rate
|
Initial
Uncertificated
Balance
|
Latest
Possible
Maturity
Date (1)
|
|||||
|
AA
|
Variable(2)
|
$
|
413,518,132.19
|
September
2035
|
||||
|
A
|
Variable(2)
|
$
|
2,879,860.00
|
September
2035
|
||||
|
M-1A
|
Variable(2)
|
$
|
84,600.00
|
September
2035
|
||||
|
M-1B
|
Variable(2)
|
$
|
162,240.00
|
September
2035
|
||||
|
M-2
|
Variable(2)
|
$
|
185,660.00
|
September
2035
|
||||
|
M-3
|
Variable(2)
|
$
|
109,710.00
|
September
2035
|
||||
|
M-4
|
Variable(2)
|
$
|
88,610.00
|
September
2035
|
||||
|
M-5
|
Variable(2)
|
$
|
92,830.00
|
September
2035
|
||||
|
M-6
|
Variable(2)
|
$
|
88,610.00
|
September
2035
|
||||
|
M-7
|
Variable(2)
|
$
|
88,610.00
|
September
2035
|
||||
|
M-8
|
Variable(2)
|
$
|
84,390.00
|
September
2035
|
||||
|
M-9
|
Variable(2)
|
$
|
71,730.00
|
September
2035
|
||||
|
B-1
|
Variable(2)
|
$
|
84,390.00
|
September
2035
|
||||
|
ZZ
|
Variable(2)
|
$
|
4,417,905.55
|
September
2035
|
||||
|
P
|
0.00%
|
|
$
|
100.00
|
September
2035
|
|||
|
IO
|
Variable(2)
|
N/A(3)
|
September
2035
|
|||||
|
CE-2
|
(5)
|
N/A(4)
|
September
2035
|
|||||
_________________________
| (1) |
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the
Distribution Date immediately following the maturity date for the
Mortgage
Loan with the latest maturity date has been designated as the “latest
possible maturity date” for each REMIC II Regular
Interest.
|
| (2) |
Calculated
in accordance with the definition of “REMIC II Remittance Rate”
herein.
|
| (3) |
REMIC
II Regular Interest IO will not have an Uncertificated Balance, but
will
accrue interest on its Notional
Amount.
|
| (4) |
For
federal income tax purposes, the REMIC II Regular Interest CE-2 will
not
have an Uncertificated Balance, but will have a Notional Amount equal
to
the aggregate Notional Amount of each of REMIC I Regular Interest
I-CE-2
and REMIC I Regular Interest
II-CE-2.
|
| (5) |
REMIC
II Regular Interest CE-2 will not have an REMIC II Remittance Rate,
but
will be entitled to 100% of the amounts distributed on REMIC I Regular
Interest I-CE-2 and REMIC I Regular Interest
II-CE-2.
|
REMIC
III
As
provided herein, the Trustee will elect to treat the segregated pool of assets
consisting of the REMIC II Regular Interests as a REMIC for federal income
tax
purposes, and such segregated pool of assets will be designated as “REMIC III.”
The Class R-III Interest will evidence the sole class of “residual interests” in
REMIC III for purposes of the REMIC Provisions. The following table irrevocably
sets forth the designation, the Pass-Through Rate, the initial aggregate
Certificate Principal Balance and, for purposes of satisfying Treasury
regulation Section 1.860G-1(a)(4)(iii), the “latest possible maturity date”
for the indicated Classes of Certificates.
|
Designation
|
Pass-Through
Rate
|
Initial
Aggregate Certificate Principal Balance
|
Latest
Possible
Maturity
Date (1)
|
||||
|
Class
A
|
Variable(2)
|
$
|
287,986,000.00
|
September
2035
|
|||
|
Class
M-1A
|
Fixed(2)
|
$
|
8,460,000.00
|
September
2035
|
|||
|
Class
M-1B
|
Variable(2)
|
$
|
16,224,000.00
|
September
2035
|
|||
|
Class
M-2
|
Fixed(2)
|
$
|
18,566,000.00
|
September
2035
|
|||
|
Class
M-3
|
Fixed(2)
|
$
|
10,971,000.00
|
September
2035
|
|||
|
Class
M-4
|
Variable
(2)
|
$
|
8,861,000.00
|
September
2035
|
|||
|
Class
M-5
|
Variable(2)
|
$
|
9,283,000.00
|
September
2035
|
|||
|
Class
M-6
|
Variable(2)
|
$
|
8,861,000.00
|
September
2035
|
|||
|
Class
M-7
|
Variable(2)
|
$
|
8,861,000.00
|
September
2035
|
|||
|
Class
M-8
|
Variable(2)
|
$
|
8,439,000.00
|
September
2035
|
|||
|
Class
M-9
|
Variable(2)
|
$
|
7,173,000.00
|
September
2035
|
|||
|
Class
B-1
|
Variable(2)
|
$
|
8,439,000.00
|
September
2035
|
|||
|
Class
P
|
N/A(3)
|
$
|
100.00
|
September
2035
|
|||
|
Class
CE-1
|
N/A(4)
|
$
|
19,833,277.74
|
September
2035
|
|||
|
Class
CE-2
|
N/A(5)
|
N/A(6)
|
September
2035
|
||||
|
Class
IO Interest
|
N/A(7)
|
N/A(7)
|
September
2035
|
||||
_________________
| (1) |
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the Distribution Date immediately following the maturity date for
the
Mortgage Loan with the latest maturity date has been designated as
the
“latest possible maturity date” for each Class of
Certificates.
|
| (2) |
Calculated
in accordance with the definition of “Pass-Through Rate”
herein.
|
| (3) |
The
Class P Certificates will not accrue
interest.
|
| (4) |
The
Class CE-1 Certificates will accrue interest at their variable
Pass-Through Rate on the Notional Amount of the Class CE-1 Certificates
outstanding from time to time which shall equal the Uncertificated
Balance
of the REMIC II Regular Interests (other than REMIC II Regular Interest
P). The Class CE-1 Certificates will not accrue interest on their
Certificate Principal Balance.
|
| (5) |
The
Class CE-2 Certificates are an interest only class and for each
Distribution Date the Class CE-2 Certificates will be entitled to
receive
100% of the amounts distributed on REMIC II Regular Interest
CE-2.
|
| (6) |
For
federal income tax purposes, the Class CE-2 Certificates will not
have a
Certificate Principal Balance, but will have a Notional Amount equal
to
the Notional Amount of REMIC II Regular Interest
CE-2.
|
| (7) |
The
Class IO Interest will not have a Pass-Through Rate or a Certificate
Principal Balance, but will be entitled to 100% of amounts distributed
on
REMIC II Regular Interest IO.
|
The
Mortgage Loans had an aggregate Scheduled Principal Balance as of the Cut-off
Date, after deducting all Monthly Payments due on or before the Cut-off Date,
of
$421,957,377.74.
In
consideration of the mutual agreements herein contained, the Depositor, the
Servicers, the Master Servicer, the Securities Administrator and the Trustee
agree as follows:
ARTICLE
I
DEFINITIONS
SECTION
1.01. Defined
Terms.
Whenever
used in this Agreement, including, without limitation, in the Preliminary
Statement hereto, the following words and phrases, unless the context otherwise
requires, shall have the meanings specified in this Article. Unless otherwise
specified, all calculations described herein shall be made on the basis of
a
360-day year consisting of twelve 30-day months.
“Accepted
Master Servicing Practices”:
With
respect to any Mortgage Loan, as applicable, either (x) those customary mortgage
master servicing practices of prudent mortgage servicing institutions that
master service mortgage loans of the same type and quality as such Mortgage
Loan
in the jurisdiction where the related Mortgaged Property is located, to the
extent applicable to the Master Servicer (except in its capacity as successor
to
any Servicer), or (y) as provided in Section 3.01 hereof, but in no event
below the standard set forth in clause (x).
“Accepted
Servicing Practices”:
As
defined in Section 3.01.
“Account”:
The
Collection Accounts and the Distribution Account, as the context may
require.
“Accrued
Certificate Interest”:
With
respect to any Class A Certificate, Mezzanine Certificate, Class B-1
Certificate, Class CE-1 Certificate or Class CE-2 Certificate and each
Distribution Date, interest accrued during the related Interest Accrual Period
at the Pass-Through Rate for such Certificate for such Distribution Date on
the
Certificate Principal Balance, in the case of the Class A Certificates, the
Mezzanine Certificates and the Class B-1 Certificates, or on the Notional Amount
in the case of the Class CE-1 Certificates and Class CE-2 Certificates, of
such
Certificate immediately prior to such Distribution Date. The Class P
Certificates are not entitled to distributions in respect of interest and,
accordingly, will not accrue interest. All distributions of interest on the
Floating Rate Certificates will be calculated on the basis of a 360-day year
and
the actual number of days in the applicable Interest Accrual Period. All
distributions of interest on the Fixed Rate Certificates and the Class CE-1
and
Class CE-2 Certificates will be based on a 360-day year consisting of twelve
30-day months. Accrued Certificate Interest with respect to each Distribution
Date, as to any Class A Certificate, Mezzanine Certificate, Class B-1
Certificate or Class CE-1 Certificate shall be reduced by an amount equal to
the
portion allocable to such Certificate pursuant to Section 1.02 hereof, if
any, of the sum of (a) the aggregate Prepayment Interest Shortfall, if any,
for
such Distribution Date to the extent not covered by payments pursuant to
Section 3.22 or Section 4.18 of this Agreement and (b) the aggregate
amount of any Relief Act Interest Shortfall, if any, for such Distribution
Date.
In addition, Accrued Certificate Interest with respect to each Distribution
Date, as to any Class CE-1 Certificate, shall be reduced by an amount equal
to
the portion allocable to such Class CE-1 Certificate of Realized Losses, if
any,
pursuant to Section 1.02 and Section 5.04 hereof.
“Additional
Form 10-D Disclosure”:
Has
the meaning set forth in Section 5.06(a) of this Agreement.
“Additional
Form 10-K Disclosure”:
Has
the meaning set forth in Section 5.06(d) of this Agreement.
“Additional
Servicer”:
Means
each affiliate of the Servicer that Services any of the Mortgage Loans and
each
Person who is not an affiliate of the Servicer, who Services 10% or more of
the
Mortgage Loans. For clarification purposes, the Master Servicer and the
Securities Administrator are Additional Servicers.
“Administration
Fees”:
The
sum of (i) the Servicing Fees, (ii) the Master Servicing Fee and (iii) the
Credit Risk Management Fee.
“Administration
Fee Rate”:
The
sum of (i) the Servicing Fee Rate, (ii) the Master Servicing Fee Rate and (iii)
the Credit Risk Management Fee Rate.
“Advance
Facility”:
As
defined in Section 3.25(a).
“Advance
Financing Person”:
As
defined in Section 3.25(a).
“Advance
Reimbursement Amounts”:
As
defined in Section 3.25(b).
“Affiliate”:
With
respect to any specified Person, any other Person controlling or controlled
by
or under common control with such specified Person. For the purposes of this
definition, “control” when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract
or
otherwise, and the terms “controlling” and “controlled” have meanings
correlative to the foregoing.
“Aggregate
Loss Severity Percentage”:
With
respect to any Distribution Date, the percentage equivalent of a fraction,
the
numerator of which is the aggregate amount of Realized Losses incurred on any
Mortgage Loans from the Cut-off Date to the last day of the preceding calendar
month and the denominator of which is the aggregate principal balance of such
Mortgage Loans immediately prior to the liquidation of such Mortgage
Loans.
“Agreement”:
This
Pooling and Servicing Agreement, including all exhibits and schedules hereto
and
all amendments hereof and supplements hereto.
“Allocated
Realized Loss Amount”:
With
respect to any Class of Mezzanine Certificates or Class B-1 Certificates and
any
Distribution Date, an amount equal to the sum of any Realized Loss allocated
to
that Class of Certificates on the Distribution Date and any Allocated Realized
Loss Amount for that Class remaining unpaid from the previous Distribution
Date.
“Amounts
Held for Future Distribution”:
As to
any Distribution Date, the aggregate amount held in the Collection Accounts
at
the close of business on the immediately preceding Determination Date on account
of (i) all Monthly Payments or portions thereof received in respect of the
Mortgage Loans due after the related Due Period and (ii) Principal Prepayments
and Liquidation Proceeds received in respect of the Mortgage Loans after the
last day of the related Prepayment Period.
“Ancillary
Income”:
All
income derived from the Mortgage Loans, other than Servicing Fees and Prepayment
Charges, including but not limited to, late charges, fees received with respect
to checks or bank drafts returned by the related bank for non-sufficient funds,
assumption fees, optional insurance administrative fees and all other incidental
fees and charges.
“Annual
Statement of Compliance”:
As
defined in Section 3.17.
“Assignment”:
An
assignment of Mortgage, notice of transfer or equivalent instrument, in
recordable form, which is sufficient under the laws of the jurisdiction where
the related Mortgaged Property is located to reflect of record the sale and
assignment of the Mortgage, which assignment, notice of transfer or equivalent
instrument may be in the form of one or more blanket assignments covering
Mortgages secured by Mortgaged Properties located in the same county, if
permitted by law.
“Authorized
Officers”:
A
managing director of the whole loan trading desk and a managing director in
global markets.
“Available
Distribution Amount”:
With
respect to any Distribution Date, an amount equal to (1) the sum of (a) the
aggregate of the amounts on deposit in the Collection Accounts and Distribution
Account as of the close of business on the related Servicer Remittance Date,
(b)
the aggregate of any amounts deposited in the Distribution Account by the
Servicers or the Master Servicer in respect of Prepayment Interest Shortfalls
for such Distribution Date pursuant to Section 3.22 or Section 4.18 of
this Agreement, (c) the aggregate of any P&I Advances for such Distribution
Date made by the Servicers pursuant to Section 5.03 of this Agreement and
(d) the aggregate of any P&I Advances made by a successor Servicer
(including the Master Servicer) for such Distribution Date pursuant to
Section 8.02 of this Agreement, reduced (to an amount not less than zero)
by (2) the portion of the amount described in clause (1)(a) above that
represents (i) Amounts Held for Future Distribution, (ii) Principal Prepayments
on the Mortgage Loans received after the related Prepayment Period (together
with any interest payments received with such Principal Prepayments to the
extent they represent the payment of interest accrued on the Mortgage Loans
during a period subsequent to the related Prepayment Period), (iii) Liquidation
Proceeds, Insurance Proceeds and Subsequent Recoveries received in respect
of
the Mortgage Loans after the related Prepayment Period, (iv) amounts
reimbursable or payable to the Depositor, the Servicers, the Trustee, the Master
Servicer, the Securities Administrator or the Custodians pursuant to
Section 3.09 or 9.05 of this Agreement or otherwise payable in respect of
Extraordinary Trust Fund Expenses, (v) the Credit Risk Management Fee, (vi)
amounts deposited in a Collection Account or the Distribution Account in error,
(vii) the amount of any Prepayment Charges collected by a Servicer in connection
with the Principal Prepayment of any of the Mortgage Loans and (viii) amounts
reimbursable to a successor Servicer (including the Master Servicer) pursuant
to
Section 8.02 of this Agreement.
“Balloon
Mortgage Loan”:
A
Mortgage Loan that provides for the payment of the unamortized principal balance
of such Mortgage Loan in a single payment, that is substantially greater than
the preceding monthly payment at the maturity of such Mortgage
Loan.
“Balloon
Payment”:
A
payment of the unamortized principal balance of a Mortgage Loan in a single
payment, that is substantially greater than the preceding Monthly Payment at
the
maturity of such Mortgage Loan.
“Bankruptcy
Code”:
The
Bankruptcy Reform Act of 1978 (Title 11 of the United States Code), as
amended.
“Book-Entry
Certificates”:
The
Offered Certificates and Class B-1 Certificates for so long as the Certificates
of such Class shall be registered in the name of the Depository or its
nominee.
“Book-Entry
Custodian”:
The
custodian appointed pursuant to Section 6.01.
“Business
Day”:
Any
day other than a Saturday, a Sunday or a day on which banking or savings and
loan institutions in the States of New York, California, Florida, Maryland,
Minnesota, Texas or in the city in which the Corporate Trust Office of the
Trustee is located, are authorized or obligated by law or executive order to
be
closed.
“Cash-Out
Refinancing”:
A
Refinanced Mortgage Loan the proceeds of which are more than a nominal amount
in
excess of the principal balance of any existing first mortgage plus any
subordinate mortgage on the related Mortgaged Property and related closing
costs.
“Certificate”:
Any
one of ACE Securities Corp., Asset Backed Pass-Through Certificates, Series
2006-SL1, Class A, Class M-1A, Class M-1B, Class M-2, Class M-3, Class M-4,
Class M-5, Class M-6, Class M-7, Class M-8, Class M-9, Class B-1, Class P,
Class
CE-1, Class CE-2 and Class R Certificates issued under this Agreement.
“Certificate
Factor”:
With
respect to any Class of Certificates (other than the Residual Certificates)
as
of any Distribution Date, a fraction, expressed as a decimal carried to six
places, the numerator of which is the aggregate Certificate Principal Balance
(or Notional Amount, in the case of the Class CE-1 Certificates and Class CE-2
Certificates) of such Class of Certificates on such Distribution Date (after
giving effect to any distributions of principal and allocations of Realized
Losses resulting in reduction of the Certificate Principal Balance (or Notional
Amount, in the case of the Class CE-1 Certificates and Class CE-2 Certificates)
of such Class of Certificates to be made on such Distribution Date), and the
denominator of which is the initial aggregate Certificate Principal Balance
(or
Notional Amount, in the case of the Class CE-1 Certificates and Class CE-2
Certificates) of such Class of Certificates as of the Closing Date.
“Certificate
Margin”:
With
respect to the Class A Certificates and, for purposes of the definition of
“Marker Rate”, REMIC II Regular Interest A, 0.160% in the case of each
Distribution Date through and including the Optional Termination Date and 0.320%
in the case of each Distribution Date thereafter.
With
respect to the Class M-1B Certificates and, for purposes of the definition
of
“Marker Rate”, REMIC II Regular Interest M-1B, 0.420% in the case of each
Distribution Date through and including the Optional Termination Date and 0.630%
in the case of each Distribution Date thereafter.
With
respect to the Class M-4 Certificates and, for purposes of the definition of
“Marker Rate”, REMIC II Regular Interest M-4, 0.600% in the case of each
Distribution Date through and including the Optional Termination Date and 0.900%
in the case of each Distribution Date thereafter.
With
respect to the Class M-5 Certificates and, for purposes of the definition of
“Marker Rate”, REMIC II Regular Interest M-5, 0.670% in the case of each
Distribution Date through and including the Optional Termination Date and 1.005%
in the case of each Distribution Date thereafter.
With
respect to the Class M-6 Certificates and, for purposes of the definition of
“Marker Rate”, REMIC II Regular Interest M-6, 0.750% in the case of each
Distribution Date through and including the Optional Termination Date and 1.125%
in the case of each Distribution Date thereafter.
With
respect to the Class M-7 Certificates and, for purposes of the definition of
“Marker Rate”, REMIC II Regular Interest M-7, 1.600% in the case of each
Distribution Date through and including the Optional Termination Date and 2.100%
in the case of each Distribution Date thereafter.
With
respect to the Class M-8 Certificates and, for purposes of the definition of
“Marker Rate”, REMIC II Regular Interest M-8, 2.050% in the case of each
Distribution Date through and including the Optional Termination Date and 2.550%
in the case of each Distribution Date thereafter.
With
respect to the Class M-9 Certificates and, for purposes of the definition of
“Marker Rate”, REMIC II Regular Interest M-9, 2.850% in the case of each
Distribution Date through and including the Optional Termination Date and 3.350%
in the case of each Distribution Date thereafter.
With
respect to the Class B-1 Certificates and, for purposes of the definition of
“Marker Rate”, REMIC II Regular Interest B-1, 3.000% in the case of each
Distribution Date through and including the Optional Termination Date and 3.500%
in the case of each Distribution Date thereafter.
“Certificateholder”
or
“Holder”:
The
Person in whose name a Certificate is registered in the Certificate Register,
except that a Disqualified Organization or a Non-United States Person shall
not
be a Holder of a Residual Certificate for any purposes hereof, and solely for
the purposes of giving any consent pursuant to this Agreement, any Certificate
registered in the name of or beneficially owned by the Depositor, the Sponsor,
a
Servicer, the Master Servicer, the Securities Administrator, the Trustee or
any
Affiliate thereof shall be deemed not to be outstanding and the Voting Rights
to
which it is entitled shall not be taken into account in determining whether
the
requisite percentage of Voting Rights necessary to effect any such consent
has
been obtained, except as otherwise provided in Section 12.01. The Trustee
and the Securities Administrator may conclusively rely upon a certificate of
the
Depositor, the Sponsor, the Master Servicer, the Securities Administrator or
a
Servicer in determining whether a Certificate is held by an Affiliate thereof.
All references herein to “Holders” or “Certificateholders” shall reflect the
rights of Certificate Owners as they may indirectly exercise such rights through
the Depository and participating members thereof, except as otherwise specified
herein; provided, however, that the Trustee and the Securities Administrator
shall be required to recognize as a “Holder” or “Certificateholder” only the
Person in whose name a Certificate is registered in the Certificate
Register.
“Certificate
Owner”:
With
respect to a Book-Entry Certificate, the Person who is the beneficial owner
of
such Certificate as reflected on the books of the Depository or on the books
of
a Depository Participant or on the books of an indirect participating brokerage
firm for which a Depository Participant acts as agent.
“Certificate
Principal Balance”:
With
respect to each Class A Certificate, Mezzanine Certificate, Class B-1
Certificate or Class P Certificate as of any date of determination, the
Certificate Principal Balance of such Certificate on the Distribution Date
immediately prior to such date of determination plus any Subsequent Recoveries
added to the Certificate Principal Balance of such Certificate pursuant to
Section 5.04 of this Agreement, minus all distributions allocable to
principal made thereon and Realized Losses allocated thereto, if any, on such
immediately prior Distribution Date (or, in the case of any date of
determination up to and including the first Distribution Date, the initial
Certificate Principal Balance of such Certificate, as stated on the face
thereof). With respect to each Class CE-1 Certificate as of any date of
determination, an amount equal to the Percentage Interest evidenced by such
Certificate times the excess, if any, of (A) the then aggregate Uncertificated
Balances of the REMIC II Regular Interests over (B) the then aggregate
Certificate Principal Balances of the Class A Certificates, the Mezzanine
Certificates, the Class B-1 Certificates and the Class P Certificates then
outstanding. The aggregate initial Certificate Principal Balance of each Class
of Regular Certificates is set forth in the Preliminary Statement
hereto.
“Certificate
Register”:
The
register maintained pursuant to Section 6.02 of this
Agreement.
“Certification
Parties”:
Has
the meaning set forth in Section 3.19 of this Agreement.
“Certifying
Person”:
Has
the meaning set forth in Section 3.19 of this Agreement.
“Charged
Off Loan”:
With
respect to any Distribution Date, a defaulted Mortgage Loan that the related
Servicer is required to charge off once such Mortgage Loan becomes 180 days
delinquent pursuant to Section 3.13, provided that such Mortgage Loan is not
a
Liquidated Mortgage Loan and provided further, that the related Servicer has
determined, based on a broker’s price opinion and other relevant considerations,
that there will be (i) no Significant Subsequent Recoveries with respect to
such
Mortgage Loan or (ii) the potential Subsequent Recoveries are anticipated to
be
an amount, determined by the related Servicer in its good faith judgment and
in
light of other mitigating circumstances, that is insufficient to warrant
proceeding through foreclosure or other liquidation of the related Mortgaged
Property.
“Class”:
Collectively, all of the Certificates bearing the same class
designation.
“Class
A Certificate”:
Any
one of the Class A Certificates executed and authenticated by the Securities
Administrator and delivered by the Trustee, substantially in the form annexed
hereto as Exhibit A-1 and evidencing a Regular Interest in REMIC III for
purposes of the REMIC Provisions.
“Class
A Principal Distribution Amount”:
With
respect to any Distribution Date on or after the Stepdown Date and on which
a
Trigger Event is not in effect, the excess of (x) the Certificate Principal
Balance of the Class A Certificates immediately prior to such Distribution
Date
over (y) the lesser of (A) the product of (i) 28.30% and (ii) 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
(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) minus the product of (i) 0.50% and (ii) the aggregate principal balance
of the Mortgage Loans as of the Cut-off Date.
“Class
B-1 Certificate”:
Any
one of the Class B-1 Certificates executed and authenticated by the Securities
Administrator and delivered by the Trustee, substantially in the form annexed
hereto as Exhibit A-3 and evidencing a Regular Interest in REMIC III for
purposes of the REMIC Provisions.
“Class
B-1 Principal Distribution Amount”:
With
respect to any Distribution Date on or after the Stepdown Date and on which
a
Trigger Event is not in effect, the excess of (x) the sum of (i) the Certificate
Principal Balance of the Class A Certificates (after taking into account the
payment of the Class A Principal Distribution Amount on such Distribution Date),
(ii) the sum of the Certificate Principal Balances of the Class M-1A
Certificates and Class M-1B Certificates (after taking into account the payment
of the Class M-1 Principal Distribution Amount on such Distribution Date),
(iii)
the Certificate Principal Balance of the Class M-2 Certificates (after taking
into account the payment of the Class M-2 Principal Distribution Amount on
such
Distribution Date), (iv) the Certificate Principal Balance of the Class M-3
Certificates (after taking into account the payment of the Class M-3 Principal
Distribution Amount on such Distribution Date), (v) the Certificate Principal
Balance of the Class M-4 Certificates (after taking into account the payment
of
the Class M-4 Principal Distribution Amount on such Distribution Date), (vi)
the
Certificate Principal Balance of the Class M-5 Certificates (after taking into
account the payment of the Class M-5 Principal Distribution Amount on such
Distribution Date), (vii) the Certificate Principal Balance of the Class M-6
Certificates (after taking into account the payment of the Class M-6 Principal
Distribution Amount on such Distribution Date), (viii) the Certificate Principal
Balance of the Class M-7 Certificates (after taking into account the payment
of
the Class M-7 Principal Distribution Amount on such Distribution Date), (ix)
the
Certificate Principal Balance of the Class M-8 Certificates (after taking into
account the payment of the Class M-8 Principal Distribution Amount on such
Distribution Date), (x) the Certificate Principal Balance of the Class M-9
Certificates (after taking into account the payment of the Class M-9 Principal
Distribution Amount on such Distribution Date) and (xi) the Certificate
Principal Balance of the Class B-1 Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i) 82.40% and
(ii)
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 (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) minus the product of (i) 0.50% and (ii) the aggregate
principal balance of the Mortgage Loans as of the Cut-off Date.
“Class
CE-1 Certificate”:
Any
one of the Class CE-1 Certificates executed and authenticated by the Securities
Administrator and delivered by the Trustee, substantially in the form annexed
hereto as Exhibit A-4 and evidencing a Regular Interest in REMIC III for
purposes of the REMIC Provisions.
“Class
CE-2 Certificate”:
Any
one of the Class CE-2 Certificates executed and authenticated by the Securities
Administrator and delivered by the Trustee, substantially in the form annexed
hereto as Exhibit A-4 and evidencing a Regular Interest in REMIC III for
purposes of the REMIC Provisions.
“Class
IO Distribution Amount”:
As defined in Section 5.07(e) hereof. For
purposes of clarity, the Class IO Distribution Amount for any Distribution
Date
shall equal the amount payable to the Supplemental Interest Trust on such
Distribution Date in excess of the amount payable on the Class IO Interest
on
such Distribution Date, all as further provided in Section 5.07(e)
hereof.
“Class
IO Interest”:
An
uncertificated interest in the Trust Fund held by the Trustee, evidencing a
REMIC Regular Interest in REMIC III for purposes of the REMIC
Provisions.
“Class
M Certificates”:
The
Class M-1A, Class M-1B, Class M-2, Class M-3, Class M-4, Class M-5, Class M-6,
Class M-7, Class M-8 and Class M-9 Certificates.
“Class
M-1A Certificate”:
Any
one of the Class M-1A Certificates executed and authenticated by the Securities
Administrator and delivered by the Trustee, substantially in the form annexed
hereto as Exhibit A-2A and evidencing a Regular Interest in REMIC III for
purposes of the REMIC Provisions.
“Class
M-1B Certificate”:
Any
one of the Class M-1B Certificates executed and authenticated by the Securities
Administrator and delivered by the Trustee, substantially in the form annexed
hereto as Exhibit
A-2B
and
evidencing a Regular Interest in REMIC III for purposes of the REMIC
Provisions.
“Class
M-1 Principal Distribution Amount”:
With
respect to any Distribution Date on or after the Stepdown Date and on which
a
Trigger Event is not in effect, the excess of (x) the sum of (i) the Certificate
Principal Balance of the Class A Certificates (after taking into account the
payment of the Class A Principal Distribution Amount on such Distribution Date)
and (ii) the sum of the Certificate Principal Balances of the Class M-1A
Certificates and Class M-1B Certificates immediately prior to such Distribution
Date over (y) the lesser of (A) the product of (i) 40.00% and (ii) 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
(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) minus the product of (i) 0.50% and (ii) the aggregate principal balance
of the Mortgage Loans as of the Cut-off Date.
“Class
M-2 Certificate”:
Any
one of the Class M-2 Certificates executed and authenticated by the Securities
Administrator and delivered by the Trustee, substantially in the form annexed
hereto as Exhibit A-2A and evidencing a Regular Interest in REMIC III for
purposes of the REMIC Provisions.
“Class
M-2 Principal Distribution Amount”:
With
respect to any Distribution Date on or after the Stepdown Date and on which
a
Trigger Event is not in effect, the excess of (x) the sum of (i) the Certificate
Principal Balance of the Class A Certificates (after taking into account the
payment of the Class A Principal Distribution Amount on such Distribution Date),
(ii) the sum of the Certificate Principal Balances of the Class M-1A
Certificates and Class M-1B Certificates (after taking into account the payment
of the Class M-1 Principal Distribution Amount on such Distribution Date) and
(iii) the Certificate Principal Balance of the Class M-2 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) 48.80% and (ii) 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 (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) minus the product
of
(i) 0.50% and (ii) the aggregate principal balance of the Mortgage Loans as
of
the Cut-off Date.
“Class
M-3 Certificate”:
Any
one of the Class M-3 Certificates executed and authenticated by the Securities
Administrator and delivered by the Trustee, substantially in the form annexed
hereto as Exhibit A-2A and evidencing a Regular Interest in REMIC III for
purposes of the REMIC Provisions.
“Class
M-3 Principal Distribution Amount”:
With
respect to any Distribution Date on or after the Stepdown Date and on which
a
Trigger Event is not in effect, the excess of (x) the sum of (i) the Certificate
Principal Balance of the Class A Certificates (after taking into account the
payment of the Class A Principal Distribution Amount on such Distribution Date),
(ii) the sum of the Certificate Principal Balances of the Class M-1A
Certificates and Class M-1B Certificates (after taking into account the payment
of the Class M-1 Principal Distribution Amount on such Distribution Date),
(iii)
the Certificate Principal Balance of the Class M-2 Certificates (after taking
into account the payment of the Class M-2 Principal Distribution Amount on
such
Distribution Date) and (iv) the Certificate Principal Balance of the Class
M-3
Certificates immediately prior to such Distribution Date over (y) the lesser
of
(A) the product of (i) 54.00% and (ii) 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 (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) minus
the product of (i) 0.50% and (ii) the aggregate principal balance of the
Mortgage Loans as of the Cut-off Date.
“Class
M-4 Certificate”:
Any
one of the Class M-4 Certificates executed and authenticated by the Securities
Administrator and delivered by the Trustee, substantially in the form annexed
hereto as Exhibit A-2B and evidencing a Regular Interest in REMIC III for
purposes of the REMIC Provisions.
“Class
M-4 Principal Distribution Amount”:
With
respect to any Distribution Date on or after the Stepdown Date and on which
a
Trigger Event is not in effect, the excess of (x) the sum of (i) the Certificate
Principal Balance of the Class A Certificates (after taking into account the
payment of the Class A Principal Distribution Amount on such Distribution Date),
(ii) the sum of the Certificate Principal Balances of the Class M-1A
Certificates and Class M-1B Certificates (after taking into account the payment
of the Class M-1 Principal Distribution Amount on such Distribution Date),
(iii)
the Certificate Principal Balance of the Class M-2 Certificates (after taking
into account the payment of the Class M-2 Principal Distribution Amount on
such
Distribution Date), (iv) the Certificate Principal Balance of the Class M-3
Certificates (after taking into account the payment of the Class M-3 Principal
Distribution Amount on such Distribution Date) and (v) the Certificate Principal
Balance of the Class M-4 Certificates immediately prior to such Distribution
Date over (y) the lesser of (A) the product of (i) 58.20% and (ii) 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
(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) minus the product of (i) 0.50% and (ii) the aggregate principal balance
of the Mortgage Loans as of the Cut-off Date.
“Class
M-5 Certificate”:
Any
one of the Class M-5 Certificates executed and authenticated by the Securities
Administrator and delivered by the Trustee, substantially in the form annexed
hereto as Exhibit A-2B and evidencing a Regular Interest in REMIC III for
purposes of the REMIC Provisions.
“Class
M-5 Principal Distribution Amount”:
With
respect to any Distribution Date on or after the Stepdown Date and on which
a
Trigger Event is not in effect, the excess of (x) the sum of (i) the Certificate
Principal Balance of the Class A Certificates (after taking into account the
payment of the Class A Principal Distribution Amount on such Distribution Date),
(ii) the sum of the Certificate Principal Balances of the Class M-1A
Certificates and Class M-1B Certificates (after taking into account the payment
of the Class M-1 Principal Distribution Amount on such Distribution Date),
(iii)
the Certificate Principal Balance of the Class M-2 Certificates (after taking
into account the payment of the Class M-2 Principal Distribution Amount on
such
Distribution Date), (iv) the Certificate Principal Balance of the Class M-3
Certificates (after taking into account the payment of the Class M-3 Principal
Distribution Amount on such Distribution Date), (v) the Certificate Principal
Balance of the Class M-4 Certificates (after taking into account the payment
of
the Class M-4 Principal Distribution Amount on such Distribution Date) and
(vi)
the Certificate Principal Balance of the Class M-5 Certificates immediately
prior to such Distribution Date over (y) the lesser of (A) the product of (i)
62.60% and (ii) 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 (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) minus the product of (i) 0.50% and (ii)
the aggregate principal balance of the Mortgage Loans as of the Cut-off
Date.
“Class
M-6 Certificate”:
Any
one of the Class M-6 Certificates executed and authenticated by the Securities
Administrator and delivered by the Trustee, substantially in the form annexed
hereto as Exhibit A-2B and evidencing a Regular Interest in REMIC III for
purposes of the REMIC Provisions.
“Class
M-6 Principal Distribution Amount”:
With
respect to any Distribution Date on or after the Stepdown Date and on which
a
Trigger Event is not in effect, the excess of (x) the sum of (i) the Certificate
Principal Balance of the Class A Certificates (after taking into account the
payment of the Class A Principal Distribution Amount on such Distribution Date),
(ii) the sum of the Certificate Principal Balances of the Class M-1A
Certificates and Class M-1B Certificates (after taking into account the payment
of the Class M-1 Principal Distribution Amount on such Distribution Date),
(iii)
the Certificate Principal Balance of the Class M-2 Certificates (after taking
into account the payment of the Class M-2 Principal Distribution Amount on
such
Distribution Date), (iv) the Certificate Principal Balance of the Class M-3
Certificates (after taking into account the payment of the Class M-3 Principal
Distribution Amount on such Distribution Date), (v) the Certificate Principal
Balance of the Class M-4 Certificates (after taking into account the payment
of
the Class M-4 Principal Distribution Amount on such Distribution Date), (vi)
the
Certificate Principal Balance of the Class M-5 Certificates (after taking into
account the payment of the Class M-5 Principal Distribution Amount on such
Distribution Date) and (vii) the Certificate Principal Balance of the Class
M-6
Certificates immediately prior to such Distribution Date over (y) the lesser
of
(A) the product of (i) 66.80% and (ii) 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 (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) minus
the product of (i) 0.50% and (ii) the aggregate principal balance of the
Mortgage Loans as of the Cut-off Date.
“Class
M-7 Certificate”:
Any
one of the Class M-7 Certificates executed and authenticated by the Securities
Administrator and delivered by the Trustee, substantially in the form annexed
hereto as Exhibit A-2B and evidencing a Regular Interest in REMIC III for
purposes of the REMIC Provisions.
“Class
M-7 Principal Distribution Amount”:
With
respect to any Distribution Date on or after the Stepdown Date and on which
a
Trigger Event is not in effect, the excess of (x) the sum of (i) the Certificate
Principal Balance of the Class A Certificates (after taking into account the
payment of the Class A Principal Distribution Amount on such Distribution Date),
(ii) the sum of the Certificate Principal Balances of the Class M-1A
Certificates and Class M-1B Certificates (after taking into account the payment
of the Class M-1 Principal Distribution Amount on such Distribution Date),
(iii)
the Certificate Principal Balance of the Class M-2 Certificates (after taking
into account the payment of the Class M-2 Principal Distribution Amount on
such
Distribution Date), (iv) the Certificate Principal Balance of the Class M-3
Certificates (after taking into account the payment of the Class M-3 Principal
Distribution Amount on such Distribution Date), (v) the Certificate Principal
Balance of the Class M-4 Certificates (after taking into account the payment
of
the Class M-4 Principal Distribution Amount on such Distribution Date), (vi)
the
Certificate Principal Balance of the Class M-5 Certificates (after taking into
account the payment of the Class M-5 Principal Distribution Amount on such
Distribution Date), (vii) the Certificate Principal Balance of the Class M-6
Certificates (after taking into account the payment of the Class M-6 Principal
Distribution Amount on such Distribution Date) and (viii) the Certificate
Principal Balance of the Class M-7 Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i) 71.00% and
(ii)
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 (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) minus the product of (i) 0.50% and (ii) the aggregate
principal balance of the Mortgage Loans as of the Cut-off Date.
“Class
M-8 Certificate”:
Any
one of the Class M-8 Certificates executed and authenticated by the Securities
Administrator and delivered by the Trustee, substantially in the form annexed
hereto as Exhibit A-2B and evidencing a Regular Interest in REMIC III for
purposes of the REMIC Provisions.
“Class
M-8 Principal Distribution Amount”:
With
respect to any Distribution Date on or after the Stepdown Date and on which
a
Trigger Event is not in effect, the excess of (x) the sum of (i) the Certificate
Principal Balance of the Class A Certificates (after taking into account the
payment of the Class A Principal Distribution Amount on such Distribution Date),
(ii) the sum of the Certificate Principal Balances of the Class M-1A
Certificates and Class M-1B Certificates (after taking into account the payment
of the Class M-1 Principal Distribution Amount on such Distribution Date),
(iii)
the Certificate Principal Balance of the Class M-2 Certificates (after taking
into account the payment of the Class M-2 Principal Distribution Amount on
such
Distribution Date), (iv) the Certificate Principal Balance of the Class M-3
Certificates (after taking into account the payment of the Class M-3 Principal
Distribution Amount on such Distribution Date), (v) the Certificate Principal
Balance of the Class M-4 Certificates (after taking into account the payment
of
the Class M-4 Principal Distribution Amount on such Distribution Date), (vi)
the
Certificate Principal Balance of the Class M-5 Certificates (after taking into
account the payment of the Class M-5 Principal Distribution Amount on such
Distribution Date), (vii) the Certificate Principal Balance of the Class M-6
Certificates (after taking into account the payment of the Class M-6 Principal
Distribution Amount on such Distribution Date), (viii) the Certificate Principal
Balance of the Class M-7 Certificates (after taking into account the payment
of
the Class M-7 Principal Distribution Amount on such Distribution Date) and
(ix)
the Certificate Principal Balance of the Class M-8 Certificates immediately
prior to such Distribution Date over (y) the lesser of (A) the product of (i)
75.00% and (ii) 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 (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) minus the product of (i) 0.50% and (ii)
the aggregate principal balance of the Mortgage Loans as of the Cut-off
Date.
“Class
M-9 Certificate”:
Any
one of the Class M-9 Certificates executed and authenticated by the Securities
Administrator and delivered by the Trustee, substantially in the form annexed
hereto as Exhibit A-2B and evidencing a Regular Interest in REMIC III for
purposes of the REMIC Provisions.
“Class
M-9 Principal Distribution Amount”:
With
respect to any Distribution Date on or after the Stepdown Date and on which
a
Trigger Event is not in effect, the excess of (x) the sum of (i) the Certificate
Principal Balance of the Class A Certificates (after taking into account the
payment of the Class A Principal Distribution Amount on such Distribution Date),
(ii) the sum of the Certificate Principal Balances of the Class M-1A
Certificates and Class M-1B Certificates (after taking into account the payment
of the Class M-1 Principal Distribution Amount on such Distribution Date),
(iii)
the Certificate Principal Balance of the Class M-2 Certificates (after taking
into account the payment of the Class M-2 Principal Distribution Amount on
such
Distribution Date), (iv) the Certificate Principal Balance of the Class M-3
Certificates (after taking into account the payment of the Class M-3 Principal
Distribution Amount on such Distribution Date), (v) the Certificate Principal
Balance of the Class M-4 Certificates (after taking into account the payment
of
the Class M-4 Principal Distribution Amount on such Distribution Date), (vi)
the
Certificate Principal Balance of the Class M-5 Certificates (after taking into
account the payment of the Class M-5 Principal Distribution Amount on such
Distribution Date), (vii) the Certificate Principal Balance of the Class M-6
Certificates (after taking into account the payment of the Class M-6 Principal
Distribution Amount on such Distribution Date), (viii) the Certificate Principal
Balance of the Class M-7 Certificates (after taking into account the payment
of
the Class M-7 Principal Distribution Amount on such Distribution Date), (ix)
the
Certificate Principal Balance of the Class M-8 Certificates (after taking into
account the payment of the Class M-8 Principal Distribution Amount on such
Distribution Date) and (x) the Certificate Principal Balance of the Class M-9
Certificates immediately prior to such Distribution Date over (y) the lesser
of
(A) the product of (i) 78.40% and (ii) 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 (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) minus
the product of (i) 0.50% and (ii) the aggregate principal balance of the
Mortgage Loans as of the Cut-off Date.
“Class
P Certificate”:
Any
one of the Class P Certificates executed and authenticated by the Securities
Administrator and delivered by the Trustee, substantially in the form annexed
hereto as Exhibit A-5 and evidencing a Regular Interest in REMIC II for purposes
of the REMIC Provisions.
“Class
R Certificates”:
Any
one of the Class R Certificates executed and authenticated by the Securities
Administrator and delivered by the Trustee, substantially in the form annexed
hereto as Exhibit A-6, and evidencing the Class R-I Interest, the Class R-II
Interest and the Class R-III Interest.
“Class
R-I Interest”:
The
uncertificated residual interest in REMIC I.
“Class
R-II Interest”:
The
uncertificated residual interest in REMIC II.
“Class
R-III Interest”:
The
uncertificated residual interest in REMIC III.
“Closing
Date”:
January 27, 2006.
“Code”:
The
Internal Revenue Code of 1986, as amended from time to time.
“Collection
Account”:
The
separate account or accounts created and maintained, or caused to be created
and
maintained, by each Servicer pursuant to Section 3.08(a) of this Agreement,
which shall be entitled “GMAC Mortgage Corporation, as a Servicer for HSBC Bank
USA, National Association as Trustee, in trust for the registered holders of
ACE
Securities Corp., Home Equity Loan Trust, Series 2006-SL1, Asset Backed
Pass-Through Certificates”, and “Ocwen Loan Servicing, LLC, as a Servicer for
HSBC Bank USA, National Association as Trustee, in trust for the registered
holders of ACE Securities Corp., Home Equity Loan Trust, Series 2006-SL1, Asset
Backed Pass-Through Certificates”, respectively. The Collection Accounts must be
Eligible Accounts.
“Controlling
Person”:
Means,
with respect to any Person, any other Person who “controls” such Person within
the meaning of the Securities Act.
“Combined
Loan-to-Value Ratio”:
With
respect to any Mortgage Loan and as of any date of determination, the fraction
(expressed as a percentage) the numerator of which is the sum of (i) original
principal balance of the related Mortgage Loan at such date of determination
and
(ii) the unpaid principal balance of the related First Mortgage Loan as of
the
date of origination of that Mortgage Loan and the denominator of which is (a)
with respect to a Refinanced Mortgage Loan, the Value of the related Mortgaged
Property at origination and (b) with respect to all other Mortgage Loans, the
lesser of (i) the Value of the related Mortgage Property at origination and
(ii)
the purchase price of the related Mortgaged Property.
“Commission”:
The
Securities and Exchange Commission.
“Corporate
Trust Office”:
The
principal corporate trust office of the Trustee or the Securities Administrator,
as the case may be, at which, at any particular time, its corporate trust
business in connection with this Agreement shall be administered, which office
at the date of the execution of this instrument is located at (i) with respect
to the Trustee, HSBC Bank USA, National Association, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ACE Securities Corp., 2006-SL1, or at such other
address as the Trustee may designate from time to time by notice to the
Certificateholders, the Depositor, the Master Servicer, the Securities
Administrator and the Servicers and (ii) with respect to the office of the
Securities Administrator, which for purposes of Certificate transfers and
surrender is located at ▇▇▇▇▇ Fargo Bank, National Association, ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust
(ACE
2006-SL1), and (B) for all other purposes is located at ▇▇▇▇▇ Fargo Bank,
National Association, ▇.▇. ▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Corporate Trust (ACE 2006-SL1) (or for overnight deliveries, at ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust (ACE
2006-SL1)) or at such other address as the Securities Administrator may
designate from time to time by notice to the Certificateholders, the Depositor,
the Master Servicer, the Servicer and the Trustee.
“Corresponding
Certificate”:
With
respect to each REMIC II Regular Interest, as follows:
|
REMIC
II Regular
Interest
|
Class
|
|
REMIC
II Regular Interest A
|
A
|
|
REMIC
II Regular Interest M-1A
|
M-1A
|
|
REMIC
II Regular Interest M-1B
|
M-1B
|
|
REMIC
II Regular Interest M-2
|
M-2
|
|
REMIC
II Regular Interest M-3
|
M-3
|
|
REMIC
II Regular Interest M-4
|
M-4
|
|
REMIC
II Regular Interest M-5
|
M-5
|
|
REMIC
II Regular Interest M-6
|
M-6
|
|
REMIC
II Regular Interest M-7
|
M-7
|
|
REMIC
II Regular Interest M-8
|
M-8
|
|
REMIC
II Regular Interest M-9
|
M-9
|
|
REMIC
II Regular Interest B-1
|
B-1
|
|
REMIC
II Regular Interest P
|
P
|
|
REMIC
II Regular Interest CE-2
|
CE-2
|
“Credit
Enhancement Percentage”:
For
any Distribution Date, the percentage equivalent of a fraction, the numerator
of
which is the sum of the aggregate Certificate Principal Balances of the
Mezzanine Certificates, the Class B-1 Certificates and the Class CE-1
Certificates, and the denominator of which is 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 Certificates then entitled to distributions
of principal on such Distribution Date.
“Credit
Risk Management Agreements”:
The
agreements between the Credit Risk Manager and each Servicer and/or Master
Servicer, each regarding the loss mitigation and advisory services to be
provided by the Credit Risk Manager.
“Credit
Risk Management Fee”:
The
amount payable to the Credit Risk Manager on each Distribution Date as
compensation for all services rendered by it in the exercise and performance
of
any and all powers and duties of the Credit Risk Manager under the Credit Risk
Management Agreements, which amount shall equal one twelfth of the product
of
(i) the Credit Risk Management Fee Rate multiplied by (ii) the Stated Principal
Balance of the Mortgage Loans and any related REO Properties as of the first
day
of the related Due Period.
“Credit
Risk Management Fee Rate”:
0.015%
per annum.
“Credit
Risk Manager”:
▇▇▇▇▇▇▇ Fixed Income Services Inc. (formerly known as The Murrayhill Company),
a
Colorado corporation, and its successors and assigns.
“Custodial
Agreement”:
Either
of the DBNTC Custodial Agreement or the ▇▇▇▇▇ Fargo Custodial Agreement, or
any
other custodial agreement entered into after the date hereof with respect to
any
Mortgage Loan subject to this Agreement.
“Custodian”:
Either
▇▇▇▇▇ Fargo or DBNTC or any other custodian appointed under any custodial
agreement entered into after the date of this Agreement.
“Cut-off
Date”:
With
respect to each Mortgage Loan, January 1, 2006. With respect to all Qualified
Substitute Mortgage Loans, their respective dates of substitution. References
herein to the “Cut-off Date,” when used with respect to more than one Mortgage
Loan, shall be to the respective Cut-off Dates for such Mortgage
Loans.
“DBNTC”:
Deutsche Bank National Trust Company, a national banking
association.
“DBNTC
Custodial Agreement”:
The
Custodial Agreement dated as of January 1, 2006, among the Trustee, DBNTC and
GMAC and Ocwen, as may be amended or supplemented from time to
time.
“Debt
Service Reduction”:
With
respect to any Mortgage Loan, a reduction in the scheduled Monthly Payment
for
such Mortgage Loan by a court of competent jurisdiction in a proceeding under
the Bankruptcy Code, except such a reduction resulting from a Deficient
Valuation.
“Deficient
Valuation”:
With
respect to any Mortgage Loan, a valuation of the related Mortgaged Property
by a
court of competent jurisdiction in an amount less than the then outstanding
principal balance of the Mortgage Loan, which valuation results from a
proceeding initiated under the Bankruptcy Code.
“Definitive
Certificates”:
As
defined in Section 6.01(b) of this Agreement.
“Deleted
Mortgage Loan”:
A
Mortgage Loan replaced or to be replaced by a Qualified Substitute Mortgage
Loan.
“Delinquency
Percentage”:
As of
the last day of the related Due Period, the percentage equivalent of a fraction,
the numerator of which is the aggregate Stated Principal Balance of all Mortgage
Loans that, as of the last day of the previous calendar month, are sixty (60)
or
more days delinquent, are in foreclosure, have been converted to REO Properties
or have been discharged by reason of bankruptcy, and the denominator of which
is
the aggregate Stated Principal Balance of the Mortgage Loans and REO Properties
as of the last day of the previous calendar month.
“Depositor”:
ACE
Securities Corp., a Delaware corporation, or its successor in
interest.
“Depository”:
The
Depository Trust Company, or any successor Depository hereafter named. The
nominee of the initial Depository, for purposes of registering those
Certificates that are to be Book-Entry Certificates, is Cede & Co. The
Depository shall at all times be a “clearing corporation” as defined in
Section 8-102(3) of the Uniform Commercial Code of the State of New York
and a “clearing agency” registered pursuant to the provisions of
Section 17A of the Exchange Act.
“Depository
Institution”:
Any
depository institution or trust company, including the Trustee, that (a) is
incorporated under the laws of the United States of America or any State
thereof, (b) is subject to supervision and examination by federal or state
banking authorities and (c) has outstanding unsecured commercial paper or other
short-term unsecured debt obligations (or, in the case of a depository
institution that is the principal subsidiary of a holding company, such holding
company has unsecured commercial paper or other short-term unsecured debt
obligations) that are rated at least A-1+ by S&P and P-1 by ▇▇▇▇▇’▇ (or, if
such Rating Agencies are no longer rating the Offered Certificates, comparable
ratings by any other nationally recognized statistical rating agency then rating
the Offered Certificates).
“Depository
Participant”:
A
broker, dealer, bank or other financial institution or other Person for whom
from time to time a Depository effects book-entry transfers and pledges of
securities deposited with the Depository.
“Determination
Date”:
With
respect to each Distribution Date, the 15th day of the calendar month in which
such Distribution Date occurs, or if such 15th day is not a Business Day, the
Business Day immediately preceding such 15th day. The Determination Date for
purposes of Article X hereof shall mean the 15th
day of
the month or, if such 15th
day is
not a Business Day, the first Business Day following such 15th
day.
“Directly
Operate”:
With
respect to any REO Property, the furnishing or rendering of services to the
tenants thereof, the management or operation of such REO Property, the holding
of such REO Property primarily for sale to customers, the performance of any
construction work thereon or any use of such REO Property in a trade or business
conducted by REMIC I other than through an Independent Contractor; provided,
however, that the related Servicer, on behalf of the Trustee, shall not be
considered to Directly Operate an REO Property solely because the related
Servicer establishes rental terms, chooses tenants, enters into or renews
leases, deals with taxes and insurance, or makes decisions as to repairs or
capital expenditures with respect to such REO Property.
“Disqualified
Organization”:
Any of
the following: (i) the United States, any State or political subdivision
thereof, any possession of the United States, or any agency or instrumentality
of any of the foregoing (other than an instrumentality which is a corporation
if
all of its activities are subject to tax and, except for ▇▇▇▇▇▇▇ Mac, a majority
of its board of directors is not selected by such governmental unit), (ii)
any
foreign government, any international organization, or any agency or
instrumentality of any of the foregoing, (iii) any organization (other than
certain farmers’ cooperatives described in Section 521 of the Code) which
is exempt from the tax imposed by Chapter 1 of the Code (including the tax
imposed by Section 511 of the Code on unrelated business taxable income),
(iv) rural electric and telephone cooperatives described in
Section 1381(a)(2)(C) of the Code, (v) an “electing large partnership” and
(vi) any other Person so designated by the Trustee based upon an Opinion of
Counsel that the holding of an Ownership Interest in a Residual Certificate
by
such Person may cause any Trust REMIC or any Person having an Ownership Interest
in any Class of Certificates (other than such Person) to incur a liability
for
any federal tax imposed under the Code that would not otherwise be imposed
but
for the Transfer of an Ownership Interest in a Residual Certificate to such
Person. The terms “United States,” “State” and “international organization”
shall have the meanings set forth in Section 7701 of the Code or successor
provisions.
“Distribution
Account”:
The
separate trust account or accounts created and maintained by the Securities
Administrator pursuant to Section 3.08(b) of this Agreement in the name of
the Securities Administrator for the benefit of the Certificateholders and
designated “▇▇▇▇▇ Fargo Bank, N.A., in trust for registered holders of ACE
Securities Corp. Home Equity Loan Trust, Series 2006-SL1”. Funds in the
Distribution Account shall be held in trust for the Certificateholders for
the
uses and purposes set forth in this Agreement. The Distribution Account must
be
an Eligible Account.
“Distribution
Date”:
The
25th day of any month, or if such 25th day is not a Business Day, the Business
Day immediately following such 25th day, commencing in February
2006.
“Due
Date”:
With
respect to each Distribution Date, the day of the month on which the Monthly
Payment is due on a Mortgage Loan during the related Due Period, exclusive
of
any days of grace.
“Due
Period”:
With
respect to any Distribution Date and any Mortgage Loan, the period commencing
on
the second day of the month immediately preceding the month in which such
Distribution Date occurs and ending on the first day of the month in which
such
Distribution Date occurs.
“Eligible
Account”:
Any of
(i) an account or accounts maintained with a Depository Institution, (ii) an
account or accounts the deposits in which are fully insured by the FDIC, (iii)
a
trust account or accounts maintained with a federal depository institution
or
state chartered depository institution acting in its fiduciary capacity, or
(iv)
an account or accounts acceptable to each Rating Agency as confirmed and
approved in writing by each Rating Agency. Eligible Accounts may bear
interest.
“ERISA”:
The
Employee Retirement Income Security Act of 1974, as amended from time to
time.
“Escrow
Mortgage Loan”:
Any
Mortgage Loan for which the related Servicer has established an Escrow Account
for items constituting Escrow Payments.
“Escrow
Payments”:
With
respect to any Mortgage Loan, the amounts constituting ground rents, taxes,
mortgage insurance premiums, fire and hazard insurance premiums, and any other
payments required to be escrowed by the Mortgagor with the mortgagee pursuant
to
the Mortgage, applicable law or any other related document.
“Estate
in Real Property”:
A fee
simple estate in a parcel of land.
“Excess
Liquidation Proceeds”:
To the
extent that such amount is not required by law to be paid to the related
Mortgagor, the amount, if any, by which Liquidation Proceeds with respect to
a
liquidated Mortgage Loan exceed the sum of (i) the outstanding principal balance
of such Mortgage Loan and accrued but unpaid interest at the related Net
Mortgage Rate through the last day of the month in which the related Liquidation
Event occurs, plus (ii) related liquidation expenses or other amounts to which
the related Servicer is entitled to be reimbursed from Liquidation Proceeds
with
respect to such liquidated Mortgage Loan pursuant to Section 3.09 of this
Agreement.
“Exchange
Act”:
The
Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder.
“Excess
Servicing Fee”:
Shall
have the meaning set forth in Section 5.01(b).
“Expense
Adjusted Mortgage Rate”:
With
respect to any Mortgage Loan or REO Property, the then applicable Mortgage
Rate
thereon minus the Administration Fee Rate.
“Extraordinary
Trust Fund Expense”:
Any
amounts payable or reimbursable to the Trustee, the Master Servicer, the
Securities Administrator, the Custodians or any director, officer, employee
or
agent of any such Person from the Trust Fund pursuant to the terms of this
Agreement and any amounts payable from the Distribution Account in respect
of
taxes pursuant to Section 11.01(g)(v) of this Agreement.
“▇▇▇▇▇▇
▇▇▇”:
▇▇▇▇▇▇
▇▇▇, formerly known as the Federal National Mortgage Association, or any
successor thereto.
“FDIC”:
Federal Deposit Insurance Corporation or any successor thereto.
“Final
Maturity Date”:
The
Distribution Date occurring in September 2035.
“Final
Recovery Determination”:
With
respect to any defaulted Mortgage Loan or any REO Property (other than a
Mortgage Loan or REO Property purchased by an originator, the Sponsor or the
Master Servicer pursuant to or as contemplated by Section 2.03, 3.13(c) or
Section 10.01 of this Agreement), a determination made by the related
Servicer that all Insurance Proceeds, Liquidation Proceeds and other payments
or
recoveries which the related Servicer, in its reasonable good faith judgment,
expects to be finally recoverable in respect thereof have been so recovered,
which determination shall be evidenced by a certificate of a Servicing Officer
delivered to the Master Servicer and maintained in its records.
“First
Mortgage Loan”:
A
mortgage loan that is secured by a first lien on the related Mortgaged
Property.
“Fixed
Rate Certificates”:
Any
one of the Class M-1A, Class M-2 or Class M-3 Certificates.
“Floating
Rate Certificates”:
Any
one of the Class A, Class M-1B, Class M-4, Class M-5, Class M-6, Class M-7,
Class M-8, Class M-9 or Class B-1 Certificates.
“Form
8-K Disclosure Information”:
Has
the meaning set forth in Section 5.06(b) of this Agreement.
“▇▇▇▇▇▇▇
Mac”:
▇▇▇▇▇▇▇ Mac, formerly known as the 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 and
identified as such on the Mortgage Loan Schedule.
“GMAC
Servicing Fee Rate”:
With
respect to each GMAC Mortgage Loan, 0.21% per annum.
“Independent”:
When
used with respect to any specified Person, any such Person who (a) is in fact
independent of the Depositor, the Master Servicer, the Securities Administrator,
the Servicers, the Sponsor, any originator and their respective Affiliates,
(b)
does not have any direct financial interest in or any material indirect
financial interest in the Depositor, the Master Servicer, the Securities
Administrator, the Servicers, the Sponsor, any originator or any Affiliate
thereof, and (c) is not connected with the Depositor, the Master Servicer,
the
Securities Administrator, the Servicers, the Sponsor, any originator or any
Affiliate thereof as an officer, employee, promoter, underwriter, trustee,
partner, director or Person performing similar functions; provided, however,
that a Person shall not fail to be Independent of the Depositor, the Master
Servicer, the Securities Administrator, the Servicers, the Sponsor, any
originator or any Affiliate thereof merely because such Person is the beneficial
owner of 1% or less of any class of securities issued by the Depositor, the
Master Servicer, the Securities Administrator, the Servicers, the Sponsor,
any
originator or any Affiliate thereof, as the case may be. When used with respect
to any accountants, a Person who is “independent” within the meaning of Rule
2-01(B) of the Securities and Exchange Commission’s Regulation S-X.
“Independent
Contractor”:
Either
(i) any Person (other than a Servicer) that would be an “independent contractor”
with respect to REMIC I within the meaning of Section 856(d)(3) of the Code
if REMIC I were a real estate investment trust (except that the ownership tests
set forth in that section shall be considered to be met by any Person that
owns,
directly or indirectly, 35% or more of any Class of Certificates), so long
as
REMIC I does not receive or derive any income from such Person and provided
that
the relationship between such Person and REMIC I is at arm’s length, all within
the meaning of Treasury Regulation Section 1.856-4(b)(5), or (ii) any other
Person (including a Servicer) if the Trustee has received an Opinion of Counsel
to the effect that the taking of any action in respect of any REO Property
by
such Person, subject to any conditions therein specified, that is otherwise
herein contemplated to be taken by an Independent Contractor will not cause
such
REO Property to cease to qualify as “foreclosure property” within the meaning of
Section 860G(a)(8) of the Code (determined without regard to the exception
applicable for purposes of Section 860D(a) of the Code), or cause any
income realized in respect of such REO Property to fail to qualify as Rents
from
Real Property.
“Institutional
Accredited Investor”:
As
defined in Section 6.01(c) of this Agreement.
“Insurance
Proceeds”:
Proceeds of any title policy, hazard policy or other insurance policy, covering
a Mortgage Loan or the related Mortgaged Property, to the extent such proceeds
are not to be applied to the restoration of the related Mortgaged Property
or
released to the Mortgagor or a senior lienholder in accordance with Accepted
Servicing Practices, subject to the terms and conditions of the related Mortgage
Note and Mortgage.
“Interest
Accrual Period”:
With
respect to any Distribution Date and the Floating Rate Certificates, the period
commencing on the Distribution Date of the month immediately preceding the
month
in which such Distribution Date occurs (or, in the case of the first
Distribution Date, commencing on the Closing Date) and ending on the day
preceding such Distribution Date. With respect to any Distribution Date and
the
Fixed Rate Certificates, the Class CE-1 Certificates and Class CE-2 Certificates
and the REMIC II Regular Interests, the one-month period commencing on the
first
day of the month prior to the month in which the Distribution Date occurs and
ending on the last day of the calendar month immediately preceding the month
in
which such Distribution Date occurs.
“Interest
Carry Forward Amount”:
With
respect to any Distribution Date and any Class A Certificate, Mezzanine
Certificate or Class B-1 Certificate, the sum of (i) the amount, if any, by
which (a) the Interest Distribution Amount for such Class as of the immediately
preceding Distribution Date exceeded (b) the actual amount distributed on such
Class in respect of interest on such immediately preceding Distribution Date
and
(ii) the amount of any Interest Carry Forward Amount for such Class remaining
unpaid from the previous Distribution Date, plus accrued interest on such sum
calculated at the related Pass-Through Rate for the most recently ended Interest
Accrual Period.
“Interest
Determination Date”:
With
respect to the Floating Rate Certificates and REMIC II Regular Interest A,
REMIC
II Regular Interest M-1B, REMIC II Regular Interest M-4, REMIC II Regular
Interest M-5, REMIC II Regular Interest M-6, REMIC II Regular Interest M-7,
REMIC II Regular Interest M-8, REMIC II Regular Interest M-9 and REMIC II
Regular Interest B-1 and any Interest Accrual Period therefor, the second London
Business Day preceding the commencement of such Interest Accrual
Period.
“Interest
Distribution Amount”:
With
respect to any Distribution Date and any Class A Certificates, any Mezzanine
Certificates, any Class B-1 Certificates and any Class CE-1 Certificates, the
aggregate Accrued Certificate Interest on the Certificates of such Class for
such Distribution Date.
“Interest
Remittance Amount”:
With
respect to any Distribution Date, that portion of the Available Distribution
Amount for such Distribution Date that represents interest received or advanced
on the Mortgage Loans (net of the Administration Fees and any Prepayment Charges
and after taking into account amounts payable or reimbursable to the Trustee,
the Custodians, the Securities Administrator, the Credit Risk Manager, the
Master Servicer or the Servicers pursuant to this Agreement or the Custodial
Agreements).
“Last
Scheduled Distribution Date”:
The
Distribution Date in September 2035, which is the Distribution Date immediately
following the maturity date for the Mortgage Loan with the latest maturity
date.
“Late
Collections”:
With
respect to any Mortgage Loan and any Due Period, all amounts received subsequent
to the Determination Date immediately following such Due Period with respect
to
such Mortgage Loan, whether as late payments of Monthly Payments or as Insurance
Proceeds, Liquidation Proceeds or otherwise, which represent late payments
or
collections of principal and/or interest due (without regard to any acceleration
of payments under the related Mortgage and Mortgage Note) but delinquent for
such Due Period and not previously recovered.
“Liquidated
Mortgage Loan”:
A
Liquidated Mortgage Loan is a Mortgage Loan that was liquidated and for which
the related Servicer has determined that it has received all amounts it expects
to receive in connection with such liquidation, including payments under any
related private mortgage insurance policy, hazard insurance policy or any
condemnation proceeds and amounts received in connection with the final
disposition of the related REO Property.
“Liquidation
Event”:
With
respect to any Mortgage Loan, any of the following events: (i) such Mortgage
Loan is paid in full; (ii) a Final Recovery Determination is made as to such
Mortgage Loan or (iii) such Mortgage Loan is removed from REMIC I by reason
of
its being purchased, sold or replaced pursuant to or as contemplated by
Section 2.03, Section 3.13(c) or Section 10.01 of this Agreement.
With respect to any REO Property, either of the following events: (i) a Final
Recovery Determination is made as to such REO Property or (ii) such REO Property
is removed from REMIC I by reason of its being purchased pursuant to
Section 10.01 of this Agreement.
“Liquidation
Proceeds”:
The
amount (other than Insurance Proceeds, amounts received in respect of the rental
of any REO Property prior to REO Disposition, or required to be released to
a
Mortgagor or a senior lienholder in accordance with applicable law or the terms
of the related Mortgage Loan Documents) received by the related Servicer in
connection with (i) the taking of all or a part of a Mortgaged Property by
exercise of the power of eminent domain or condemnation (other than amounts
required to be released to the Mortgagor or a senior lienholder), (ii) the
liquidation of a defaulted Mortgage Loan through a trustee’s sale, foreclosure
sale or otherwise, (iii) the repurchase, substitution or sale of a Mortgage
Loan
or an REO Property pursuant to or as contemplated by Section 2.03,
Section 3.13(c), Section 3.21 or Section 10.01 of this Agreement
or (iv) any Subsequent Recoveries.
“Loan-to-Value
Ratio”:
As of
any date of determination, the fraction, expressed as a percentage, the
numerator of which is the principal balance of the related Mortgage Loan at
such
date and the denominator of which is the Value of the related Mortgaged
Property.
“London
Business Day”:
Any
day on which banks in the Cities of London and New York are open and conducting
transactions in United States dollars.
“Loss
Severity Percentage”:
With
respect to any Distribution Date, the percentage equivalent of a fraction,
the
numerator of which is the amount of Realized Losses incurred on a Mortgage
Loan
and the denominator of which is the principal balance of such Mortgage Loan
immediately prior to the liquidation of such Mortgage Loan.
“Marker
Rate”:
With
respect to the Class CE-1 Certificates and any Distribution Date, a per annum
rate equal to two (2) times the weighted average of the REMIC II Remittance
Rate
for each of REMIC II Regular Interest A, REMIC II Regular Interest M-1A, REMIC
II Regular Interest M-1B, REMIC II Regular Interest M-2, REMIC II Regular
Interest M-3, REMIC II Regular Interest M-4, REMIC II Regular Interest M-5,
REMIC II Regular Interest M-6, REMIC II Regular Interest M-7, REMIC II Regular
Interest M-8, REMIC II Regular Interest M-9, REMIC II Regular Interest B-1
and
REMIC II Regular Interest ZZ, with the rate on each such REMIC II Regular
Interest (other than REMIC II Regular Interest ZZ) subject to a cap equal to
the
related Pass-Through Rate for the corresponding Certificate for the purpose
of
this calculation for such Distribution Date and with the rate on REMIC II
Regular Interest ZZ subject to a cap of zero for the purpose of this
calculation; provided however, the cap for each REMIC II Regular Interest (other
than REMIC II Regular Interest M-1A, REMIC II Regular Interest M-2 and REMIC
II
Regular Interest M-3) shall be multiplied by a fraction the numerator of which
is the actual number of days in the related Interest Accrual Period and the
denominator of which is thirty (30).
“Master
Servicer”:
As of
the Closing Date, ▇▇▇▇▇ Fargo Bank, National Association and thereafter, its
respective successors in interest who meet the qualifications of this Agreement.
The Master Servicer and the Securities Administrator shall at all times be
the
same Person or an Affiliate.
“Master
Servicer Event of Default”:
One or
more of the events described in Section 8.01(b) of this
Agreement.
“Master
Servicing Fee”:
With
respect to each Mortgage Loan and for any calendar month, an amount equal to
one
twelfth of the product of the Master Servicing Fee Rate multiplied by the
Scheduled Principal Balance of the Mortgage Loans as of the Due Date in the
preceding calendar month.
“Master
Servicing Fee Rate”:
0.0185% per annum.
“Maximum
II-ZZ Uncertificated Interest Deferral Amount”:
With
respect to any Distribution Date, the excess of (i) accrued interest at the
REMIC II Remittance Rate applicable to REMIC II Regular Interest ZZ for such
Distribution Date on a balance equal to the Uncertificated Balance of REMIC
II
Regular Interest ZZ minus the REMIC II Overcollateralization Amount, in each
case for such Distribution Date, over (ii) Uncertificated Interest on REMIC
II
Remittance Rate for each of REMIC II Regular Interest A, REMIC II Regular
Interest M-1A, REMIC II Regular Interest M-1B, REMIC II Regular Interest M-2,
REMIC II Regular Interest M-3, REMIC II Regular Interest M-4, REMIC II Regular
Interest M-5, REMIC II Regular Interest M-6, REMIC II Regular Interest M-7,
REMIC II Regular Interest M-8, REMIC II Regular Interest M-9 and REMIC II
Regular Interest B-1, 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 for the corresponding Certificate for the purpose of this calculation
for
such Distribution Date; provided however, the cap for each such REMIC II Regular
Interest (other than REMIC II Regular Interest M-1A, REMIC II Regular Interest
M-2 and REMIC II Regular Interest M-3) shall be multiplied by a fraction the
numerator of which is the actual number of days in the related Interest Accrual
Period and the denominator of which is thirty (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®
System”:
The
system of recording transfers of mortgages electronically maintained by
MERS.
“Mezzanine
Certificate”:
Any
Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class M-3, Class M-4, Class M-5, Class M-6, Class M-7,
Class M-8 or Class M-9 Certificate.
“MIN”:
The
Mortgage Identification Number for Mortgage Loans registered with MERS on the
MERS® System.
“MOM
Loan”:
With
respect to any Mortgage Loan, MERS 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
Payment”:
With
respect to any Mortgage Loan, the scheduled monthly payment of principal and
interest on such Mortgage Loan which is payable by the related Mortgagor from
time to time under the related Mortgage Note, determined: (a) after giving
effect to (i) any Deficient Valuation and/or Debt Service Reduction with respect
to such Mortgage Loan and (ii) any reduction in the amount of interest
collectible from the related Mortgagor pursuant to the Relief Act or similar
state or local laws; (b) without giving effect to any extension granted or
agreed to by the related Servicer pursuant to Section 3.01 of this
Agreement; and (c) on the assumption that all other amounts, if any, due under
such Mortgage Loan are paid when due.
“Moody’s”:
▇▇▇▇▇’▇ Investors Service, Inc. or any successor interest.
“Mortgage”:
The
mortgage, deed of trust or other instrument creating a second lien on, or second
priority security interest in, a Mortgaged Property securing a Mortgage
Note.
“Mortgage
File”:
The
Mortgage Loan Documents pertaining to a particular Mortgage Loan.
“Mortgage
Loan”:
Each
mortgage loan transferred and assigned to the Trustee and the Mortgage Loan
Documents for which have been delivered to the related Custodian pursuant to
Section 2.01 of this Agreement and pursuant to the Custodial Agreement, as
held from time to time as a part of the Trust Fund, the Mortgage Loans so held
being identified in the Mortgage Loan Schedule.
“Mortgage
Loan Documents”:
The
documents evidencing or relating to each Mortgage Loan delivered to the related
Custodian under the Custodial Agreement on behalf of the Trustee.
“Mortgage
Loan Purchase Agreement”:
Shall
mean the Mortgage Loan Purchase Agreement dated as of January 27, 2006, between
the Depositor and the Sponsor, a copy of which is attached hereto as
Exhibit
F.
“Mortgage
Loan Schedule”:
As of
any date, the list of Mortgage Loans included in REMIC I on such date, attached
hereto as Schedule 1. The Depositor shall deliver or cause the delivery of
the
initial Mortgage Loan Schedule to the related Servicer, the Master Servicer,
the
related Custodian and the Trustee on the Closing Date. The Mortgage Loan
Schedule shall set forth the following information with respect to each Mortgage
Loan:
(i) the
Mortgage Loan identifying number;
(ii) the
Mortgagor’s first and last name;
(iii) the
street address of the Mortgaged Property including the state and zip
code;
(iv) a
code
indicating whether the Mortgaged Property is owner-occupied;
(v) the
type
of Residential Dwelling constituting the Mortgaged Property;
(vi) the
original months to maturity;
(vii) the
original date of the Mortgage Loan and the remaining months to maturity from
the
Cut-off Date, based on the original amortization schedule;
(viii) the
Loan-to-Value Ratio at origination;
(ix) the
Mortgage Rate in effect immediately following the Cut-off Date;
(x) the
date
on which the first Monthly Payment was due on the Mortgage Loan;
(xi) the
stated maturity date;
(xii) the
amount of the Monthly Payment at origination;
(xiii) the
amount of the Monthly Payment as of the Cut-off Date;
(xiv) the
last
Due Date on which a Monthly Payment was actually applied to the unpaid Stated
Principal Balance;
(xv) the
original principal amount of the Mortgage Loan;
(xvi) the
Stated Principal Balance of the Mortgage Loan as of the close of business on
the
Cut-off Date;
(xvii) a
code
indicating the purpose of the loan (i.e., purchase financing, rate/term
refinancing, cash-out refinancing);
(xviii) the
Mortgage Rate at origination;
(xix) the
date
on which the first Monthly Payment was due on the Mortgage Loan and, if such
date is not consistent with the Due Date currently in effect, such Due
Date;
(xx) a
code
indicating the documentation style (i.e., full, stated or limited);
(xxi) a
code
indicating if the Mortgage Loan is subject to a primary insurance policy or
lender paid mortgage insurance policy and the name of the insurer;
(xxii) the
Appraised Value of the Mortgaged Property;
(xxiii) the
sale
price of the Mortgaged Property, if applicable;
(xxiv) 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;
(xxv) the
product type (e.g., 2/28, 15 year fixed, 30 year fixed, 15/30 balloon,
etc.);
(xxvi) the
Mortgagor’s debt to income ratio;
(xxvii) the
FICO
score at origination;
(xxviii) the
applicable Servicer; and
(xxix) the
applicable Custodian.
The
Mortgage Loan Schedule shall set forth the following information with respect
to
the Mortgage Loans in the aggregate as of the Cut-off Date: (1) the number
of
Mortgage Loans; (2) the current principal balance of the Mortgage Loans; (3)
the
weighted average Mortgage Rate of the Mortgage Loans; and (4) the weighted
average maturity of the Mortgage Loans. The Mortgage Loan Schedule shall be
amended from time to time by the Depositor in accordance with the provisions
of
this Agreement. With respect to any Qualified Substitute Mortgage Loan, the
Cut-off Date shall refer to the related Cut-off Date for such Mortgage Loan,
determined in accordance with the definition of Cut-off Date
herein.
“Mortgage
Note”:
The
original executed note or other evidence of the indebtedness of a Mortgagor
under a Mortgage Loan.
“Mortgage
Rate”:
With
respect to each Mortgage Loan, the annual rate at which interest accrues on
such
Mortgage Loan from time to time in accordance with the provisions of the related
Mortgage Note. With respect to each Mortgage Loan that becomes an REO Property,
as of any date of determination, the annual rate determined in accordance with
the immediately preceding sentence as of the date such Mortgage Loan became
an
REO Property.
“Mortgaged
Property”:
The
underlying property securing a Mortgage Loan, including any REO Property,
consisting of an Estate in Real Property improved by a Residential
Dwelling.
“Mortgagor”:
The
obligor on a Mortgage Note.
“Net
Monthly Excess Cashflow”:
With
respect to any Distribution Date, the sum of (i) any Overcollateralization
Reduction Amount for such Distribution Date and (ii) the excess of (x) the
Available Distribution Amount for such Distribution Date over (y) the sum for
such Distribution Date of (A) the aggregate Senior Interest Distribution Amounts
payable to the Holders of the Class A Certificates, (B) the aggregate Interest
Distribution Amounts payable to the holders of the Mezzanine Certificates and
the Class B-1 Certificates, (C) the Principal Remittance Amount and (D) any
Net
Swap Payment or Swap Termination Payment (not caused by the occurrence of a
Swap
Provider Trigger Event) owed to the Swap Provider.
“Net
Mortgage Rate”:
With
respect to any Mortgage Loan (or the related REO Property) as of any date of
determination, a per annum rate of interest equal to the then applicable
Mortgage Rate for such Mortgage Loan minus the Administration Fee
Rate.
“Net
Swap Payment”:
With
respect to each Distribution Date, the net payment required to be made pursuant
to the terms of the Swap Agreement by either the Swap Provider or the
Supplemental Interest Trust, which net payment shall not take into account
any
Swap Termination Payment.
“Net
WAC Pass-Through Rate”:
For
any Distribution Date and the Offered Certificates and the Class B-1
Certificates, a rate per annum (adjusted, with respect to the Floating Rate
Certificates, for the actual number of days elapsed in the related Interest
Accrual Period) equal to a fraction, expressed as a percentage, the numerator
of
which is the amount of interest which accrued on the Mortgage Loans in the
prior
calendar month minus the Administration Fees for such Distribution Date and
the
Net Swap Payment payable to the Swap Provider or Swap Termination Payment
payable to the Swap Provider which was not caused by the occurrence of a Swap
Provider Trigger Event, in each case for such Distribution Date and the
denominator of which is the aggregate principal balance of the Mortgage Loans
as
of the last day of the immediately preceding Due Period (or as of the Cut-off
Date with respect to the first Distribution Date), after giving effect to
principal prepayments received during the related Prepayment Period. For federal
income tax purposes, the economic equivalent of such rate shall be expressed
as
the weighted average of the REMIC II Remittance Rates on the REMIC II Regular
Interests, weighted on the basis of the Uncertificated Balance of each such
REMIC II Regular Interest.
“New
Lease”:
Any
lease of REO Property entered into on behalf of REMIC I, including any lease
renewed or extended on behalf of REMIC I, if REMIC I has the right to
renegotiate the terms of such lease.
“Nonrecoverable
P&I Advance”:
Any
P&I Advance previously made or proposed to be made in respect of a Mortgage
Loan or REO Property that, in the good faith business judgment of the related
Servicer or a successor to the related Servicer (including the Master Servicer)
will not or, in the case of a proposed P&I Advance, would not be ultimately
recoverable from related Late Collections, Insurance Proceeds or Liquidation
Proceeds on such Mortgage Loan or REO Property as provided herein.
“Nonrecoverable
Servicing Advance”:
Any
Servicing Advance previously made or proposed to be made in respect of a
Mortgage Loan or REO Property that, in the good faith business judgment of
the
related Servicer, will not or, in the case of a proposed Servicing Advance,
would not be ultimately recoverable from related Late Collections, Insurance
Proceeds or Liquidation Proceeds on such Mortgage Loan or REO Property as
provided herein.
“Non-United
States Person”:
Any
Person other than a United States Person.
“Notional
Amount”:
With
respect to the Class CE-1 Certificates and any Distribution Date, the
Uncertificated Balance of the REMIC II Regular Interests (other than REMIC
II
Regular Interest P) for such Distribution Date. As of the Closing Date, the
Notional Amount of the Class CE-1 Certificates is equal to
$421,957,277.74.
With
respect to the Class CE-2 Certificates and any Distribution Date, the Notional
Amount of the REMIC II Regular Interest CE-2 for such Distribution Date.
With
respect to the REMIC II Regular Interest CE-2 and any Distribution Date, the
Notional Amount of the REMIC I Regular Interest I-CE-2 and REMIC I Regular
Interest II-CE-2 for such Distribution Date.
With
respect to REMIC I Regular Interest I-CE-2 and any Distribution Date, the sum
of
the aggregate principal balances of the Ocwen Mortgage Loans for such
Distribution Date. With respect to REMIC I Regular Interest II-CE-2 and any
Distribution Date, the sum of the aggregate principal balances of the GMAC
Mortgage Loans for such Distribution Date.
With
respect to REMIC II Regular Interest IO and each Distribution Date listed below,
the aggregate Uncertificated Balance of the REMIC I Regular Interests ending
with the designation “A” listed below:
|
Distribution
Date
|
REMIC
I Regular Interests
|
|
1
|
I-1-A
through ▇-▇▇-▇
|
|
▇
|
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇▇-▇
|
|
▇
|
▇-▇-▇
through ▇-▇▇-▇
|
|
▇
|
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇▇-▇
|
|
▇
|
▇-▇-▇
through ▇-▇▇-▇
|
|
▇
|
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇▇-▇
|
|
▇
|
▇-▇-▇
through ▇-▇▇-▇
|
|
▇
|
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇▇-▇
|
|
▇
|
▇-▇-▇
through I-63-A
|
|
10
|
I-10-A
through I-63-A
|
|
11
|
I-11-A
through I-63-A
|
|
12
|
I-12-A
through I-63-A
|
|
13
|
I-13-A
through I-63-A
|
|
14
|
I-14-A
through I-63-A
|
|
15
|
I-15-A
through I-63-A
|
|
16
|
I-16-A
through I-63-A
|
|
17
|
I-17-A
through I-63-A
|
|
18
|
I-18-A
through I-63-A
|
|
19
|
I-19-A
through I-63-A
|
|
20
|
I-20-A
through I-63-A
|
|
21
|
I-21-A
through I-63-A
|
|
22
|
I-22-A
through I-63-A
|
|
23
|
I-23-A
through I-63-A
|
|
24
|
I-24-A
through I-63-A
|
|
25
|
I-25-A
through I-63-A
|
|
26
|
I-26-A
through I-63-A
|
|
27
|
I-27-A
through I-63-A
|
|
28
|
I-28-A
through I-63-A
|
|
29
|
I-29-A
through I-63-A
|
|
30
|
I-30-A
through I-63-A
|
|
31
|
I-31-A
through I-63-A
|
|
32
|
I-32-A
through I-63-A
|
|
33
|
I-33-A
through I-63-A
|
|
34
|
I-34-A
through I-63-A
|
|
35
|
I-35-A
through I-63-A
|
|
36
|
I-36-A
through I-63-A
|
|
37
|
I-37-A
through I-63-A
|
|
38
|
I-38-A
through I-63-A
|
|
39
|
I-39-A
through I-63-A
|
|
40
|
I-40-A
through I-63-A
|
|
41
|
I-41-A
through I-63-A
|
|
42
|
I-42-A
through I-63-A
|
|
43
|
I-43-A
through I-63-A
|
|
44
|
I-44-A
through I-63-A
|
|
45
|
I-45-A
through I-63-A
|
|
46
|
I-46-A
through I-63-A
|
|
47
|
I-47-A
through I-63-A
|
|
48
|
I-48-A
through I-63-A
|
|
49
|
I-49-A
through I-63-A
|
|
50
|
I-50-A
through I-63-A
|
|
51
|
I-51-A
through I-63-A
|
|
52
|
I-52-A
through I-63-A
|
|
53
|
I-53-A
through I-63-A
|
|
54
|
I-54-A
through I-63-A
|
|
55
|
I-55-A
through I-63-A
|
|
56
|
I-56-A
through I-63-A
|
|
57
|
I-57-A
through I-63-A
|
|
58
|
I-58-A
through I-63-A
|
|
59
|
I-59-A
through I-63-A
|
|
60
|
I-60-A
through I-63-A
|
|
61
|
I-61-A
through I-63-A
|
|
62
|
I-62-A
through I-63-A
|
|
63
|
I-63-A
|
|
thereafter
|
$0.00
|
With
respect to the Class IO Interest and any Distribution Date, an amount equal
to
the Notional Amount of the REMIC II Regular Interest IO.
“Ocwen”:
Ocwen
Loan Servicing, LLC or any successor thereto appointed hereunder in connection
with the servicing and administration of the Ocwen Mortgage Loans.
“Ocwen
Mortgage Loans”:
Those
Mortgage Loans serviced by Ocwen pursuant to the terms of this Agreement and
identified as such on the Mortgage Loan Schedule.
“Ocwen
Servicing Fee Rate”:
With
respect to each Ocwen Mortgage Loan, 0.19% per annum.
“Offered
Certificates”:
The
Class A Certificates and the Mezzanine Certificates, collectively.
“Officer’s
Certificate”:
With
respect to any Person, a certificate signed by the Chairman of the Board, the
Vice Chairman of the Board, the President or a vice president (however
denominated), or by the Treasurer, the Secretary, or one of the assistant
treasurers or assistant secretaries of such Person (or, in the case of a Person
that is not a corporation, signed by a person or persons having like
responsibilities).
“One-Month
LIBOR”:
With
respect to the Floating Rate Certificates and REMIC II Regular Interest A,
REMIC
II Regular Interest M-1B, REMIC II Regular Interest M-4, REMIC II Regular
Interest M-5, REMIC II Regular Interest M-6, REMIC II Regular Interest M-7,
REMIC II Regular Interest M-8, REMIC II Regular Interest M-9 and REMIC II
Regular Interest B-1 and any Interest Accrual Period therefor, the rate
determined by the Securities Administrator on the related Interest Determination
Date on the basis of the offered rate for one-month U.S. dollar deposits, as
such rate appears on Telerate Page 3750 as of 11:00 a.m. (London time) on such
Interest Determination Date; provided that if such rate does not appear on
Telerate Page 3750, the rate for such date will be determined on the basis
of
the offered rates of the Reference Banks for one-month U.S. dollar deposits,
as
of 11:00 a.m. (London time) on such Interest Determination Date. In such event,
the Securities Administrator will request the principal London office of each
of
the Reference Banks to provide a quotation of its rate. If on such Interest
Determination Date, two or more Reference Banks provide such offered quotations,
One-Month LIBOR for the related Interest Accrual Period shall be the arithmetic
mean of such offered quotations (rounded upwards if necessary to the nearest
whole multiple of 1/16). If on such Interest Determination Date, fewer than
two
Reference Banks provide such offered quotations, One-Month LIBOR for the related
Interest Accrual Period shall be the higher of (i) LIBOR as determined on the
previous Interest Determination Date and (ii) the Reserve Interest Rate.
Notwithstanding the foregoing, if, under the priorities described above, LIBOR
for an Interest Determination Date would be based on LIBOR for the previous
Interest Determination Date for the third consecutive Interest Determination
Date, the Securities Administrator shall select an alternative comparable index
(over which the Securities Administrator has no control), used for determining
one-month Eurodollar lending rates that is calculated and published (or
otherwise made available) by an independent party. The establishment of
One-Month LIBOR by the Securities Administrator and the Securities
Administrator’s subsequent calculation of the One-Month LIBOR Pass-Through Rates
for the relevant Interest Accrual Period, shall, in the absence of manifest
error, be final and binding.
“One-Month
LIBOR Pass-Through Rate”:
With
respect to the Class A Certificates and, for purposes of the definition of
“Marker Rate”, REMIC II Regular Interest A, a per annum rate equal to One-Month
LIBOR plus the Certificate Margin.
With
respect to the Class M-1B Certificates and, for purposes of the definition
of
“Marker Rate”, REMIC II Regular Interest M-1B, a per annum rate equal to
One-Month LIBOR plus the related Certificate Margin.
With
respect to the Class M-4 Certificates and, for purposes of the definition of
“Marker Rate”, REMIC II Regular Interest M-4, a per annum rate equal to
One-Month LIBOR plus the related Certificate Margin.
With
respect to the Class M-5 Certificates and, for purposes of the definition of
“Marker Rate”, REMIC II Regular Interest M-5, a per annum rate equal to
One-Month LIBOR plus the related Certificate Margin.
With
respect to the Class M-6 Certificates and, for purposes of the definition of
“Marker Rate”, REMIC II Regular Interest M-6, a per annum rate equal to
One-Month LIBOR plus the related Certificate Margin.
With
respect to the Class M-7 Certificates and, for purposes of the definition of
“Marker Rate”, REMIC II Regular Interest M-7, a per annum rate equal to
One-Month LIBOR plus the related Certificate Margin.
With
respect to the Class M-8 Certificates and, for purposes of the definition of
“Marker Rate”, REMIC II Regular Interest M-8, a per annum rate equal to
One-Month LIBOR plus the related Certificate Margin.
With
respect to the Class M-9 Certificates and, for purposes of the definition of
“Marker Rate”, REMIC II Regular Interest M-9, a per annum rate equal to
One-Month LIBOR plus the related Certificate Margin.
With
respect to the Class B-1 Certificates and, for purposes of the definition of
“Marker Rate”, REMIC II Regular Interest B-1, a per annum rate equal to
One-Month LIBOR plus the related Certificate Margin.
“Opinion
of Counsel”:
A
written opinion of counsel, who may, without limitation, be salaried counsel
for
the Depositor, the related Servicer, the Securities Administrator or the Master
Servicer, acceptable to the Trustee, except that any opinion of counsel relating
to (a) the qualification of any REMIC as a REMIC or (b) compliance with the
REMIC Provisions must be an opinion of Independent counsel.
“Optional
Termination Date”:
The
Distribution Date on which the aggregate principal balance of the Mortgage
Loans
(and properties acquired in respect thereof) remaining in the Trust Fund is
equal to or less than 10% of the aggregate principal balance of the Mortgage
Loans as of the Cut-off Date.
“Overcollateralization
Amount”:
With
respect to any Distribution Date, the excess, if any, of (a) the aggregate
Stated Principal Balances of the Mortgage Loans and REO Properties immediately
following such Distribution Date over (b) the sum of the aggregate Certificate
Principal Balances of the Class A Certificates, the Mezzanine Certificates,
the
Class B-1 Certificates and the Class P Certificates as of such Distribution
Date
(after taking into account the payment of the Principal Remittance Amount on
such Distribution Date).
“Overcollateralization
Increase Amount”:
With
respect to any Distribution Date, the amount of Net Monthly Excess Cashflow
actually applied as an accelerated payment of principal to the Class A
Certificates, the Mezzanine Certificates and the Class B-1 Certificates then
entitled to distributions of principal to the extent the Required
Overcollateralization Amount exceeds the Overcollateralization
Amount.
“Overcollateralization
Reduction Amount”:
With
respect to any Distribution Date, is the lesser of (i) the amount by which
the
Overcollateralization Amount exceeds the Required Overcollateralization Amount
and (ii) the Principal Remittance Amount; provided however that on any
Distribution Date on which a Trigger Event is in effect, the
Overcollateralization Reduction Amount shall equal zero.
“Ownership
Interest”:
As to
any Certificate, any ownership or security 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, as owner
or
as pledgee.
“P&I
Advance”:
As to
any Mortgage Loan or REO Property, any advance made by the related Servicer
in
respect of any Determination Date pursuant to Section 5.03 of this
Agreement, an Advance Financing Person pursuant to Section 3.25 of this
Agreement or in respect of any Distribution Date by a successor Servicer
(including the Master Servicer) pursuant to Section 8.02 of this Agreement
(which advances shall not include principal or interest shortfalls due to
bankruptcy proceedings or application of the Relief Act or similar state or
local laws).
“Pass-Through
Rate”:
With
respect to the Class A Certificates and any Distribution Date, a rate per annum
equal to the lesser of (i) the One-Month LIBOR Pass-Through Rate for such
Distribution Date and (ii) the Net WAC Pass-Through Rate for such Distribution
Date.
With
respect to the Class M-1A Certificates and any Distribution Date, a rate per
annum equal to the lesser of (i) 5.570% in the case of each Distribution Date
through and including the Optional Termination Date, or 6.070% in the case
of
any Distribution Date thereafter and (ii) the Net WAC Pass-Through Rate for
such
Distribution Date.
With
respect to the Class M-1B Certificates and any Distribution Date, a rate per
annum equal to the lesser of (i) the One-Month LIBOR Pass-Through Rate for
such
Distribution Date and (ii) the Net WAC Pass-Through Rate for such Distribution
Date.
With
respect to the Class M-2 Certificates and any Distribution Date, a rate per
annum equal to the lesser of (i) 5.610% in the case of each Distribution Date
through and including the Optional Termination Date, or 6.110%, in the case
of
any Distribution Date thereafter and (ii) the Net WAC Pass-Through Rate for
such
Distribution Date.
With
respect to the Class M-3 Certificates and any Distribution Date, a rate per
annum equal to the lesser of (i) 5.660% in the case of each Distribution Date
through and including the Optional Termination Date, or 6.160%, in the case
of
any Distribution Date thereafter and (ii) the Net WAC Pass-Through Rate for
such
Distribution Date.
With
respect to the Class M-4 Certificates and any Distribution Date, a rate per
annum equal to the lesser of (i) the One-Month LIBOR Pass-Through Rate for
such
Distribution Date and (ii) the Net WAC Pass-Through Rate for such Distribution
Date.
With
respect to the Class M-5 Certificates and any Distribution Date, a rate per
annum equal to the lesser of (i) the One-Month LIBOR Pass-Through Rate for
such
Distribution Date and (ii) the Net WAC Pass-Through Rate for such Distribution
Date.
With
respect to the Class M-6 Certificates and any Distribution Date, a rate per
annum equal to the lesser of (i) the One-Month LIBOR Pass-Through Rate for
such
Distribution Date and (ii) the Net WAC Pass-Through Rate for such Distribution
Date.
With
respect to the Class M-7 Certificates and any Distribution Date, a rate per
annum equal to the lesser of (i) the One-Month LIBOR Pass-Through Rate for
such
Distribution Date and (ii) the Net WAC Pass-Through Rate for such Distribution
Date.
With
respect to the Class M-8 Certificates and any Distribution Date, a rate per
annum equal to the lesser of (i) the One-Month LIBOR Pass-Through Rate for
such
Distribution Date and (ii) the Net WAC Pass-Through Rate for such Distribution
Date.
With
respect to the Class M-9 Certificates and any Distribution Date, a rate per
annum equal to the lesser of (i) the One-Month LIBOR Pass-Through Rate for
such
Distribution Date and (ii) the Net WAC Pass-Through Rate for such Distribution
Date.
With
respect to the Class B-1 Certificates and any Distribution Date, a rate per
annum equal to the lesser of (i) the One-Month LIBOR Pass-Through Rate for
such
Distribution Date and (ii) the Net WAC Pass-Through Rate for such Distribution
Date.
With
respect to the Class CE-1 Certificates and any Distribution Date, a rate per
annum equal to the percentage equivalent of a fraction, the numerator of which
is the sum of the amounts calculated pursuant to clauses (i) through (xv) below,
and the denominator of which is the aggregate Uncertificated Balances of REMIC
II Regular Interest AA, REMIC II Regular Interest A, REMIC II Regular Interest
M-1A, REMIC II Regular Interest M-1B, REMIC II Regular Interest M-2, REMIC
II
Regular Interest M-3, REMIC II Regular Interest M-4, REMIC II Regular Interest
M-5, REMIC II Regular Interest M-6, REMIC II Regular Interest M-7, REMIC II
Regular Interest M-8, REMIC II Regular Interest M-9, REMIC II Regular Interest
B-1 and REMIC II Regular Interest ZZ. For purposes of calculating the
Pass-Through Rate for the Class CE-1 Certificates, the numerator is equal to
the
sum of the following components:
(i) the
REMIC
II Remittance Rate for REMIC II Regular Interest AA minus the Marker Rate,
applied to an amount equal to the Uncertificated Balance of REMIC II Regular
Interest AA;
(ii) the
REMIC
II Remittance Rate for REMIC II Regular Interest A minus the Marker Rate,
applied to an amount equal to the Uncertificated Balance of REMIC II Regular
Interest A;
(iii) the
REMIC
II Remittance Rate for REMIC II Regular Interest M-1A minus the Marker Rate,
applied to an amount equal to the Uncertificated Balance of REMIC II Regular
Interest M-1A;
(iv) the
REMIC
II Remittance Rate for REMIC II Regular Interest M-1B minus the Marker Rate,
applied to an amount equal to the Uncertificated Balance of REMIC II Regular
Interest M-1B;
(v) the
REMIC
II Remittance Rate for REMIC II Regular Interest M-2 minus the Marker Rate,
applied to an amount equal to the Uncertificated Balance of REMIC II Regular
Interest M-2;
(vi) the
REMIC
II Remittance Rate for REMIC II Regular Interest M-3 minus the Marker Rate,
applied to an amount equal to the Uncertificated Balance of REMIC II Regular
Interest M-3;
(vii) the
REMIC
II Remittance Rate for REMIC II Regular Interest M-4 minus the Marker Rate,
applied to an amount equal to the Uncertificated Balance of REMIC II Regular
Interest M-4;
(viii) the
REMIC
II Remittance Rate for REMIC II Regular Interest M-5 minus the Marker Rate,
applied to an amount equal to the Uncertificated Balance of REMIC II Regular
Interest M-5;
(ix) the
REMIC
II Remittance Rate for REMIC II Regular Interest M-6 minus the Marker Rate,
applied to an amount equal to the Uncertificated Balance of REMIC II Regular
Interest M-6;
(x) the
REMIC
II Remittance Rate for REMIC II Regular Interest M-7 minus the Marker Rate,
applied to an amount equal to the Uncertificated Balance of REMIC II Regular
Interest M-7;
(xi) the
REMIC
II Remittance Rate for REMIC II Regular Interest M-8 minus the Marker Rate,
applied to an amount equal to the Uncertificated Balance of REMIC II Regular
Interest M-8;
(xii) the
REMIC
II Remittance Rate for REMIC II Regular Interest M-9 minus the Marker Rate,
applied to an amount equal to the Uncertificated Balance of REMIC II Regular
Interest M-9;
(xiii) the
REMIC
II Remittance Rate for REMIC II Regular Interest B-1 minus the Marker Rate,
applied to an amount equal to the Uncertificated Balance of REMIC II Regular
Interest B-1;
(xiv) the
REMIC
II Remittance Rate for REMIC II Regular Interest ZZ minus the Marker Rate,
applied to an amount equal to the Uncertificated Balance of REMIC II Regular
Interest ZZ; and
(xv) 100%
of
the interest on REMIC II Regular Interest P.
With
respect to the Class CE-2 Certificates and any Distribution Date, an amount
equal to 100% of the amounts distributed on REMIC II Regular Interest
CE-2.
“PCAOB”:
Means
the Public Company Accounting Oversight Board.
“Percentage
Interest”:
With
respect to any Class of Certificates (other than the Residual Certificates),
the
undivided percentage ownership in such Class evidenced by such Certificate,
expressed as a percentage, the numerator of which is the initial Certificate
Principal Balance represented by such Certificate and the denominator of which
is the aggregate initial Certificate Principal Balance or Notional Amount of
all
of the Certificates of such Class. The Class A Certificates, the Mezzanine
Certificates and the Class B-1 Certificates are issuable only in minimum
Percentage Interests corresponding to minimum initial Certificate Principal
Balances of $25,000 and integral multiples of $1.00 in excess thereof. The
Class
P Certificates are issuable only in Percentage Interests corresponding to
initial Certificate Principal Balances of $20 and integral multiples thereof.
The Class CE-1 Certificates and Class CE-2 Certificates are issuable only in
minimum Percentage Interests corresponding to minimum initial Notional Balances
of $10,000 and integral multiples of $1.00 in excess thereof; provided, however,
that a single Certificate of each such Class of Certificates may be issued
having a Percentage Interest corresponding to the remainder of the aggregate
initial Notional Balance of such Class or to an otherwise authorized
denomination for such Class plus such remainder. With respect to any Residual
Certificate, the undivided percentage ownership in such Class evidenced by
such
Certificate, as set forth on the face of such Certificate. The Residual
Certificates are issuable in Percentage Interests of 20% and integral multiples
of 5% in excess thereof.
“Permitted
Investments”:
Any
one or more of the following obligations or securities acquired at a purchase
price of not greater than par, regardless of whether issued by the Depositor,
Ocwen, the Master Servicer, the Trustee or any of their respective
Affiliates:
(i) direct
obligations of, or obligations fully guaranteed as to timely payment of
principal and interest by, the United States or any agency or instrumentality
thereof, provided such obligations are backed by the full faith and credit
of
the United States;
(ii) (A)
demand and time deposits in, certificates of deposit of, bankers’ acceptances
issued by or federal funds sold by any depository institution or trust company
(including the Trustee or its agent acting in their respective commercial
capacities) incorporated under the laws of the United States of America or
any
state thereof and subject to supervision and examination by federal and/or
state
authorities, so long as, at the time of such investment or contractual
commitment providing for such investment, such depository institution or trust
company (or, if the only Rating Agency is S&P, in the case of the principal
depository institution in a depository institution holding company, debt
obligations of the depository institution holding company) or its ultimate
parent has a short-term uninsured debt rating in the highest available rating
category of ▇▇▇▇▇’▇ and S&P and provided that each such investment has an
original maturity of no more than 365 days; and provided further that, if the
only Rating Agency is S&P and if the depository or trust company is a
principal subsidiary of a bank holding company and the debt obligations of
such
subsidiary are not separately rated, the applicable rating shall be that of
the
bank holding company; and, provided further that, if the original maturity
of
such short-term obligations of a domestic branch of a foreign depository
institution or trust company shall exceed 30 days, the short-term rating of
such
institution shall be A-1+ in the case of S&P if S&P is the Rating
Agency; and (B) any other demand or time deposit or deposit which is fully
insured by the FDIC;
(iii) repurchase
obligations with a term not to exceed 30 days with respect to any security
described in clause (i) above and entered into with a depository institution
or
trust company (acting as principal) rated A-1+ or higher by S&P and A2 or
higher by ▇▇▇▇▇’▇, provided, however, that collateral transferred pursuant to
such repurchase obligation must be of the type described in clause (i) above
and
must (A) be valued daily at current market prices plus accrued interest, (B)
pursuant to such valuation, be equal, at all times, to 105% of the cash
transferred by a party in exchange for such collateral and (C) be delivered
to
such party or, if such party is supplying the collateral, an agent for such
party, in such a manner as to accomplish perfection of a security interest
in
the collateral by possession of certificated securities;
(iv) securities
bearing interest or sold at a discount that are issued by any corporation
incorporated under the laws of the United States of America or any state thereof
and that are rated by each Rating Agency that rates such securities in its
highest long-term unsecured rating categories at the time of such investment
or
contractual commitment providing for such investment;
(v) commercial
paper (including both non-interest-bearing discount obligations and
interest-bearing obligations payable on demand or on a specified date not more
than 30 days after the date of acquisition thereof) that is rated by each Rating
Agency that rates such securities in its highest short-term unsecured debt
rating available at the time of such investment;
(vi) units
of
money market funds that have been rated “AAA” by S&P or “Aaa” by ▇▇▇▇▇’▇
including any such money market fund managed or advised by the Master Servicer,
the Trustee or any of their Affiliates; and
(vii) if
previously confirmed in writing to the Trustee, any other demand, money market
or time deposit, or any other obligation, security or investment, as may be
acceptable to the Rating Agencies as a permitted investment of funds backing
securities having ratings equivalent to its highest initial rating of the Class
A Certificates;
provided,
however, that no instrument described hereunder shall evidence either the right
to receive (a) only 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.
With
respect to GMAC, a Permitted Investment includes:
(i) direct
obligations of, and obligations fully guaranteed by, the United States of
America, or any agency or instrumentality of the United States of America the
obligations of which are backed by the full faith and credit of the United
States of America; or obligations fully guaranteed by, the United States of
America; ▇▇▇▇▇▇▇ Mac, ▇▇▇▇▇▇ ▇▇▇, the Federal Home Loan Banks or any agency
or
instrumentality of the United States of America rated AA or higher by the Rating
Agencies;
(ii) federal
funds, demand and time deposits in, certificates of deposits of, or bankers’
acceptances issued by, any depository institution or trust company incorporated
or organized under the laws of the United States of America or any state thereof
and subject to supervision and examination by federal and/or state banking
authorities, so long as at the time of such investment or contractual commitment
providing for such investment the commercial paper or other short-term debt
obligations of such depository institution or trust company (or, in the case
of
a depository institution or trust company which is the principal subsidiary
of a
holding company, the commercial paper or other short-term debt obligations
of
such holding company) are rated in one of two of the highest ratings by each
of
the Rating Agencies, and the long-term debt obligations of such depository
institution or trust company (or, in the case of a depository institution or
trust company which is the principal subsidiary of a holding company, the
long-term debt obligations of such holding company) are rated in one of two
of
the highest ratings, by each of the Rating Agencies;
(iii) repurchase
obligations with a term not to exceed 30 days with respect to any security
described in clause (i) above and entered into with a depository institution
or
trust company (acting as a principal) rated “A” or higher by ▇▇▇▇▇’▇, “A-1” or
higher by S&P; provided, however, that collateral transferred pursuant to
such repurchase obligation must be of the type described in clause (i) above
and
must (A) be valued daily at current market price plus accrued interest, (B)
pursuant to such valuation, be equal, at all times, to 105% of the cash
transferred by the Trustee in exchange for such collateral, and (C) be delivered
to the Trustee or, if the Trustee is supplying the collateral, an agent for
the
Trustee, in such a manner as to accomplish perfection of a security interest
in
the collateral by possession of certificated securities;
(iv) securities
bearing interest or sold at a discount issued by any corporation incorporated
under the laws of the United States of America or any state thereof which has
a
long-term unsecured debt rating in the highest available rating category of
each
of the Rating Agencies at the time of such investment;
(v) commercial
paper having an original maturity of less than 365 days and issued by an
institution having a short-term unsecured debt rating in the highest available
rating category of ▇▇▇▇▇’▇ and rated “A-1+” by S&P at the time of such
investment;
(vi) a
guaranteed investment contract approved by each of the Rating Agencies and
issued by an insurance company or other corporation having a long-term unsecured
debt rating in the highest available rating category of each of the Rating
Agencies at the time of such investment;
(vii) which
may
be 12b-1 funds as contemplated under the rules promulgated by the Securities
and
Exchange Commission under the Investment Company Act of 1940) having ratings
in
the highest available rating category of ▇▇▇▇▇’▇ and or “AAAm” or “AAAm-G” by
S&P at the time of such investment (any such money market funds which
provide for demand withdrawals being conclusively deemed to satisfy any maturity
requirements for Eligible Investments set forth herein) including money market
funds of a Servicer or the Trustee and any such funds that are managed by a
Servicer or the Trustee or their respective Affiliates or for a Servicer or
the
Trustee or any Affiliate of either acts as advisor, as long as such money market
funds satisfy the criteria of this subparagraph (vii); and
(viii) such
other investments the investment in which will not, as evidenced by a letter
from each of the Rating Agencies, result in the downgrading or withdrawal of
the
Ratings of the Certificates.
provided,
however, that no such instrument shall be a Permitted Investment if such
instrument evidences either (i) a right to receive only interest payments with
respect to the obligations underlying such instrument, or (ii) both principal
and interest payments derived from obligations underlying such instrument and
the principal and interest payments with respect to such instrument provide
a
yield to maturity of greater than 120% of the yield to maturity at par of such
underlying obligations.
“Permitted
Transferee”:
Any
Transferee of a Residual Certificate other than a Disqualified Organization
or
Non-United States Person.
“Person”:
Any
individual, limited liability company, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
“Plan”:
Any
employee benefit plan or certain other retirement plans and arrangements,
including individual retirement accounts and annuities, ▇▇▇▇▇ plans and bank
collective investment funds and insurance company general or separate accounts
in which such plans, accounts or arrangements are invested, that are subject
to
ERISA or Section 4975 of the Code.
“Prepayment
Assumption”:
A
prepayment rate of 35% CPR. The Prepayment Assumption is used solely for
determining the accrual of original issue discount on the Certificates for
federal income tax purposes. A CPR (or Constant Prepayment Rate) represents
an
annualized constant assumed rate of prepayment each month of a pool of mortgage
loans relative to its outstanding principal balance for the life of such pool.
“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.
“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 Schedule 2 (including the
prepayment charge summary attached thereto). The Depositor shall deliver or
cause the delivery of the Prepayment Charge Schedule to the related Servicer,
the Master Servicer and the Trustee on the Closing Date. The Prepayment Charge
Schedule shall set forth the following information with respect to each
Prepayment Charge:
(i) the
Mortgage Loan identifying number;
(ii) a
code
indicating the type of Prepayment Charge;
(iii) the
date
on which the first Monthly Payment was due on the related Mortgage
Loan;
(iv) the
term
of the related Prepayment Charge;
(v) the
original Stated Principal Balance of the related Mortgage Loan; and
(vi) the
Stated Principal Balance of the related Mortgage Loan as of the Cut-off
Date.
“Prepayment
Interest Excess”:
With
respect to each Mortgage Loan that was the subject of a Principal Prepayment
in
full during the portion of the related Prepayment Period occurring between
the
first day of the calendar month in which such Distribution Date occurs and
the
fourteenth (14th)
day of
the calendar month in which such Distribution Date occurs, an amount equal
to
interest (to the extent received) at the applicable Net Mortgage Rate on the
amount of such Principal Prepayment for the number of days commencing on the
first day of the calendar month in which such Distribution Date occurs and
ending on the last date through which interest is collected from the related
Mortgagor. The related Servicer may withdraw such Prepayment Interest Excess
from the related Collection Account in accordance with
Section 3.09(a)(x).
“Prepayment
Interest Shortfall”:
With
respect to any Distribution Date, for each such Mortgage Loan that was the
subject of a Principal Prepayment in full or in part during the portion of
the
related Prepayment Period occurring between the first day of the related
Prepayment Period and the last day of the calendar month preceding the month
in
which such Distribution Date occurs that was applied by the related Servicer
to
reduce the outstanding principal balance of such Mortgage Loan on a date
preceding the Due Date in the succeeding Prepayment Period, an amount equal
to
interest at the applicable Net Mortgage Rate on the amount of such Principal
Prepayment for the number of days commencing on the date on which the prepayment
is applied and ending on the last day of the calendar month preceding such
Distribution Date. The obligations of the related Servicer and the Master
Servicer in respect of any Prepayment Interest Shortfall are set forth in
Section 3.22 and Section 4.18, respectively of this Agreement.
“Prepayment
Period”:
With
respect to the first Distribution Date, the period beginning on the Cut-off
Date
and ending on the (15th)
day of
the month of such Distribution Date, and with respect to any Distribution Date
thereafter, the period beginning on the sixteenth (16th)
day of
the month preceding the related Distribution Date and ending on the fifteenth
(15th)
day of
the month in which such Distribution Date occurs.
“Principal
Distribution Amount”:
With
respect to any Distribution Date will be the sum of (i) the principal portion
of
all 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 pursuant to or as
contemplated by Section 2.03, Section 3.13(c) and Section 10.01
of this Agreement; (iii) the principal portion of all other unscheduled
collections, including Insurance Proceeds, Liquidation Proceeds and all
Principal Prepayments in full and in part, received during the related
Prepayment Period, to the extent applied as recoveries of principal on the
Mortgage Loans, net in each case of payments or reimbursements to the Trustee,
the Custodians, the Master Servicer, the Securities Administrator and the
Servicers and (iv) the amount of any Overcollateralization Increase Amount
for
such Distribution Date minus
(vi) the
amount of any Overcollateralization Reduction Amount for such Distribution
Date.
“Principal
Prepayment”:
Any
voluntary payment of principal made by the Mortgagor on a Mortgage Loan which
is
received in advance of its scheduled Due Date and which is not accompanied
by an
amount of interest representing the full amount of scheduled interest due on
any
Due Date in any month or months subsequent to the month of
prepayment.
“Principal
Remittance Amount”:
With
respect to any Distribution Date will be the sum of the amounts described in
clauses (i) through (iii) of the definition of Principal Distribution
Amount.
“Purchase
Price”:
With
respect to any Mortgage Loan or REO Property to be purchased pursuant to or
as
contemplated by Section 2.03, Section 3.13(c) or Section 10.01 of
this Agreement, and as confirmed by a certification of a Servicing Officer
of
the related Servicer to the Trustee, an amount equal to the sum of (i) 100%
of
the Stated Principal Balance thereof as of the date of purchase (or such other
price as provided in Section 10.01 of this Agreement), (ii) in the case of
(x) a Mortgage Loan, accrued interest on such Stated Principal Balance at the
applicable Net Mortgage Rate in effect from time to time from the Due Date
as to
which interest was last covered by a payment by the Mortgagor or a P&I
Advance by the related Servicer, which payment or P&I Advance had as of the
date of purchase been distributed pursuant to Section 5.01 of this
Agreement, through the end of the calendar month in which the purchase is to
be
effected and (y) an REO Property, the sum of (1) accrued interest on such Stated
Principal Balance at the applicable Net Mortgage Rate in effect from time to
time from the Due Date as to which interest was last covered by a payment by
the
Mortgagor or a P&I Advance by the related Servicer through the end of the
calendar month immediately preceding the calendar month in which such REO
Property was acquired, plus (2) REO Imputed Interest for such REO Property
for
each calendar month commencing with the calendar month in which such REO
Property was acquired and ending with the calendar month in which such purchase
is to be effected, net of the total of all net rental income, Insurance
Proceeds, Liquidation Proceeds and P&I Advances that as of the date of
purchase had been distributed as or to cover REO Imputed Interest pursuant
to
Section 5.01 of this Agreement, (iii) any unreimbursed Servicing Advances
and P&I Advances (including Nonrecoverable P&I Advances and
Nonrecoverable Servicing Advances) and any unpaid Servicing Fees allocable
to
such Mortgage Loan or REO Property, (iv) any amounts previously withdrawn from
the related Collection Account pursuant to Section 3.09(a)(ix) and
Section 3.13(b) of this Agreement and (v) in the case of a Mortgage Loan
required to be purchased pursuant to Section 2.03 of this Agreement,
expenses reasonably incurred or to be incurred by the related Servicer or the
Trustee in respect of the breach or defect giving rise to the purchase
obligation and any costs and damages incurred by the Trust Fund and the Trustee
in connection with any violation by any such Mortgage Loan of any predatory
or
abusive lending law.
“QIB”:
As
defined in Section 6.01(c).
“Qualified
Substitute Mortgage Loan”:
A
mortgage loan substituted for a Deleted Mortgage Loan pursuant to the terms
of
this Agreement which must, on the date of such substitution, (i) have an
outstanding principal balance, after application of all scheduled payments
of
principal and interest due during or prior to the month of substitution, not
in
excess of the Scheduled Principal Balance of the Deleted Mortgage Loan as of
the
Due Date in the calendar month during which the substitution occurs, (ii) have
a
fixed Mortgage Rate which is not less than (and not more than one percentage
point in excess of) the Mortgage Rate of the Deleted Mortgage Loan, (iii) have
a
remaining term to maturity not greater than (and not more than one year less
than) that of the Deleted Mortgage Loan, (iv) have the same Due Date as the
Due
Date on the Deleted Mortgage Loan, (v) have a Loan-to-Value Ratio or Combined
Loan-to Value Ratio, as applicable, as of the date of substitution equal to
or
lower than the Loan-to-Value Ratio or Combined Loan-to-Value Ratio, as
applicable, of the Deleted Mortgage Loan as of such date, (vi) be secured by
the
same lien priority on the related Mortgaged Property as the Deleted Loan, (vii)
have a credit grade at least equal to the credit grading assigned on the Deleted
Mortgage Loan, (viii) be a “qualified mortgage” as defined in the REMIC
Provisions and (ix) conform to each representation and warranty set forth in
Section 6 of the Mortgage Loan Purchase Agreement applicable to the Deleted
Mortgage Loan. In the event that one or more mortgage loans are substituted
for
one or more Deleted Mortgage Loans, the amounts described in clause (i) hereof
shall be determined on the basis of aggregate principal balances, the Mortgage
Rates described in clause (ii) hereof shall be determined on the basis of
weighted average Mortgage Rates, the terms described in clause (iii) hereof
shall be determined on the basis of weighted average remaining term to maturity,
the Loan-to-Value Ratios or Combined Loan-to-Value Ratios, as applicable,
described in clause (v) hereof shall be satisfied as to each such mortgage
loan,
the credit grades described in clause (vi) hereof shall be satisfied as to
each
such mortgage loan and, except to the extent otherwise provided in this
sentence, the representations and warranties described in clause (viii) hereof
must be satisfied as to each Qualified Substitute Mortgage Loan or in the
aggregate, as the case may be.
“Rate/Term
Refinancing”:
A
Refinanced Mortgage Loan, the proceeds of which are not more than a nominal
amount in excess of the existing first mortgage loan and any subordinate
mortgage loan on the related Mortgaged Property and related closing costs,
and
were used exclusively (except for such nominal amount) to satisfy the then
existing first mortgage loan and any subordinate mortgage loan of the Mortgagor
on the related Mortgaged Property and to pay related closing costs.
“Rating
Agency or Rating Agencies”:
▇▇▇▇▇’▇ and S&P or their successors. If such agencies or their successors
are no longer in existence, “Rating Agencies” shall be such nationally
recognized statistical rating agencies, or other comparable Persons, designated
by the Depositor, notice of which designation shall be given to the Trustee
and
the Servicers.
“Realized
Loss”:
With
respect to each Mortgage Loan as to which a Final Recovery Determination has
been made, an amount (not less than zero), as reported by the related Servicer
to the Master Servicer (in substantially the form of Schedule 4 hereto) equal
to
(i) the unpaid principal balance of such Mortgage Loan as of the commencement
of
the calendar month in which the Final Recovery Determination was made, plus
(ii)
accrued interest from the Due Date as to which interest was last paid by the
Mortgagor through the end of the calendar month in which such Final Recovery
Determination was made, calculated in the case of each calendar month during
such period (A) at an annual rate equal to the annual rate at which interest
was
then accruing on such Mortgage Loan and (B) on a principal amount equal to
the
Stated Principal Balance of such Mortgage Loan as of the close of business
on
the Distribution Date during such calendar month, plus (iii) any amounts
previously withdrawn from the related Collection Account in respect of such
Mortgage Loan pursuant to Section 3.09(a)(ix) and Section 3.13(b) of
this Agreement, minus (iv) the proceeds, if any, received in respect of such
Mortgage Loan during the calendar month in which such Final Recovery
Determination was made, net of amounts that are payable therefrom to the related
Servicer with respect to such Mortgage Loan pursuant to
Section 3.09(a)(iii) of this Agreement. Any Charged Off Loan will give rise
to a Realized Loss (calculated as if clause (iv) of the previous sentence is
equal to zero) at the time it is charged off, as described in Section
3.13(a)(iii) hereof.
With
respect to any REO Property as to which a Final Recovery Determination has
been
made, an amount (not less than zero) equal to (i) the unpaid principal balance
of the related Mortgage Loan as of the date of acquisition of such REO Property
on behalf of REMIC I, plus (ii) accrued interest from the Due Date as to which
interest was last paid by the Mortgagor in respect of the related Mortgage
Loan
through the end of the calendar month immediately preceding the calendar month
in which such REO Property was acquired, calculated in the case of each calendar
month during such period (A) at an annual rate equal to the annual rate at
which
interest was then accruing on the related Mortgage Loan and (B) on a principal
amount equal to the Stated Principal Balance of the related Mortgage Loan as
of
the close of business on the Distribution Date during such calendar month,
plus
(iii) REO Imputed Interest for such REO Property for each calendar month
commencing with the calendar month in which such REO Property was acquired
and
ending with the calendar month in which such Final Recovery Determination was
made, plus (iv) any amounts previously withdrawn from the related Collection
Account in respect of the related Mortgage Loan pursuant to
Section 3.09(a)(ix) and Section 3.13(b) of this Agreement, minus (v)
the aggregate of all P&I Advances and Servicing Advances (in the case of
Servicing Advances, without duplication of amounts netted out of the rental
income, Insurance Proceeds and Liquidation Proceeds described in clause (vi)
below) made by the related Servicer in respect of such REO Property or the
related Mortgage Loan for which the related Servicer has been or, in connection
with such Final Recovery Determination, will be reimbursed pursuant to
Section 3.21 of this Agreement out of rental income, Insurance Proceeds and
Liquidation Proceeds received in respect of such REO Property, minus (vi) the
total of all net rental income, Insurance Proceeds and Liquidation Proceeds
received in respect of such REO Property that has been, or in connection with
such Final Recovery Determination, will be transferred to the Distribution
Account pursuant to Section 3.21 of this Agreement.
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.
To
the
extent the related Servicer receives Subsequent Recoveries, with respect to
any
Mortgage Loan, the amount of Realized Loss with respect to that Mortgage Loan
will be reduced to the extent such recoveries are applied to reduce the
Certificate Principal Balance of any Class of Certificates on any Distribution
Date.
“Record
Date”:
With
respect to each Distribution Date and the Floating Rate Certificates, the
Business Day immediately preceding such Distribution Date for so long as such
Certificates are Book-Entry Certificates. With respect to each Distribution
Date
and the Fixed Rate Certificates, including any Floating Rate Certificates held
in Definitive Certificates, the last Business Day of the calendar month
immediately preceding the month in which such Distribution Date
occurs.
“Reference
Banks”:
Barclays Bank PLC, The Tokyo Mitsubishi Bank and National Westminster Bank
PLC
and their successors in interest; provided, however, that if any of the
foregoing banks are not suitable to serve as a Reference Bank, then any leading
banks selected by the Securities Administrator which are engaged in transactions
in Eurodollar deposits in the International Eurocurrency market (i) with an
established place of business in London, (ii) not controlling, under the control
of or under common control with the Depositor or any Affiliate thereof and
(iii)
which have been designated as such by the Securities Administrator.
“Refinanced
Mortgage Loan”:
A
Mortgage Loan the proceeds of which were not used to purchase the related
Mortgaged Property.
“Regular
Certificate”:
Any
Class A Certificate, Mezzanine Certificate, Class B-1 Certificate, Class CE-1
Certificate, Class CE-2 Certificate or Class P Certificate.
“Regular
Interest”:
A
“regular interest” in a REMIC within the meaning of Section 860G(a)(1) of
the Code.
“Regulation
AB”:
Means
Subpart 229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time
to
time.
“Relevant
Servicing Criteria”:
Means
the Servicing Criteria applicable to the various parties, as set forth on
Exhibit
E
attached
hereto. For clarification purposes, multiple parties can have responsibility
for
the same Relevant Servicing Criteria. With respect to a Servicing Function
Participant engaged by the Master Servicer, the Securities Administrator or
the
Servicer, the term “Relevant Servicing Criteria” may refer to a portion of the
Relevant Servicing Criteria applicable to such parties.
“Regulation
S Temporary Global Certificate”:
As
defined in Section 6.01(c).
“Regulation
S Permanent Global Certificate”:
As
defined in Section 6.01(c).
“Release
Date”:
The
fortieth (40th) day after the later of (i) commencement of the offering of
the
Class B-1 Certificates and (ii) the Closing Date.
“Released
Loan”:
Any
Charged Off Loan that is released by a Servicer to the Class CE-2
Certificateholders pursuant to Section 3.11(a), generally on the date that
is
six months after the date on which the related Servicer begins using Special
Servicing Practices on such Charged Off Loans. Any Released Loan will no longer
be an asset of any Trust REMIC or the Trust Fund.
“Relief
Act”:
The
Servicemembers Civil Relief Act, as amended.
“Relief
Act Interest Shortfall”:
With
respect to any Distribution Date and any Mortgage Loan, any reduction in the
amount of interest collectible on such Mortgage Loan for the most recently
ended
Due Period as a result of the application of the Relief Act or similar state
or
local laws.
“REMIC”:
A
“real estate mortgage investment conduit” within the meaning of
Section 860D of the Code.
“REMIC
I”:
The
segregated pool of assets subject hereto, constituting the primary trust created
hereby and to be administered hereunder, with respect to which a REMIC election
is to be made, consisting of: (i) such Mortgage Loans and Prepayment Charges
as
from time to time are subject to this Agreement, together with the Mortgage
Files relating thereto, and together with all collections thereon and proceeds
thereof; (ii) any REO Property, together with all collections thereon and
proceeds thereof; (iii) the Trustee’s rights with respect to the Mortgage Loans
under all insurance policies required to be maintained pursuant to this
Agreement and any proceeds thereof; (iv) the Depositor’s rights under the
Mortgage Loan Purchase Agreement (including any security interest created
thereby) and (v) the Collection Accounts, the Distribution Account and any
REO
Account, and such assets that are deposited therein from time to time and any
investments thereof, together with any and all income, proceeds and payments
with respect thereto. Notwithstanding the foregoing, however, REMIC I
specifically excludes (i) all payments and other collections of principal and
interest due on the Mortgage Loans on or before the Cut-off Date and all
Prepayment Charges payable in connection with Principal Prepayments made before
the Cut-off Date; and (ii) the Reserve Fund and any amounts on deposit therein
from time to time and any proceeds thereof; (iii) the Swap Agreement; and (iv)
the Supplemental Interest Trust.
“REMIC
I Regular Interest”:
Any of
the separate non-certificated beneficial ownership interests in REMIC I issued
hereunder and designated as a “regular interest” in REMIC I. Each REMIC I
Regular Interest shall accrue interest at the related REMIC I Remittance Rate
in
effect from time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount equal to
its
initial Uncertificated Balance as set forth in the Preliminary Statement hereto.
The designations for the respective REMIC I Regular Interests are set forth
in
the Preliminary Statement hereto.
“REMIC
I Remittance Rate”:
With
respect to REMIC I Regular Interest A-I, a per annum rate equal to the weighted
average of the Net Mortgage Rates of the Mortgage Loans. With respect to each
REMIC I Regular Interest ending with the designation “A”, a per annum rate equal
to the weighted average of the Net Mortgage Rates of the Mortgage Loans
multiplied by 2, subject to a maximum rate of 9.494%. With respect to each
REMIC
I Regular Interest ending with the designation “B”, the greater of (x) a per
annum rate equal to the excess, if any, of (i) 2 multiplied by the weighted
average of the Net Mortgage Rates of the Mortgage Loans over (ii) 9.494% and
(y)
0.00%. With respect to REMIC I Regular Interest I-CE-2, a weighted average
per
annum rate, determined on a Mortgage Loan by Mortgage Loan basis with respect
to
the Ocwen Mortgage Loans, equal to the excess, if any, of (i) the excess of
(a)
the Mortgage Rate for each such Mortgage Loan over (b) the sum of the (x) Ocwen
Servicing Fee Rate, (y) Master Servicing Fee Rate and (z) Credit Risk Management
Fee Rate, over (ii) the Net Mortgage Rate of each such Mortgage Loan. With
respect to REMIC I Regular Interest II-CE-2, a weighted average per annum rate,
determined on a Mortgage Loan by Mortgage Loan basis with respect to the GMAC
Mortgage Loans, equal to the excess, if any, of (i) the excess of (a) the
Mortgage Rate for each such Mortgage Loan over (b) the sum of the (x) GMAC
Servicing Fee Rate, (y) Master Servicing Fee Rate and (z) Credit Risk Management
Fee Rate, over (ii) the Net Mortgage Rate of each such Mortgage
Loan.
“REMIC
II Remittance Rate”:
With
respect to REMIC II Regular Interest AA, REMIC II Regular Interest A, REMIC
II
Regular Interest M-1A, REMIC II Regular Interest M-1B, REMIC II Regular Interest
M-2, REMIC II Regular Interest M-3, REMIC II Regular Interest M-4, REMIC II
Regular Interest M-5, REMIC II Regular Interest M-6, REMIC II Regular Interest
M-7, REMIC II Regular Interest M-8, REMIC II Regular Interest M-9, REMIC II
Regular Interest B-1 and REMIC II Regular Interest ZZ, a per annum rate (but
not
less than zero) equal to the weighted average of: (w) with respect to REMIC
I
Regular Interest A-I, the REMIC I Remittance Rate for such REMIC Regular
Interest for each such Distribution Date, (x) with respect to each REMIC I
Regular Interest ending with the designation “B”, the weighted average of the
REMIC I Remittance Rates for such REMIC I Regular Interests, weighted on the
basis of the Uncertificated Balances of such REMIC I Regular Interests for
each
such Distribution Date and (y) with respect to REMIC I Regular Interests ending
with the designation “A”, for each Distribution Date listed below, the weighted
average of the rates listed below for each such REMIC I Regular Interest listed
below, weighted on the basis of the Uncertificated Balances of each such REMIC
I
Regular Interest for each such Distribution Date:
|
Distribution
Date
|
REMIC
I Regular Interest
|
Rate
|
|
1
|
I-1-A
through I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
2
|
I-2-A
through I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
|
REMIC
I Remittance Rate
|
|
|
3
|
I-3-A
through I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
and I-2-A
|
REMIC
I Remittance Rate
|
|
|
4
|
I-4-A
through I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-3-A
|
REMIC
I Remittance Rate
|
|
|
5
|
I-5-A
through I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-4-A
|
REMIC
I Remittance Rate
|
|
|
6
|
I-6-A
through I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-5-A
|
REMIC
I Remittance Rate
|
|
|
7
|
I-7-A
through I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-6-A
|
REMIC
I Remittance Rate
|
|
|
8
|
I-8-A
through I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-7-A
|
REMIC
I Remittance Rate
|
|
|
9
|
I-9-A
through I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-8-A
|
REMIC
I Remittance Rate
|
|
|
10
|
I-10-A
through I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-9-A
|
REMIC
I Remittance Rate
|
|
|
11
|
I-11-A
through I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-10-A
|
REMIC
I Remittance Rate
|
|
|
12
|
I-12-A
through I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-11-A
|
REMIC
I Remittance Rate
|
|
|
13
|
I-13-A
through I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-12-A
|
REMIC
I Remittance Rate
|
|
|
14
|
I-14-A
through I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-13-A
|
REMIC
I Remittance Rate
|
|
|
15
|
I-15-A
through I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-14-A
|
REMIC
I Remittance Rate
|
|
|
16
|
I-16-A
through I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-15-A
|
REMIC
I Remittance Rate
|
|
|
17
|
I-17-A
through I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-16-A
|
REMIC
I Remittance Rate
|
|
|
18
|
I-18-A
through I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-17-A
|
REMIC
I Remittance Rate
|
|
|
19
|
I-19-A
through I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-18-A
|
REMIC
I Remittance Rate
|
|
|
20
|
I-20-A
through I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-19-A
|
REMIC
I Remittance Rate
|
|
|
21
|
I-21-A
through I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-20-A
|
REMIC
I Remittance Rate
|
|
|
22
|
I-22-A
through I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-21-A
|
REMIC
I Remittance Rate
|
|
|
23
|
I-23-A
through I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-22-A
|
REMIC
I Remittance Rate
|
|
|
24
|
I-24-A
through I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-23-A
|
REMIC
I Remittance Rate
|
|
|
25
|
I-25-A
through I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-24-A
|
REMIC
I Remittance Rate
|
|
|
26
|
I-26-A
through I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-25-A
|
REMIC
I Remittance Rate
|
|
|
27
|
I-27-A
through I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-26-A
|
REMIC
I Remittance Rate
|
|
|
28
|
I-28-A
through I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-27-A
|
REMIC
I Remittance Rate
|
|
|
29
|
I-29-A
through I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-28-A
|
REMIC
I Remittance Rate
|
|
|
30
|
I-30-A
through I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-29-A
|
REMIC
I Remittance Rate
|
|
|
31
|
I-31-A
through I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-30-A
|
REMIC
I Remittance Rate
|
|
|
32
|
I-32-A
through I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-31-A
|
REMIC
I Remittance Rate
|
|
|
33
|
I-33-A
through I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-32-A
|
REMIC
I Remittance Rate
|
|
|
34
|
I-34-A
through I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-33-A
|
REMIC
I Remittance Rate
|
|
|
35
|
I-35-A
through I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-34-A
|
REMIC
I Remittance Rate
|
|
|
36
|
I-36-A
through I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-35-A
|
REMIC
I Remittance Rate
|
|
|
37
|
I-37-A
through I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-36-A
|
REMIC
I Remittance Rate
|
|
|
38
|
I-38-A
through I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-37-A
|
REMIC
I Remittance Rate
|
|
|
39
|
I-39-A
through I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-38-A
|
REMIC
I Remittance Rate
|
|
|
40
|
I-40-A
through I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-39-A
|
REMIC
I Remittance Rate
|
|
|
41
|
I-41-A
through I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-40-A
|
REMIC
I Remittance Rate
|
|
|
42
|
I-42-A
through I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-41-A
|
REMIC
I Remittance Rate
|
|
|
43
|
I-43-A
through I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-42-A
|
REMIC
I Remittance Rate
|
|
|
44
|
I-44-A
through I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-43-A
|
REMIC
I Remittance Rate
|
|
|
45
|
I-45-A
through I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-44-A
|
REMIC
I Remittance Rate
|
|
|
46
|
I-46-A
through I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-45-A
|
REMIC
I Remittance Rate
|
|
|
47
|
I-47-A
through I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-46-A
|
REMIC
I Remittance Rate
|
|
|
48
|
I-48-A
through I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-47-A
|
REMIC
I Remittance Rate
|
|
|
49
|
I-49-A
through I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-48-A
|
REMIC
I Remittance Rate
|
|
|
50
|
I-50-A
through I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-49-A
|
REMIC
I Remittance Rate
|
|
|
51
|
I-51-A
through I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-50-A
|
REMIC
I Remittance Rate
|
|
|
52
|
I-52-A
through I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-51-A
|
REMIC
I Remittance Rate
|
|
|
53
|
I-53-A
through I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-52-A
|
REMIC
I Remittance Rate
|
|
|
54
|
I-54-A
through I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-53-A
|
REMIC
I Remittance Rate
|
|
|
55
|
I-55-A
through I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-52-A
|
REMIC
I Remittance Rate
|
|
|
56
|
I-56-A
through I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-55-A
|
REMIC
I Remittance Rate
|
|
|
57
|
I-57-A
through I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-56-A
|
REMIC
I Remittance Rate
|
|
|
58
|
I-58-A
through I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-57-A
|
REMIC
I Remittance Rate
|
|
|
59
|
I-59-A
through I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-58-A
|
REMIC
I Remittance Rate
|
|
|
60
|
I-60-A
through I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-59-A
|
REMIC
I Remittance Rate
|
|
|
61
|
I-61-A
through I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-60-A
|
REMIC
I Remittance Rate
|
|
|
62
|
I-62-A
through I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-61-A
|
REMIC
I Remittance Rate
|
|
|
63
|
I-63-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
I-1-A
through I-62-A
|
REMIC
I Remittance Rate
|
|
|
thereafter
|
I-1-A
through I-63-A
|
REMIC
I Remittance Rate
|
With
respect to REMIC II Regular Interest IO, and (i) the first Distribution Date
through the 63rd
Distribution Date, the excess of (x) the weighted average of the REMIC II
Remittance Rates for REMIC II Regular Interests including the designation “A”,
over (y) 2 multiplied by Swap LIBOR. and (ii) thereafter, 0.00%. With respect
to
REMIC II Regular Interest P, 0.00%.
“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
AA minus the Marker Rate, divided by (b) 12.
“REMIC
II Overcollateralization Amount”:
With
respect to any date of determination, (i) 1.00% of the aggregate Uncertificated
Balances of the REMIC II Regular Interests (other than the REMIC II Regular
Interest P) minus (ii) the aggregate of the Uncertificated Balances of REMIC
II
Remittance Rate for each of REMIC II Regular Interest A, REMIC II Regular
Interest M-1A, REMIC II Regular Interest M-1B, REMIC II Regular Interest M-2,
REMIC II Regular Interest M-3, REMIC II Regular Interest M-4, REMIC II Regular
Interest M-5, REMIC II Regular Interest M-6, REMIC II Regular Interest M-7,
REMIC II Regular Interest M-8, REMIC II Regular Interest M-9 and REMIC II
Regular Interest B-1, 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)
1.00% of 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 Balances of REMIC II Regular
Interest A, REMIC II Regular Interest M-1A, REMIC II Regular Interest M-1B,
REMIC II Regular Interest M-2, REMIC II Regular Interest M-3, REMIC II Regular
Interest M-4, REMIC II Regular Interest M-5, REMIC II Regular Interest M-6,
REMIC II Regular Interest M-7, REMIC II Regular Interest M-8, REMIC II Regular
Interest M-9 and REMIC II Regular Interest B-1 and the denominator of which
is
the aggregate of the Uncertificated Balances of REMIC II Regular Interest A,
REMIC II Regular Interest M-1A, REMIC II Regular Interest M-1B, REMIC II Regular
Interest M-2, REMIC II Regular Interest M-3, REMIC II Regular Interest M-4,
REMIC II Regular Interest M-5, REMIC II Regular Interest M-6, REMIC II Regular
Interest M-7, REMIC II Regular Interest M-8, REMIC II Regular Interest M-9
and
REMIC II Regular Interest B-1 and REMIC II Regular Interest ZZ.
“REMIC
II Regular Interest A”:
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 A shall accrue interest at the related REMIC II Remittance Rate in
effect from time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount equal to
its
initial Uncertificated Balance as set forth in the Preliminary Statement
hereto.
“REMIC
II Regular Interest 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 AA shall accrue interest at the related REMIC II Remittance Rate in
effect from time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount equal to
its
initial Uncertificated Balance as set forth in the Preliminary Statement
hereto.
“REMIC
II Regular Interest B-1”:
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 B-1 shall accrue interest at the related REMIC II Remittance Rate
in
effect from time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount equal to
its
initial Uncertificated Balance as set forth in the Preliminary Statement
hereto.
“REMIC
II Regular Interest CE-2”:
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 CE-2 shall accrue interest as set forth in the Preliminary Statement
hereto. REMIC II Regular Interest CE-2 shall not be entitled to distributions
of
principal.
“REMIC
II Regular Interest M-1A”:
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 M-1A shall accrue interest at the related REMIC II Remittance Rate
in
effect from time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount equal to
its
initial Uncertificated Balance as set forth in the Preliminary Statement
hereto.
“REMIC
II Regular Interest M-1B”:
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 M-1B shall accrue interest at the related REMIC II Remittance Rate
in
effect from time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount equal to
its
initial Uncertificated Balance as set forth in the Preliminary Statement
hereto.
“REMIC
II Regular Interest M-2”:
One of
the separate non-certificated beneficial ownership interests in REMIC II issued
hereunder and designated as a Regular Interest in REMIC II. REMIC I Regular
Interest M-2 shall accrue interest at the related REMIC II Remittance Rate
in
effect from time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount equal to
its
initial Uncertificated Balance as set forth in the Preliminary Statement
hereto.
“REMIC
II Regular Interest M-3”:
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 M-3 shall accrue interest at the related REMIC II Remittance Rate
in
effect from time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount equal to
its
initial Uncertificated Balance as set forth in the Preliminary Statement
hereto.
“REMIC
II Regular Interest M-4”:
One of
the separate non-certificated beneficial ownership interests in REMIC I issued
hereunder and designated as a Regular Interest in REMIC II. REMIC II Regular
Interest M-4 shall accrue interest at the related REMIC II Remittance Rate
in
effect from time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount equal to
its
initial Uncertificated Balance as set forth in the Preliminary Statement
hereto.
“REMIC
II Regular Interest M-5”:
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 M-5 shall accrue interest at the related REMIC II Remittance Rate
in
effect from time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount equal to
its
initial Uncertificated Balance as set forth in the Preliminary Statement
hereto.
“REMIC
II Regular Interest M-6”:
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 M-6 shall accrue interest at the related REMIC II Remittance Rate
in
effect from time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount equal to
its
initial Uncertificated Balance as set forth in the Preliminary Statement
hereto.
“REMIC
II Regular Interest M-7”:
One of
the separate non-certificated beneficial ownership interests in REMIC I issued
hereunder and designated as a Regular Interest in REMIC II. REMIC II Regular
Interest M-7 shall accrue interest at the related REMIC II Remittance Rate
in
effect from time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount equal to
its
initial Uncertificated Balance as set forth in the Preliminary Statement
hereto.
“REMIC
II Regular Interest M-8”:
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 M-8 shall accrue interest at the related REMIC II Remittance Rate
in
effect from time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount equal to
its
initial Uncertificated Balance as set forth in the Preliminary Statement
hereto.
“REMIC
II Regular Interest M-9”:
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 M-9 shall accrue interest at the related REMIC II Remittance Rate
in
effect from time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount equal to
its
initial Uncertificated Balance as set forth in the Preliminary Statement
hereto.
“REMIC
II Regular Interest 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 P shall accrue interest at the related REMIC II Remittance Rate in
effect from time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount equal to
its
initial Uncertificated Balance as set forth in the Preliminary Statement
hereto.
“REMIC
II Regular Interest 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 ZZ shall accrue interest at the related REMIC II Remittance Rate in
effect from time to time, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount equal to
its
initial Uncertificated Balance as set forth in the Preliminary Statement
hereto.
“REMIC
II Required Overcollateralization Amount”:
1.00%
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 2.07, 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
Regular Interests”:
The
REMIC I Regular Interests and REMIC II Regular Interests.
“REMIC
Remittance Rates”:
The
REMIC I Remittance Rate and the REMIC II Remittance Rate.
“REMIC
Provisions”:
Provisions of the federal income tax law relating to real estate mortgage
investment conduits, which appear at Section 860A through 860G of the Code,
and
related provisions, and proposed, temporary and final regulations and published
rulings, notices and announcements promulgated thereunder, as the foregoing
may
be in effect from time to time.
“Remittance
Report”:
A
report by the related Servicer pursuant to Section 5.03(a) of this
Agreement.
“Rents
from Real Property”:
With
respect to any REO Property, gross income of the character described in
Section 856(d) of the Code as being included in the term “rents from real
property.”
“REO
Account”:
The
account or accounts maintained, or caused to be maintained, by the related
Servicer in respect of an REO Property pursuant to Section 3.21 of this
Agreement.
“REO
Disposition”:
The
sale or other disposition of an REO Property on behalf of REMIC I.
“REO
Imputed Interest”:
As to
any REO Property, for any calendar month during which such REO Property was
at
any time part of REMIC I, one month’s interest at the applicable Net Mortgage
Rate on the Stated Principal Balance of such REO Property (or, in the case
of
the first such calendar month, of the related Mortgage Loan, if appropriate)
as
of the close of business on the Distribution Date in such calendar
month.
“REO
Principal Amortization”:
With
respect to any REO Property, for any calendar month, the excess, if any, of
(a)
the aggregate of all amounts received in respect of such REO Property during
such calendar month, whether in the form of rental income, sale proceeds
(including, without limitation, that portion of the Termination Price paid
in
connection with a purchase of all of the Mortgage Loans and REO Properties
pursuant to Section 10.01 of this Agreement that is allocable to such REO
Property) or otherwise, net of any portion of such amounts (i) payable in
respect of the proper operation, management and maintenance of such REO Property
or (ii) payable or reimbursable to the related Servicer pursuant to
Section 3.21(d) of this Agreement for unpaid Servicing Fees in respect of
the related Mortgage Loan and unreimbursed Servicing Advances and P&I
Advances in respect of such REO Property or the related Mortgage Loan, over
(b)
the REO Imputed Interest in respect of such REO Property for such calendar
month.
“REO
Property”:
A
Mortgaged Property acquired by the related Servicer or its nominee on behalf
of
REMIC I through foreclosure or deed-in-lieu of foreclosure, as described in
Section 3.21 of this Agreement.
“Reportable
Event”:
Has
the meaning set forth in Section 5.06(b) of this Agreement.
“Required
Overcollateralization Amount”:
With
respect to any Distribution Date (i) prior to the Stepdown Date, the product
of
(A) 8.80% and (B) the aggregate principal balance of the Mortgage Loans as
of
the Cut-off Date, (ii) on or after the Stepdown Date provided a Trigger Event
is
not in effect, the greater of (x) 17.60% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period
and
(y) an amount equal to the product of (A) 0.50% and (B) the aggregate principal
balance of the Mortgage Loans as of the Cut-off Date, and (iii) on or after
the
Stepdown Date and a Trigger Event is in effect, the Required
Overcollateralization Amount for the immediately preceding Distribution Date.
Notwithstanding the foregoing, on and after any Distribution Date following
the
reduction of the aggregate Certificate Principal Balance of the Class A
Certificates, Mezzanine Certificates and Class B-1 Certificates to zero, the
Required Overcollateralization Amount shall be zero.
“Reserve
Fund”:
A fund
created pursuant to Section 3.24 which shall be an asset of the Trust Fund
but which shall not be an asset of any Trust REMIC.
“Reserve
Interest Rate”:
With
respect to any Interest Determination Date, the rate per annum that the
Securities Administrator determines to be either (i) the arithmetic mean
(rounded upwards if necessary to the nearest whole multiple of 1/16%) of the
one-month U.S. dollar lending rates which New York City banks selected by the
Securities Administrator, after consultation with the Depositor, are quoting
on
the relevant Interest Determination Date to the principal London offices of
leading banks in the London interbank market or (ii) in the event that the
Securities Administrator can determine no such arithmetic mean, the lowest
one-month U.S. dollar lending rate which New York City banks selected by the
Securities Administrator are quoting on such Interest Determination Date to
leading European banks.
“Residential
Dwelling”:
Any
one of the following: attached, detached or semi-detached, one to four-family
dwelling units, individual condominium units and individual units in planned
unit developments
“Residual
Certificate”:
Any
one of the Class R Certificates.
“Residual
Interest”:
The
sole class of “residual interests” in a REMIC within the meaning of
Section 860G(a)(2) of the Code.
“Responsible
Officer”:
When
used with respect to the Trustee, any officer of the Trustee having direct
responsibility for the administration of this Agreement and, with respect to
a
particular matter, to whom such matter is referred because of such officer’s
knowledge of and familiarity with the particular subject.
“Rule
144A”:
As
defined in Section 6.01(c).
“S&P”:
Standard and Poor’s, a division of the ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
“▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act”:
Means
the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and regulations of the Commission
promulgated thereunder (including any interpretations thereof by the
Commission’s staff).
“▇▇▇▇▇▇▇▇-▇▇▇▇▇
Certification”:
Has
the meaning set forth in Section 3.19 of this Agreement.
“Scheduled
Principal Balance”:
With
respect to any Mortgage Loan: (a) as of the Cut-off Date, the outstanding
principal balance of such Mortgage Loan as of such date, net of the principal
portion of all unpaid Monthly Payments, if any, due on or before such date;
(b)
as of any Due Date subsequent to the Cut-off Date up to and including the Due
Date in the calendar month in which a Liquidation Event occurs with respect
to
such Mortgage Loan, the Scheduled Principal Balance of such Mortgage Loan as
of
the Cut-off Date, minus the sum of (i) the principal portion of each Monthly
Payment due on or before such Due Date but subsequent to the Cut-off Date,
whether or not received, (ii) all Principal Prepayments received before such
Due
Date but after the Cut-off Date, (iii) the principal portion of all Liquidation
Proceeds and Insurance Proceeds received before such Due Date but after the
Cut-off Date, net of any portion thereof that represents principal due (without
regard to any acceleration of payments under the related Mortgage and Mortgage
Note) on a Due Date occurring on or before the date on which such proceeds
were
received and (iv) any Realized Loss incurred with respect thereto as a result
of
a Deficient Valuation occurring before such Due Date, but only to the extent
such Realized Loss represents a reduction in the portion of principal of such
Mortgage Loan not yet due (without regard to any acceleration of payments under
the related Mortgage and Mortgage Note) as of the date of such Deficient
Valuation; and (c) as of any Due Date subsequent to the occurrence of a
Liquidation Event with respect to such Mortgage Loan, zero. With respect to
any
REO Property: (a) as of any Due Date subsequent to the date of its acquisition
on behalf of the Trust Fund up to and including the Due Date in the calendar
month in which a Liquidation Event occurs with respect to such REO Property,
an
amount (not less than zero) equal to the Scheduled Principal Balance of the
related Mortgage Loan as of the Due Date in the calendar month in which such
REO
Property was acquired, minus the aggregate amount of REO Principal Amortization,
if any, in respect of REO Property for all previously ended calendar months;
and
(b) as of any Due Date subsequent to the occurrence of a Liquidation Event
with
respect to such REO Property, zero.
“Securities
Act”:
The
Securities Act of 1933, as amended, and the rules and regulations
thereunder.
“Securities
Administrator”:
As of
the Closing Date, ▇▇▇▇▇ Fargo Bank, National Association and thereafter, its
respective successors in interest that meet the qualifications of this
Agreement. The Securities Administrator and the Master Servicer shall at all
times be the same Person or Affiliates.
“Senior
Interest Distribution Amount”:
With
respect to any Distribution Date, an amount equal to the sum of (i) the Interest
Distribution Amount for such Distribution Date for the Class A Certificates
and
(ii) the Interest Carry Forward Amount, if any, for such Distribution Date
for
the Class A Certificates.
“Servicer”:
GMAC
or Ocwen, or any successor thereto appointed hereunder in connection with the
servicing and administration of the related Mortgage Loans (collectively, the
“Servicers”).
“Servicer
Event of Default”:
One or
more of the events described in Section 8.01(a) of this
Agreement.
“Servicer
Remittance Date”:
With
respect to any Distribution Date, and (i) Ocwen, by 12:00 p.m. New York time
on
the 22nd
day of
the month in which such Distribution Date occurs; provided that if such
22nd
day of a
given month is not a Business Day, the Servicer Remittance Date applicable
to
Ocwen for such month shall be the Business Day immediately preceding such
22nd
day and
(ii) GMAC, by 12:00 p.m. New York time on the 18th day of the month in which
such Distribution Date occurs; provided that if such 18th day of a given month
is not a Business Day, the Servicer Remittance Date applicable to GMAC for
such
month shall be the Business Day immediately preceding such 18th day.
“Servicer
Report”:
A
report (substantially in the form of Schedule 5 hereto) or otherwise in form
and
substance acceptable to the Master Servicer and Securities Administrator on
an
electronic data file or tape prepared by the related Servicer pursuant to
Section 5.03(a) of this Agreement with such additions, deletions and
modifications as agreed to by the Master Servicer, the Securities Administrator
and the related Servicer.
“Service(s)(ing)”:
Means,
in accordance with Regulation AB, the act of servicing and administering the
Mortgage Loans or any other assets of the Trust by an entity that meets the
definition of “servicer’ set forth in Item 1101 of Regulation AB and is subject
to the disclosure requirements set forth in 1108 of Regulation AB. For
clarification purposes, any uncapitalized occurrence of this term shall have
the
meaning commonly understood by participants in the residential mortgage-backed
securitization market.
“Servicing
Advances”:
The
customary and reasonable “out-of-pocket” costs and expenses incurred prior to or
on or after the Cut-off Date (the amounts incurred prior to the Cut-off Date
shall be identified on the Servicing Advance Schedule by (a) the related
Servicer with respect to any
Mortgage Loans that were transferred to such Servicer prior to the Cut-off
Date
and/or (b) the Depositor with respect to any Mortgage Loans that were
transferred to the related Servicer after the Cut-off Date) by
such
Servicer in connection with a default, delinquency or other unanticipated event
by such Servicer in the performance of its servicing obligations, including,
but
not limited to, the cost of (i) the inspection, preservation, restoration and
protection of a Mortgaged Property, (ii) any enforcement or judicial
proceedings, including but not limited to foreclosures, in respect of a
particular Mortgage Loan, including any expenses incurred in relation to any
such proceedings that result from the Mortgage Loan being registered on the
MERS® System, (iii) the management (including reasonable fees in connection
therewith) and liquidation of any REO Property, (iv) the performance of its
obligations under Section 3.01, Section 3.07, Section 3.11,
Section 3.13 and Section 3.21 of this Agreement and (v) obtaining any
legal documentation required to be included in the Mortgage File and/or
correcting any outstanding title issues (i.e., any lien or encumbrance on the
Mortgaged Property that prevents the effective enforcement of the intended
lien
position) reasonably necessary for the related Servicer to perform its
obligations under this Agreement. Servicing Advances also include any reasonable
“out-of-pocket” cost and expenses (including legal fees) incurred by the related
Servicer in connection with executing and recording instruments of satisfaction,
deeds of reconveyance or Assignments to the extent not recovered from the
Mortgagor or otherwise payable under this Agreement. The Servicers shall not
be
required to make any Nonrecoverable Servicing Advances.
“Servicing
Advance Schedule”:
With
respect to any Servicing Advances incurred prior to the Cut-off Date, the
schedule or schedules provided by (a) the related Servicer with respect to
any
Mortgage Loans that were transferred to such Servicer prior to the Cut-off
Date
and/or (b) the Depositor with respect to any Mortgage Loans that were
transferred to the related Servicer after the Cut-off Date to the Master
Servicer and, if such schedule is provided by the Depositor, to the related
Servicer, on the date on which such Servicer seeks reimbursement for a Servicing
Advance made by the related Servicer, which schedule or schedules shall contain
the information set forth on Schedule 6.
“Servicing
Criteria”:
Means
the criteria set forth in paragraph (d) of Item 1122 of Regulation AB, as such
may be amended from time to time.
“Servicing
Fee”:
With
respect to each Mortgage Loan and for any calendar month, an amount equal to
one-twelfth of the product of the Servicing Fee Rate multiplied by the Scheduled
Principal Balance of the Mortgage Loans as of the Due Date in the preceding
calendar month. The Servicing Fee is payable solely from collections of interest
on the Mortgage Loans; provided, however, that Ocwen shall only be entitled
to a
portion of the Servicing Fee calculated on the Ocwen Mortgage Loans at the
Ocwen
Servicing Fee Rate and GMAC shall only be entitled to a portion of the Servicing
Fee calculated on the GMAC Mortgage Loans at the GMAC Servicing Fee
Rate.
“Servicing
Fee Rate”:
0.50%
per annum.
“Servicing
Function Participant”:
Means
any Sub-Servicer, Subcontractor or any other Person, other than each Servicer,
the Master Servicer, each Custodian, the Trustee and the Securities
Administrator, that is determined to be “participating in the servicing
function” within the meaning of Item 1122 of Regulation AB, unless such
Person’s activities relate only to 5% or less of the Mortgage
Loans.
“Servicing
Officer”:
Any
officer of the related Servicer or the Master Servicer involved in, or
responsible for, the administration and servicing of the related Mortgage Loans,
whose name and specimen signature appear on a list of Servicing Officers
furnished by the related Servicer or the Master Servicer to the Trustee, the
Master Servicer (in the case of a Servicer), the Securities Administrator and
the Depositor on the Closing Date, as such list may from time to time be
amended.
“Significant
Subsequent Recoveries”:
With
respect to a defaulted Mortgage Loan, a determination by the related Servicer
that either (A) the potential Subsequent Recoveries are anticipated to be
greater than or equal to the sum of (i) the total indebtedness of the senior
lien on the related Mortgaged Property and (ii) $10,000 (after anticipated
expenses and attorneys’ fees) or (B) the related Mortgagor has shown a
willingness and ability to pay over the previous six months.
“Single
Certificate”:
With
respect to any Class of Certificates (other than the Residual Certificates),
a
hypothetical Certificate of such Class evidencing a Percentage Interest for
such
Class corresponding to an initial Certificate Principal Balance of $1,000.
With
respect to the Residual Certificates, a hypothetical Certificate of such Class
evidencing a 100% Percentage Interest in such Class.
“Special
Servicing Practices”:
With
regard to any Charged Off Loans, the servicing of such Charged Off Loans using
specialized collection procedures (including foreclosure, if appropriate) to
maximize recoveries.
“Sponsor”:
DB
Structured Products, Inc. or its successor in interest, in its capacity as
seller under the Mortgage Loan Purchase Agreement.
“Startup
Day”:
With
respect to each Trust REMIC, the day designated as such pursuant to
Section 11.01(b) hereof.
“Stated
Principal Balance”:
With
respect to any Mortgage Loan: (a) as of any date of determination up to but
not
including the Distribution Date on which the proceeds, if any, of a Liquidation
Event with respect to such Mortgage Loan would be distributed, the Scheduled
Principal Balance of such Mortgage Loan as of the Cut-off Date, as shown in
the
Mortgage Loan Schedule, minus the sum of (i) the principal portion of each
Monthly Payment due on a Due Date subsequent to the Cut-off Date, to the extent
received from the Mortgagor or advanced by the related Servicer or a successor
to such Servicer (including the Master Servicer) and distributed pursuant to
Section 5.01 of this Agreement on or before such date of determination,
(ii) all Principal Prepayments received after the Cut-off Date, to the extent
distributed pursuant to Section 5.01 of this Agreement on or before such
date of determination, (iii) all Liquidation Proceeds and Insurance Proceeds
applied by the related Servicer as recoveries of principal in accordance with
the provisions of Section 3.13 of this Agreement, to the extent distributed
pursuant to Section 5.01 of this Agreement on or before such date of
determination, and (iv) any Realized Loss incurred with respect thereto as
a
result of a Deficient Valuation made during or prior to the Prepayment Period
for the most recent Distribution Date coinciding with or preceding such date
of
determination; and (b) as of any date of determination coinciding with or
subsequent to the Distribution Date on which the proceeds, if any, of a
Liquidation Event with respect to such Mortgage Loan would be distributed,
zero.
With respect to any REO Property: (a) as of any date of determination up to
but
not including the Distribution Date on which the proceeds, if any, of a
Liquidation Event with respect to such REO Property would be distributed, an
amount (not less than zero) equal to the Stated Principal Balance of the related
Mortgage Loan as of the date on which such REO Property was acquired on behalf
of REMIC I, minus the sum of (i) if such REO Property was acquired before the
Distribution Date in any calendar month, the principal portion of the Monthly
Payment due on the Due Date in the calendar month of acquisition, to the extent
advanced by the related Servicer, or a successor to such Servicer (including
the
Master Servicer) and distributed pursuant to Section 5.01 of this
Agreement, on or before such date of determination and (ii) the aggregate amount
of REO Principal Amortization in respect of such REO Property for all previously
ended calendar months, to the extent distributed pursuant to Section 4.01
of this Agreement on or before such date of determination; and (b) as of any
date of determination coinciding with or subsequent to the Distribution Date
on
which the proceeds, if any, of a Liquidation Event with respect to such REO
Property would be distributed, zero.
“Stepdown
Date”:
The
earlier to occur of (i) the later to occur of (x) the Distribution Date
occurring in February 2009 and (y) the first Distribution Date on which the
Credit Enhancement Percentage (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 Certificates then
entitled to distributions of principal on such Distribution Date), is greater
than or equal to approximately 68.90% and (ii) the first Distribution Date
on
which the aggregate Certificate Principal Balance of the Class A Certificates
has been reduced to zero.
“Subcontractor”:
As
defined in Section 3.02 of this Agreement.
“Subordinate
Certificates”:
Collectively, the Mezzanine Certificates, the Class B-1 Certificates and the
Class CE-1 Certificates.
“Subsequent
Recoveries”:
As of
any Distribution Date, amounts received during the related Prepayment Period
by
the related Servicer specifically related to a defaulted Mortgage Loan or
disposition of an REO Property prior to the related Prepayment Period that
resulted in a Realized Loss, (i) with respect to a Charged Off Loan, after
such
Mortgage Loan has been charged off by the related Servicer or (ii) with respect
to a Liquidated Mortgage Loan, after the liquidation or disposition of such
defaulted Mortgage Loan.
“Sub-Servicer”:
Means
any Person that (i) is considered to be a Servicing Function Participant, (ii)
services Mortgage Loans on behalf of any Servicer, the Master Servicer, the
Securities Administrator, the Trustee or any Custodian, and (iii) is responsible
for the performance (whether directly or through sub-servicers or
Subcontractors) of Servicing functions required to be performed under this
Agreement or any related Sub-Servicing Agreement that is identified in Item
1122(d) of Regulation AB.
“Sub-Servicing
Agreement”:
The
written contract between a Servicer and a Sub-Servicer relating to servicing
and
administration of certain Mortgage Loans as provided in Section 3.02 of
this Agreement.
“Substitution
Shortfall Amount”:
As
defined in Section 2.03 of this Agreement.
“Supplemental
Interest Trust”:
The
corpus of a trust created pursuant to Section 5.07 of this Agreement and
designated as the “Supplemental Interest Trust,” consisting of the Swap
Agreement, the Class IO Interest and the right to receive payments in respect
of
the Class IO Distribution Amount. For the avoidance of doubt, the Supplemental
Interest Trust does not constitute a part of the Trust Fund.
“Swap
Agreement”:
The
Interest Rate Swap Agreement, dated as of January 27, 2006, between HSBC
Bank USA, National Association, as trustee on behalf of the Supplemental
Interest Trust, and the Swap Provider, which agreement provides for Net Swap
Payments and Swap Termination Payments to be paid, as provided therein, together
with any schedules, confirmations or other agreements relating thereto. A copy
of the Swap Agreement is attached hereto as Exhibit
I.
“Swap
LIBOR”:
LIBOR
as determined pursuant to the Swap Agreement.
“Swap
Notional Amount”:
For
each calculation period as defined in the Swap Agreement, the amount set forth
below:
|
Distribution
Date
|
Swap
Notional
Amount
($)
|
|
February
2006
|
$ 362,883,345.00
|
|
March
2006
|
$ 340,885,478.00
|
|
April
2006
|
$ 320,219,657.00
|
|
May
2006
|
$ 300,805,297.00
|
|
June
2006
|
$ 282,566,684.00
|
|
July
2006
|
$ 265,432,682.00
|
|
August
2006
|
$ 249,336,456.00
|
|
September
2006
|
$ 234,215,209.00
|
|
October
2006
|
$ 220,009,944.00
|
|
November
2006
|
$ 206,665,228.00
|
|
December
2006
|
$ 194,128,983.00
|
|
January
2007
|
$ 182,352,276.00
|
|
February
2007
|
$ 171,289,137.00
|
|
March
2007
|
$ 160,896,373.00
|
|
April
2007
|
$ 151,133,405.00
|
|
May
2007
|
$ 141,962,107.00
|
|
June
2007
|
$ 133,346,661.00
|
|
July
2007
|
$ 125,253,412.00
|
|
August
2007
|
$ 117,650,744.00
|
|
September
2007
|
$ 110,508,952.00
|
|
October
2007
|
$ 103,800,128.00
|
|
November
2007
|
$ 97,498,052.00
|
|
December
2007
|
$ 91,578,091.00
|
|
January
2008
|
$ 86,017,103.00
|
|
February
2008
|
$ 80,793,345.00
|
|
March
2008
|
$ 75,886,390.00
|
|
April
2008
|
$ 71,277,047.00
|
|
May
2008
|
$ 66,947,288.00
|
|
June
2008
|
$ 62,880,172.00
|
|
July
2008
|
$ 59,059,789.00
|
|
August
2008
|
$ 55,471,187.00
|
|
September
2008
|
$ 52,100,322.00
|
|
October
2008
|
$ 48,933,998.00
|
|
November
2008
|
$ 45,959,820.00
|
|
December
2008
|
$ 43,166,142.00
|
|
January
2009
|
$ 40,542,024.00
|
|
February
2009
|
$ 38,077,186.00
|
|
March
2009
|
$ 35,761,975.00
|
|
April
2009
|
$ 33,587,318.00
|
|
May
2009
|
$ 31,544,694.00
|
|
June
2009
|
$ 29,626,097.00
|
|
July
2009
|
$ 27,824,006.00
|
|
August
2009
|
$ 26,131,356.00
|
|
September
2009
|
$ 24,541,510.00
|
|
October
2009
|
$ 23,048,233.00
|
|
November
2009
|
$ 21,645,666.00
|
|
December
2009
|
$ 20,328,308.00
|
|
January
2010
|
$ 19,090,989.00
|
|
February
2010
|
$ 17,928,854.00
|
|
March
2010
|
$ 16,837,340.00
|
|
April
2010
|
$ 15,812,162.00
|
|
May
2010
|
$ 14,849,309.00
|
|
June
2010
|
$ 13,944,983.00
|
|
July
2010
|
$ 13,095,632.00
|
|
August
2010
|
$ 12,297,920.00
|
|
September
2010
|
$ 11,548,711.00
|
|
October
2010
|
$ 10,845,060.00
|
|
November
2010
|
$ 10,184,203.00
|
|
December
2010
|
$ 9,563,540.00
|
|
January
2011
|
$ 8,980,631.00
|
|
February
2011
|
$ 8,433,182.00
|
|
March
2011
|
$ 7,919,041.00
|
|
April
2011
|
$ 7,436,183.00
|
“Swap
Provider”:
The
swap provider under the Swap Agreement either (a) entitled to receive payments
from the Supplemental Interest Trust or (b) required to make payments to the
Supplemental Interest Trust, in either case pursuant to the terms of the Swap
Agreement, and any successor in interest or assign. Initially, the Swap Provider
shall be Deutsche Bank AG New York Branch.
“Swap
Provider Trigger Event”:
A Swap
Provider Trigger Event shall have occurred if any of the following has occurred:
(i) an Event of Default under the Swap Agreement with respect to which the
Swap
Provider is a Defaulting Party (as defined in the Swap Agreement), (ii) a
Termination Event under the Swap Agreement with respect to which the Swap
Provider is the sole Affected Party (as defined in the Swap Agreement) or (iii)
an Additional Termination Event under the Swap Agreement with respect to which
the Swap Provider is the sole Affected Party.
“Swap
Termination Payment”:
Upon
the designation of an “Early Termination Date” as defined in the Swap Agreement,
the payment to be made by the Supplemental Interest Trust to the Swap Provider,
or by the Swap Provider to the Supplemental Interest Trust, as applicable,
pursuant to the terms of the Swap Agreement.
“Tax
Returns”:
The
federal income tax return on Internal Revenue Service Form 1066, U.S. Real
Estate Mortgage Investment Conduit Income Tax Return, including Schedule Q
thereto, Quarterly Notice to Residual Interest Holders of REMIC Taxable Income
or Net Loss Allocation, or any successor forms, to be filed on behalf of the
Trust REMICs under the REMIC Provisions, together with any and all other
information reports or returns that may be required to be furnished to the
Certificateholders or filed with the Internal Revenue Service or any other
governmental taxing authority under any applicable provisions of federal, state
or local tax laws.
“Telerate
Page 3750”:
The
display designated as page “3750” on the Dow ▇▇▇▇▇ Telerate Capital Markets
Report (or such other page as may replace page 3750 on that report for the
purpose of displaying London interbank offered rates of major
banks).
“Termination
Price”:
As
defined in Section 10.01.
“Terminator”:
As
defined in Section 10.01.
“Transfer”:
Any
direct or indirect transfer, sale, pledge, hypothecation, or other form of
assignment of any Ownership Interest in a Certificate.
“Transferee”:
Any
Person who is acquiring by Transfer any Ownership Interest in a
Certificate.
“Transferor”:
Any
Person who is disposing by Transfer of any Ownership Interest in a
Certificate.
“Trigger
Event”:
A
Trigger Event has occurred with respect to a Distribution Date if either (x)
the
Delinquency Percentage exceeds 8.00% of the Credit Enhancement Percentage of
the
Class A Certificates with respect to such 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 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
|
|
|
February
2008 to January 2009
|
2.90%,
plus 1/12 of 3.65% for each month thereafter
|
|
|
February
2009 to January 2010
|
6.55%,
plus 1/12 of 3.60% for each month thereafter
|
|
|
February
2010 to January 2011
|
10.15%,
plus 1/12 of 1.35% for each month thereafter
|
|
|
February
2011 to January 2012
|
11.50%
plus 1/12 of 0.75% for each month thereafter
|
|
|
February
2012 and thereafter
|
12.25%
|
“Trust”:
ACE
Securities Corp., Home Equity Loan Trust, Series 2006-SL1, the trust created
hereunder.
“Trust
Fund”:
Collectively, all of the assets of REMIC I, REMIC II, REMIC III and the Reserve
Fund and any amounts on deposit therein and any proceeds thereof. For avoidance
of doubt, the Trust Fund does not include the Supplemental Interest
Trust.
“Trust
REMIC”:
REMIC
I, REMIC II or REMIC III.
“Trustee”:
HSBC
Bank USA, National Association a national banking association, or its successor
in interest, or any successor trustee appointed as herein provided.
“Uncertificated
Balance”:
The
amount of the REMIC Regular Interests outstanding as of any date of
determination. As of the Closing Date, the Uncertificated Balance of each REMIC
Regular Interest shall equal the amount set forth in the Preliminary Statement
hereto as its initial uncertificated balance. On each Distribution Date, the
Uncertificated Balance of the REMIC Regular Interests shall be reduced by all
distributions of principal made on such REMIC Regular Interest on such
Distribution Date pursuant to Section 5.01 of this Agreement and, if and to
the
extent necessary and appropriate, shall be further reduced on such Distribution
Date by Realized Losses as provided in Section 5.04 of this Agreement and the
Uncertificated Balance of REMIC II Regular Interest ZZ shall be increased by
interest deferrals as provided in Section 5.01 of this Agreement. The
Uncertificated Balance of each REMIC Regular Interest shall never be less than
zero.
“Uncertificated
Interest”:
With
respect to any REMIC Regular Interest for any Distribution Date, one month’s
interest at the REMIC Remittance Rate applicable to such REMIC Regular Interest
for such Distribution Date, accrued on the Uncertificated Balance thereof
immediately prior to such Distribution Date. Uncertificated Interest in respect
of the REMIC Regular Interests shall accrue on the basis of a 360-day year
consisting of twelve 30-day months. Uncertificated Interest with respect to
each
Distribution Date, as to any REMIC Regular Interest, shall be reduced by an
amount equal to the sum of (a) the aggregate Prepayment Interest Shortfall,
if
any, for such Distribution Date to the extent not covered by payments pursuant
to Section 3.22 or Section 4.18 of this Agreement and (b) the aggregate amount
of any Relief Act Interest Shortfall, if any allocated, in each case, to such
REMIC Regular Interest or REMIC Regular Interest pursuant to Section 1.02 of
this Agreement. In addition, Uncertificated Interest with respect to each
Distribution Date, as to any REMIC Regular Interest, shall be reduced by
Realized Losses, if any, allocated to such REMIC Regular Interest pursuant
to
Section 1.02 and Section 5.04 of this Agreement.
“Uninsured
Cause”:
Any
cause of damage to a Mortgaged Property such that the complete restoration
of
such property is not fully reimbursable by the hazard insurance policies
required to be maintained pursuant to Section 3.11 of this
Agreement.
“United
States Person”:
A
citizen or resident of the United States, a corporation, partnership or other
entity created or organized in, or under the laws of, the United States or
any
political subdivision thereof (except, in the case of a partnership, to the
extent provided in regulations) provided that, for purposes solely of the
restrictions on the transfer of any Class R Certificate, no partnership or
other
entity treated as a partnership for United States federal income tax purposes
shall be treated as a United States Person unless all persons that own an
interest in such partnership either directly or through any entity that is
not a
corporation for United States federal income tax purposes are required to be
United States Persons, or an estate whose income is subject to United States
federal income tax regardless of its source, 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 the authority to control
all substantial decisions of the trust. To the extent prescribed in regulations
by the Secretary of the Treasury, a trust which was in existence on August
20,
1996 (other than a trust treated as owned by the grantor under subpart E of
part
I of subchapter J of chapter I of the Code), and which was treated as a United
States person on August 20, 1996 may elect to continue to be treated as a United
States person notwithstanding the previous sentence. The term “United States”
shall have the meaning set forth in Section 7701 of the Code.
“Value”:
With
respect to any Mortgaged Property, the lesser of (i) the lesser of (a) the
value
thereof as determined by an appraisal made for the related originator of the
Mortgage Loan at the time of origination of the Mortgage Loan by an appraiser
who met the minimum requirements of ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac and (b) the
value
thereof as determined by a review appraisal conducted by the related originator
of the Mortgage Loan in accordance with the related originator’s underwriting
guidelines, and (ii) the purchase price paid for the related Mortgaged Property
by the Mortgagor with the proceeds of the Mortgage Loan; provided, however,
(A)
in the case of a Refinanced Mortgage Loan, such value of the Mortgaged Property
is based solely upon the lesser of (1) the value determined by an appraisal
made
for the related originator of the Mortgage Loan of such Refinanced Mortgage
Loan
at the time of origination of such Refinanced Mortgage Loan by an appraiser
who
met the minimum requirements of ▇▇▇▇▇▇ Mae and ▇▇▇▇▇▇▇ Mac and (2) the value
thereof as determined by a review appraisal conducted by the related originator
of the Mortgage Loan in accordance with the related originator’s underwriting
guidelines, and (B) in the case of a Mortgage Loan originated in connection
with
a “lease-option purchase,” such value of the Mortgaged Property is based on the
lower of the value determined by an appraisal made for the originator of such
Mortgage Loan at the time of origination or the sale price of such Mortgaged
Property if the “lease option purchase price” was set less than twelve (12)
months prior to origination, and is based on the value determined by an
appraisal made for the related originator of such Mortgage Loan at the time
of
origination if the “lease option purchase price” was set twelve (12) months or
more prior to origination.
“Verification
Report”:
As
defined in Section 4.19.
“Voting
Rights”:
The
portion of the voting rights of all of the Certificates which is allocated
to
any such Certificate. With respect to any date of determination, 98% of all
Voting Rights will be allocated among the holders of the Class A Certificates,
the Mezzanine Certificates and the Class CE-1 Certificates in proportion to
the
then outstanding Certificate Principal Balances of their respective
Certificates, 1% of all Voting Rights will be allocated among the holders of
the
Class P Certificates and 1% of all Voting Rights will be allocated among the
holders of the Class R Certificates. The Voting Rights allocated to each Class
of Certificate shall be allocated among holders of each such Class in accordance
with their respective Percentage Interests as of the most recent Record
Date.
“▇▇▇▇▇
Fargo”:
▇▇▇▇▇
Fargo Bank, National Association or any successor thereto.
“▇▇▇▇▇
Fargo Custodial Agreement”:
The
Custodial Agreement dated as of January 1, 2006, among the Trustee, ▇▇▇▇▇ Fargo
and Ocwen, as may be amended or supplemented from time to time.
SECTION
1.02. Allocation
of Certain Interest Shortfalls.
For
purposes of calculating the amount of Accrued Certificate Interest and the
amount of the Interest Distribution Amount for the Class A Certificates, the
Mezzanine Certificates, the Class B-1 Certificates and the Class CE-1
Certificates for any Distribution Date, (1) the aggregate amount of any
Prepayment Interest Shortfalls (to the extent not covered by payments by the
Servicers pursuant to Section 3.22 of this Agreement or by the Master
Servicer pursuant to Section 4.18 of this Agreement) and any Relief Act
Interest Shortfalls incurred in respect of the Mortgage Loans for any
Distribution Date shall be allocated first,
to the
Class CE-1 Certificates, second,
to the
Class B-1 Certificates, third,
to the
Class M-9 Certificates, fourth,
to the
Class M-8 Certificates, fifth,
to the
Class M-7 Certificates, sixth,
to the
Class M-6 Certificates, seventh,
to the
Class M-5 Certificates, eighth,
to the
Class M-4 Certificates, ninth,
to the
Class M-3 Certificates, tenth,
to the
Class M-2 Certificates, eleventh,
to the
Class M-1 Certificates and twelfth,
to the
Class A Certificates on a pro
rata
basis,
in each case 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 Class B-1 Certificates,
the Mezzanine Certificates and Net WAC Rate Carryover Amounts paid to the Class
A Certificates, the Mezzanine Certificates and the Class B-1 Certificates
incurred for any Distribution Date shall be allocated to the Class CE-1
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 thereof, as applicable.
For
purposes of calculating the amount of Uncertificated Interest for the REMIC
I
Regular Interests for any Distribution Date, the aggregate amount of any
Prepayment Interest Shortfalls (to the extent not covered by payments by the
Servicers pursuant to Section 3.22 of this Agreement or the Master Servicer
pursuant to Section 4.18) and any Relief Act Interest Shortfalls incurred in
respect of Mortgage Loans shall be allocated first, to the REMIC I Regular
Interest A-I and to the REMIC I Regular Interests ending with the designation
“B”, pro
rata
based
on, and to the extent of, one month’s interest at the then applicable respective
REMIC I Remittance Rates on the respective Uncertificated Balances of each
such
REMIC I Regular Interest, and then, to REMIC I Regular Interests ending with
the
designation “A”, pro rata based on, and to the extent of, one month’s interest
at the then applicable respective REMIC I Remittance Rates on the respective
Uncertificated Balances of each such REMIC I Regular Interest.
For
purposes of calculating the amount of Uncertificated Interest for the REMIC
II
Regular Interests for any Distribution Date: the aggregate amount of any
Prepayment Interest Shortfalls (to the extent not covered by payments by the
Servicers pursuant to Section 3.22 of this Agreement or the Master Servicer
pursuant to Section 4.18 of this Agreement) and any Relief Act Interest
Shortfalls incurred in respect of the Mortgage Loans for any Distribution Date
shall be allocated among REMIC II Regular Interest AA, REMIC II Regular Interest
A, REMIC II Regular Interest M-1A, REMIC II Regular Interest M-1B, REMIC II
Regular Interest M-2, REMIC II Regular Interest M-3, REMIC II Regular Interest
M-4, REMIC II Regular Interest M-5, REMIC II Regular Interest M-6, REMIC II
Regular Interest M-7, REMIC II Regular Interest M-8, REMIC II Regular Interest
M-9, REMIC II Regular Interest B-1 and REMIC II Regular Interest ZZ pro rata
based on, and to the extent of, one month’s interest at the then applicable
respective REMIC II Remittance Rate on the respective Uncertificated Balance
of
each such REMIC II Regular Interest.
ARTICLE
II
CONVEYANCE
OF MORTGAGE LOANS;
ORIGINAL
ISSUANCE OF CERTIFICATES
SECTION
2.01. Conveyance
of the Mortgage Loans.
The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey to the Trustee, on behalf of
the
Trust, without recourse, for the benefit of the Certificateholders, all the
right, title and interest of the Depositor, including any security interest
therein for the benefit of the Depositor, in and to the Mortgage Loans
identified on the Mortgage Loan Schedule, the rights of the Depositor under
the
Mortgage Loan Purchase Agreement (including, without limitation the right to
enforce the obligations of the other parties thereto thereunder), the right
to
any Net Swap Payment and any Swap Termination Payment made by the Swap Provider
and all other assets included or to be included in REMIC I. Such assignment
includes all interest and principal received by the Depositor and the Servicers
on or with respect to the Mortgage Loans (other than payments of principal
and
interest due on such Mortgage Loans on or before the Cut-off Date). The
Depositor herewith delivers to the Trustee and each Servicer a copy of the
Mortgage Loan Purchase Agreement is attached hereto as Exhibit F.
In
connection with such transfer and assignment, the Depositor does hereby deliver
to, and deposit with the Custodian pursuant to the related Custodial Agreement
the documents with respect to each Mortgage Loan as described under
Section 2 of the related Custodial Agreement (the “Mortgage Loan
Documents”). In connection with such delivery and as further described in the
related Custodial Agreement, the related Custodians will be required to review
such Mortgage Loan Documents and deliver to the Trustee, the Depositor, each
Servicer and the Sponsor certifications (in the forms attached to the related
Custodial Agreement) with respect to such review with exceptions noted thereon.
In addition, under the Custodial Agreements the Depositor will be required
to
cure certain defects with respect to the Mortgage Loan Documents for the related
Mortgage Loans after the delivery thereof by the Depositor to the Custodians
as
more particularly set forth therein.
Notwithstanding
anything to the contrary contained herein, the parties hereto acknowledge that
the functions of the Trustee with respect to the custody, acceptance, inspection
and release of the Mortgage Files, including, but not limited to certain
insurance policies and documents contemplated by Section 4.11 of this
Agreement, and preparation and delivery of the certifications shall be performed
by the Custodians pursuant to the terms and conditions of the Custodial
Agreements.
The
Depositor shall deliver or cause the related originator to deliver to the
related Servicer copies of all trailing documents required to be included in
the
related Mortgage File at the same time the originals or certified copies thereof
are delivered to the Trustee or Custodians, such documents including the
mortgagee policy of title insurance and any Mortgage Loan Documents upon return
from the recording office. The Servicers shall not be responsible for any
custodian fees or other costs incurred in obtaining such documents and the
Depositor shall cause the Servicers to be reimbursed for any such costs the
Servicers may incur in connection with performing their obligations under this
Agreement.
The
Mortgage Loans permitted by the terms of this Agreement to be included in the
Trust are limited to (i) Mortgage Loans (which the Depositor acquired pursuant
to the Mortgage Loan Purchase Agreement, which contains, among other
representations and warranties, a representation and warranty of the Sponsor
that no Mortgage Loan is a “High-Cost Home Loan” as defined in the New Jersey
Home Ownership Act effective November 27, 2003 or as defined in the New Mexico
Home Loan Protection Act effective January 1, 2004, as defined in the
Massachusetts Predatory Home Loan Practices Act, effective November 7, 2004
(Mass. ▇▇▇. Laws Ch. 183C) or as defined in the Indiana Home Loan Practices
Act,
effective January 1, 2005 (Ind. Code ▇▇▇. Sections 24-9-1 through 24-9-9))
and
(ii) Qualified Substitute Mortgage Loans (which, by definition as set forth
herein and referred to in the Mortgage Loan Purchase Agreement, are required
to
conform to, among other representations and warranties, the representation
and
warranty of the Sponsor that no Qualified Substitute Mortgage Loan is a
“High-Cost Home Loan” as defined in the New Jersey Home Ownership Act effective
November 27, 2003 or as defined in the New Mexico Home Loan Protection Act
effective January 1, 2004, as defined in the Massachusetts Predatory Home Loan
Practices Act, effective November 7, 2004 (Mass. ▇▇▇. Laws Ch. 183C) or as
defined in the Indiana Home Loan Practices Act, effective January 1, 2005 (Ind.
Code ▇▇▇. Sections 24-9-1 through 24-9-9). The Depositor and the Trustee on
behalf of the Trust understand and agree that it is not intended that any
Mortgage Loan be included in the Trust that is a “High-Cost Home Loan” as
defined in the New Jersey Home Ownership Act effective November 27, 2003, as
defined in the New Mexico Home Loan Protection Act effective January 1, 2004,
as
defined in the Massachusetts Predatory Home Loan Practices Act, effective
November 7, 2004 (Mass. ▇▇▇. Laws Ch. 183C) or as defined in the Indiana Home
Loan Practices Act, effective January 1, 2005 (Ind. Code ▇▇▇. Sections 24-9-1
through 24-9-9).
SECTION
2.02. Acceptance
of REMIC I by Trustee.
The
Trustee acknowledges receipt, subject to the provisions of Section 2.01
hereof and Section 2 of the related Custodial Agreement, of the Mortgage
Loan Documents and all other assets included in the definition of “REMIC I”
under clauses (i), (iii), (iv) and (v) (to the extent of amounts deposited
into
the Distribution Account) and declares that it holds (or the applicable
Custodian on its behalf holds) and will hold such documents and the other
documents delivered to it constituting a Mortgage Loan Document, and that it
holds (or the applicable Custodian on its behalf holds) or will hold all such
assets and such other assets included in the definition of “REMIC I” in trust
for the exclusive use and benefit of all present and future
Certificateholders.
SECTION
2.03. Repurchase
or Substitution of Mortgage Loans.
(a) Upon
discovery or receipt of notice of any materially defective document in, or
that
a document is missing from, a Mortgage File or of a breach by the Sponsor of
any
representation, warranty or covenant under the Mortgage Loan Purchase Agreement
in respect of any Mortgage Loan that materially and adversely affects the value
of such Mortgage Loan or the interest therein of the Certificateholders, the
Trustee shall promptly notify the Sponsor and the related Servicer of such
defect, missing document or breach and request that the Sponsor deliver such
missing document, cure such defect or breach within sixty (60) days from the
date the Sponsor was notified of such missing document, defect or breach, and
if
the Sponsor does not deliver such missing document or cure such defect or breach
in all material respects during such period, the Trustee shall enforce the
obligations of the Sponsor under the Mortgage Loan Purchase Agreement to
repurchase such Mortgage Loan from REMIC I at the Purchase Price within ninety
(90) days after the date on which the Sponsor was notified of such missing
document, defect or breach, if and to the extent that the Sponsor is obligated
to do so under the Mortgage Loan Purchase Agreement. The Purchase Price for
the
repurchased Mortgage Loan shall be remitted to the related Servicer for deposit
in the related Collection Account and the Trustee, upon receipt of written
certification from such Servicer of such deposit, shall release or cause the
applicable Custodian (upon receipt of a request for release in the form attached
to respective the Custodial Agreement) to release to the Sponsor the related
Mortgage File and the Trustee shall execute and deliver such instruments of
transfer or assignment, in each case without recourse, representation or
warranty, as the Sponsor shall furnish to it and as shall be necessary to vest
in the Sponsor any Mortgage Loan released pursuant hereto, and the Trustee
shall
not have any further responsibility with regard to such Mortgage File. In lieu
of repurchasing any such Mortgage Loan as provided above, if so provided in
the
Mortgage Loan Purchase Agreement, the Sponsor may cause such Mortgage Loan
to be
removed from REMIC I (in which case it shall become a Deleted Mortgage Loan)
and
substitute one or more Qualified Substitute Mortgage Loans in the manner and
subject to the limitations set forth in Section 2.03(b). It is understood
and agreed that the obligation of the Sponsor to cure or to repurchase (or
to
substitute for) any Mortgage Loan as to which a document is missing, a material
defect in a constituent document exists or as to which such a breach has
occurred and is continuing shall constitute the sole remedy respecting such
omission, defect or breach available to the Trustee and the Certificateholders.
Notwithstanding anything to the contrary contained herein, any breach of a
representation or warranty contained in clauses (xxxiv), (xxxviii), (xxxix),
(xl), (xli), (xlvi), (xlvii) and/or (lvi) of Section 6 of the Mortgage Loan
Purchase Agreement shall be automatically deemed to affect materially and
adversely the interests of the Certificateholders.
In
addition, promptly upon the earlier of discovery by a Servicer or receipt of
notice by a Servicer of the breach of the representation or covenant of the
Sponsor set forth in Section 5(xii) of the Mortgage Loan Purchase Agreement
which materially and adversely affects the interests of the Holders of the
Class
P Certificates in any Prepayment Charge, such Servicer shall promptly notify
the
Sponsor and the Trustee of such breach. The Trustee shall enforce the
obligations of the Sponsor under the Mortgage Loan Purchase Agreement to remedy
such breach to the extent and in the manner set forth in the Mortgage Loan
Purchase Agreement.
(b) Any
substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans
made pursuant to Section 2.03(a) of this Agreement must be effected prior
to the date which is two years after the Startup Day for REMIC I.
As
to any
Deleted Mortgage Loan for which the Sponsor substitutes a Qualified Substitute
Mortgage Loan or Loans, such substitution shall be effected by the Sponsor
delivering to the Trustee or the applicable Custodian on behalf of the Trustee,
for such Qualified Substitute Mortgage Loan or Loans, the Mortgage Note, the
Mortgage, the Assignment to the Trustee, and such other documents and
agreements, with all necessary endorsements thereon, as are required by
Section 2 of the related Custodial Agreement, as applicable, together with
an Officers’ Certificate providing that each such Qualified Substitute Mortgage
Loan satisfies the definition thereof and specifying the Substitution Shortfall
Amount (as described below), if any, in connection with such substitution.
The
applicable Custodian on behalf of the Trustee shall acknowledge receipt of
such
Qualified Substitute Mortgage Loan or Loans and, within ten (10) Business Days
thereafter, review such documents and deliver to the Depositor, the Trustee
and
the related Servicer, with respect to such Qualified Substitute Mortgage Loan
or
Loans, an initial certification pursuant to the related Custodial Agreement,
with any applicable exceptions noted thereon. Within one year of the date of
substitution, the applicable Custodian on behalf of the Trustee shall deliver
to
the Depositor, the Trustee and the related Servicer a final certification
pursuant to the related Custodial Agreement with respect to such Qualified
Substitute Mortgage Loan or Loans, with any applicable exceptions noted thereon.
Monthly Payments due with respect to Qualified Substitute Mortgage Loans in
the
month of substitution are not part of REMIC I and will be retained by the
Sponsor. For the month of substitution, distributions to Certificateholders
will
reflect the Monthly Payment due on such Deleted Mortgage Loan on or before
the
Due Date in the month of substitution, and the Sponsor shall thereafter be
entitled to retain all amounts subsequently received in respect of such Deleted
Mortgage Loan. The Depositor shall give or cause to be given written notice
to
the Certificateholders that such substitution has taken place, shall amend
the
Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan
from
the terms of this Agreement and the substitution of the Qualified Substitute
Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan
Schedule to the Trustee and the related Servicer. Upon such substitution, such
Qualified Substitute Mortgage Loan or Loans shall constitute part of the Trust
Fund and shall be subject in all respects to the terms of this Agreement and
the
Mortgage Loan Purchase Agreement, including all applicable representations
and
warranties thereof included herein or in the Mortgage Loan Purchase
Agreement.
For
any
month in which the Sponsor substitutes one or more Qualified Substitute Mortgage
Loans for one or more Deleted Mortgage Loans, the related Servicer will
determine the amount (the “Substitution Shortfall Amount”), if any, by which the
aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the
aggregate of, as to each such Qualified Substitute Mortgage Loan, the Scheduled
Principal Balance thereof as of the date of substitution, together with one
month’s interest on such Scheduled Principal Balance at the applicable Net
Mortgage Rate, plus all outstanding P&I Advances and Servicing Advances
(including Nonrecoverable P&I Advances and Nonrecoverable Servicing
Advances) related thereto. On the date of such substitution, the Sponsor will
deliver or cause to be delivered to the related Servicer for deposit in the
related Collection Account an amount equal to the Substitution Shortfall Amount,
if any, and the Trustee or the applicable Custodian on behalf of the Trustee,
upon receipt of the related Qualified Substitute Mortgage Loan or Loans, upon
receipt of a request for release in the form attached to the respective
Custodial Agreement and certification by the related Servicer of such deposit,
shall release to the Sponsor the related Mortgage File or Files and the Trustee
shall execute and deliver such instruments of transfer or assignment, in each
case without recourse, representation or warranty, as the Sponsor shall deliver
to it and as shall be necessary to vest therein any Deleted Mortgage Loan
released pursuant hereto.
In
addition, the Sponsor shall obtain at its own expense and deliver to the Trustee
an Opinion of Counsel to the effect that such substitution will not cause (a)
any federal tax to be imposed on any Trust REMIC, including without limitation,
any federal tax imposed on “prohibited transactions” under
Section 860F(a)(1) of the Code or on “contributions after the startup date”
under Section 860G(d)(1) of the Code, or (b) any Trust REMIC to fail to
qualify as a REMIC at any time that any Certificate is outstanding.
(c) Upon
discovery by the Depositor, the Sponsor, a Servicer or the Trustee that any
Mortgage Loan does not constitute a “qualified mortgage” within the meaning of
Section 860G(a)(3) of the Code, the party discovering such fact shall
within two (2) Business Days give written notice thereof to the other parties.
In connection therewith, the Sponsor shall repurchase or substitute one or
more
Qualified Substitute Mortgage Loans for the affected Mortgage Loan within ninety
(90) days of the earlier of discovery or receipt of such notice with respect
to
such affected Mortgage Loan. Such repurchase or substitution shall be made
by
(i) the Sponsor if the affected Mortgage Loan’s status as a non-qualified
mortgage is or results from a breach of any representation, warranty or covenant
made by the Sponsor under the Mortgage Loan Purchase Agreement or (ii) the
Depositor, if the affected Mortgage Loan’s status as a non-qualified mortgage
does not result from a breach of a representation or warranty. Any such
repurchase or substitution shall be made in the same manner as set forth in
Section 2.03(a) of this Agreement. The Trustee shall reconvey to the
Sponsor the Mortgage Loan to be released pursuant hereto in the same manner,
and
on the same terms and conditions, as it would a Mortgage Loan repurchased for
breach of a representation or warranty.
(d) With
respect to a breach of the representations made pursuant to Section 5(xii)
of the Mortgage Loan Purchase Agreement that materially and adversely affects
the value of such Mortgage Loan or the interest therein of the
Certificateholders, the Sponsor shall be required to take the actions set forth
in this Section 2.03 of this Agreement.
(e) Within
ninety (90) days of the earlier of discovery by a Servicer or receipt of notice
by a Servicer of the breach of any representation, warranty or covenant of
such
Servicer set forth in Section 2.05 of this Agreement which materially and
adversely affects the interests of the Certificateholders in any Mortgage Loan
or Prepayment Charge, such Servicer shall cure such breach in all material
respects.
SECTION
2.04. Representations
and Warranties of the Master Servicer.
The
Master Servicer hereby represents, warrants and covenants to the Servicers,
the
Depositor and the Trustee, for the benefit of each of the Trustee and the
Certificateholders, that as of the Closing Date or as of such date specifically
provided herein:
(i) The
Master Servicer is a national banking association duly formed, validly existing
and in good standing under the laws of the United States of America and is
duly
authorized and qualified to transact any and all business contemplated by this
Agreement to be conducted by the Master Servicer;
(ii) The
Master Servicer has the full power and authority to conduct its business as
presently conducted by it and to execute, deliver and perform, and to enter
into
and consummate, all transactions contemplated by this Agreement. The Master
Servicer has duly authorized the execution, delivery and performance of this
Agreement, has duly executed and delivered this Agreement, and this Agreement,
assuming due authorization, execution and delivery by the other parties hereto,
constitutes a legal, valid and binding obligation of the Master Servicer,
enforceable against it in accordance with its terms except as the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization or similar
laws
affecting the enforcement of creditors’ rights generally and by general
principles of equity;
(iii) The
execution and delivery of this Agreement by the Master Servicer, the
consummation by the Master Servicer of any other of the transactions herein
contemplated, and the fulfillment of or compliance with the terms hereof are
in
the ordinary course of business of the Master Servicer and will not (A) result
in a breach of any term or provision of the charter and by-laws of the Master
Servicer or (B) conflict with, result in a breach, violation or acceleration
of,
or result in a default under, the terms of any other material agreement or
instrument to which the Master Servicer is a party or by which it may be bound,
or any statute, order or regulation applicable to the Master Servicer of any
court, regulatory body, administrative agency or governmental body having
jurisdiction over the Master Servicer; and the Master Servicer is not a party
to, bound by, or in breach or violation of any indenture or other agreement
or
instrument, or subject to or in violation of any statute, order or regulation
of
any court, regulatory body, administrative agency or governmental body having
jurisdiction over it, which materially and adversely affects or, to the Master
Servicer’s knowledge, would in the future materially and adversely affect, (x)
the ability of the Master Servicer to perform its obligations under this
Agreement or (y) the business, operations, financial condition, properties
or
assets of the Master Servicer taken as a whole;
(iv) The
Master Servicer does not believe, nor does it have any reason or cause to
believe, that it cannot perform each and every covenant made by it and contained
in this Agreement;
(v) No
litigation is pending against the Master Servicer that would materially and
adversely affect the execution, delivery or enforceability of this Agreement
or
the ability of the Master Servicer to perform any of its other obligations
hereunder in accordance with the terms hereof;
(vi) There
are
no actions or proceedings against, or investigations known to it of, the Master
Servicer before any court, administrative or other tribunal (A) that might
prohibit its entering into this Agreement, (B) seeking to prevent the
consummation of the transactions contemplated by this Agreement or (C) that
might prohibit or materially and adversely affect the performance by the Master
Servicer of its obligations under, or validity or enforceability of, this
Agreement; and
(vii) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Master
Servicer of, or compliance by the Master Servicer with, this Agreement or the
consummation by it of the transactions contemplated by this Agreement, except
for such consents, approvals, authorizations or orders, if any, that have been
obtained prior to the Closing Date.
It
is
understood and agreed that the representations, warranties and covenants set
forth in this Section 2.04 shall survive the resignation or termination of
the parties hereto and the termination of this Agreement and shall inure to
the
benefit of the Trustee, the Depositor and the Certificateholders.
SECTION
2.05. Representations,
Warranties and Covenants of each Servicer.
(a) GMAC
hereby represents, warrants and covenants to the Master Servicer, the Securities
Administrator, the Depositor and the Trustee, for the benefit of each of such
Persons and the Certificateholders that as of the Closing Date or as of such
date specifically provided herein:
(i) GMAC
is a
corporation duly organized, validly existing and in good standing under the
laws
of the state of its incorporation;
(ii) GMAC
has
full corporate power to own its property, to carry on its business as presently
conducted and to enter into and perform its obligations under this
Agreement;
(iii) The
execution and delivery by GMAC of this Agreement have been duly authorized
by
all necessary corporate action on the part of GMAC; and neither the execution
and delivery of this Agreement, nor the consummation of the transactions herein
contemplated hereby, nor compliance with the provisions hereof, will conflict
with or result in a breach of, or constitute a default under, any of the
provisions of any law, governmental rule, regulation, judgment, decree or order
binding on GMAC or its properties or the certificate of incorporation or bylaws
of GMAC, except those conflicts, breaches or defaults which would not reasonably
be expected to have a material adverse effect on GMAC’s ability to enter into
this Agreement and to consummate the transactions contemplated
hereby;
(iv) This
Agreement has been duly executed and delivered by GMAC and, assuming due
authorization, execution and delivery by the other parties to this Agreement,
constitutes a legal, valid and binding obligation of GMAC enforceable against
it
in accordance with its terms (subject to applicable bankruptcy and insolvency
laws and other similar laws affecting the enforcement of the rights of creditors
generally);
(v) There
are
no actions, litigation, suits or proceedings pending or to the knowledge of
GMAC, threatened against GMAC before or by any court, administrative agency,
arbitrator or governmental body (a) with respect to any of the transactions
contemplated by this Agreement or (b) with respect to any other matter which
in
the judgment of GMAC if determined adversely to GMAC would reasonably be
expected to materially and adversely affect GMAC's ability to perform its
obligations under this Agreement, other than as Servicer of the GMAC Mortgage
Loans, has previously advised Sponsor; and GMAC is not in default with respect
to any order of any court, administrative agency, arbitrator or governmental
body so as to materially and adversely affect the transactions contemplated
by
this Agreement; and
(vi) GMAC
will
not waive any Prepayment Charge other than in accordance with the standard
set
forth in Section 3.01.
(b) Ocwen
hereby represents, warrants and covenants to the Master Servicer, the Securities
Administrator, the Depositor and the Trustee, for the benefit of each of such
Persons and the Certificateholders that as of the Closing Date or as of such
date specifically provided herein:
(i) Ocwen
is
a limited liability company duly organized and validly existing under the laws
of the jurisdiction of its formation, and is duly authorized and qualified
to
transact any and all business contemplated by this Agreement to be conducted
by
Ocwen in any state in which a Mortgaged Property related to an Ocwen 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
Ocwen Mortgage Loan and to service the Ocwen Mortgage Loans in accordance with
the terms of this Agreement;
(ii) Ocwen
has
the full power and authority to conduct its business as presently conducted
by
it and to execute, deliver and perform, and to enter into and consummate, all
transactions contemplated by this Agreement. Ocwen has duly authorized the
execution, delivery and performance of this Agreement, has duly executed and
delivered this Agreement, and this Agreement, assuming due authorization,
execution and delivery by the other parties hereto, constitutes a legal, valid
and binding obligation of Ocwen, enforceable against it in accordance with
its
terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting the enforcement of
creditors’ rights generally and by general principles of equity;
(iii) The
execution and delivery of this Agreement by Ocwen, the servicing of the Ocwen
Mortgage Loans by Ocwen hereunder, the consummation by Ocwen of any other of
the
transactions herein contemplated, and the fulfillment of or compliance with
the
terms hereof are in the ordinary course of business of Ocwen and will not (A)
result in a breach of any term or provision of the charter or by-laws of Ocwen
or (B) conflict with, result in a breach, violation or acceleration of, or
result in a default under, the terms of any other material agreement or
instrument to which Ocwen is a party or by which it may be bound, or any
statute, order or regulation applicable to Ocwen of any court, regulatory body,
administrative agency or governmental body having jurisdiction over Ocwen;
and
Ocwen is not a party to, bound by, or in breach or violation of any indenture
or
other agreement or instrument, or subject to or in violation of any statute,
order or regulation of any court, regulatory body, administrative agency or
governmental body having jurisdiction over it, which materially and adversely
affects or, to Ocwen's knowledge, would in the future materially and adversely
affect, (x) the ability of Ocwen to perform its obligations under this
Agreement, (y) the business, operations, financial condition, properties or
assets of Ocwen taken as a whole or (z) the legality, validity or enforceability
of this Agreement;
(iv) Ocwen
does not believe, nor does it have any reason or cause to believe, that it
cannot perform each and every covenant made by it and contained in this
Agreement;
(v) No
litigation is pending against Ocwen that would materially and adversely affect
the execution, delivery or enforceability of this Agreement or the ability
of
Ocwen to service the Ocwen Mortgage Loans or to perform any of its other
obligations hereunder in accordance with the terms hereof;
(vi) There
are
no actions or proceedings against, or investigations known to it of, Ocwen
before any court, administrative or other tribunal (A) that might prohibit
its
entering into this Agreement, (B) seeking to prevent the consummation of the
transactions contemplated by this Agreement or (C) that might prohibit or
materially and adversely affect the performance by Ocwen of its obligations
under, or the validity or enforceability of, this Agreement;
(vii) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by Ocwen of, or
compliance by Ocwen with, this Agreement or the consummation by it of the
transactions contemplated by this Agreement, except for such consents,
approvals, authorizations or orders, if any, that have been obtained prior
to
the Closing Date;
(viii) Ocwen
has
fully furnished and will continue to fully furnish, in accordance with the
Fair
Credit Reporting Act and its implementing regulations, accurate and complete
information (e.g., favorable and unfavorable) on its borrower credit files
to
Equifax, Experian and Trans Union Credit Information Company or their successors
on a monthly basis;
(ix) Ocwen
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
Mortgage Loans that are registered with MERS; and
(x) Ocwen
will not waive any Prepayment Charge other than in accordance with the standard
set forth in Section 3.01.
Notwithstanding
anything to the contrary contained in this Agreement, if the covenant of the
related Servicer set forth in Section 2.05(a)(vi) and 2.05 (b)(x) above is
breached, the related Servicer will pay the amount of such waived Prepayment
Charge, from its own funds without any right of reimbursement, for the benefit
of the Holders of the Class P Certificates, by depositing such amount into
the
related Collection Account within 90 days of the earlier of discovery by the
related Servicer or receipt of notice by the related Servicer of such breach;
provided, however, the related Servicer shall not have any obligation to pay
the
amount of any uncollected Prepayment Charge under this Section 2.05 if such
Servicer did not have a copy of the related Mortgage Note, such Servicer
requested a copy of the same from the Custodian in accordance with the terms
of
the Custodial Agreement and the Custodian failed to provide such a copy within
the time frame set forth in the Custodial Agreement. Furthermore,
notwithstanding any other provisions of this Agreement, any payments made by
the
related Servicer in respect of any waived Prepayment Charges pursuant to this
paragraph shall be deemed to be paid outside of the Trust Fund.
It
is
understood and agreed that the representations, warranties and covenants set
forth in this Section 2.05 shall survive the resignation or termination of
the
parties hereto, the termination of this Agreement and the delivery of the
Mortgage Files to the Custodian and shall inure to the benefit of the Trustee,
the Master Servicer, the Securities Administrator, the Depositor and the
Certificateholders. Upon discovery by any such Person or the related Servicer
of
a breach of any of the foregoing representations, warranties and covenants
which
materially and adversely affects the value of any Mortgage Loan, Prepayment
Charge or the interests therein of the Certificateholders, the party discovering
such breach shall give prompt written notice (but in no event later than two
Business Days following such discovery) to the Trustee. Subject to Section
8.01,
unless such breach shall not be susceptible of cure within 90 days, the
obligation of the related Servicer set forth in Section 2.03(e) to cure breaches
shall constitute the sole remedy against the related Servicer available to
the
Certificateholders, the Depositor or the Trustee on behalf of the
Certificateholders respecting a breach of the representations, warranties and
covenants contained in this Section 2.05.
SECTION
2.06. Issuance
of the REMIC I Regular Interests and the Class R-I Interest.
The
Trustee acknowledges the assignment to it of the Mortgage Loans and the delivery
to the Custodian on its behalf of the Mortgage Loan Documents, subject to the
provisions of Section 2.01 and Section 2.02 hereof and Section 2
of the Custodial Agreement, 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-I 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-I 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-I Interest and the REMIC I Regular Interests,
respectively, and all ownership interests evidenced or constituted by the Class
R-I 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 and REMIC II Regular Interests; Acceptance
of
REMIC I, REMIC II and 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 I Regular
Interests for the benefit of the Class R-II 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-II Interest and REMIC II (as holder of the REMIC I Regular Interests). 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-III 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-III Interest and REMIC III (as holder of the REMIC II Regular
Interests). The rights of the Holder of the Class R-III 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-III Interest and Regular
Certificates, respectively, and all ownership interests evidenced or constituted
by the Class R-III Interest and the Regular Certificates, shall be as set forth
in this Agreement. The Class R-III Interest and the Regular Certificates shall
constitute the entire beneficial ownership interest in REMIC III.
SECTION
2.08. Issuance
of the Residual Certificates.
The
Trustee acknowledges the assignment to it of the REMIC I Regular Interests
and,
concurrently therewith and in exchange therefor, pursuant to the written request
of the Depositor executed by an officer of the Depositor, the Securities
Administrator has executed and authenticated and the Trustee has 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-I
Interest, the Class R-II Interest and the Class R-III Interest.
SECTION
2.09. Establishment
of the 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 “ACE Securities Corp., Home Equity Loan Trust, Series
2006-SL1” and does hereby appoint HSBC Bank USA, National Association as Trustee
in accordance with the provisions of this Agreement.
SECTION
2.10. Purpose
and Powers of the Trust.
The
purpose of the common law trust, as created hereunder, is to engage in the
following activities:
(a) acquire
and hold the Mortgage Loans and the other assets of the Trust Fund and the
proceeds therefrom;
(b) to
issue
the Certificates sold to the Depositor in exchange for the Mortgage
Loans;
(c) to
make
payments on the Certificates;
(d) to
engage
in those activities that are necessary, suitable or convenient to accomplish
the
foregoing or are incidental thereto or connected therewith; and
(e) subject
to compliance with this Agreement, to engage in such other activities as may
be
required in connection with conservation of the Trust Fund and the making of
distributions to the Certificateholders.
The
trust
is hereby authorized to engage in the foregoing activities. The Trustee shall
not cause the trust to engage in any activity other than in connection with
the
foregoing or other than as required or authorized by the terms of this Agreement
while any Certificate is outstanding, and this Section 2.10 may not be amended,
without the consent of the Certificateholders evidencing 51% or more of the
aggregate voting rights of the Certificates.
ARTICLE
III
ADMINISTRATION
AND SERVICING
OF
THE
MORTGAGE LOANS; ACCOUNTS
SECTION
3.01. The
Servicers to Act as Servicers.
The
obligations of each of Ocwen and GMAC hereunder to service and administer the
Mortgage Loans shall be limited to the Ocwen 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 (i) the GMAC Mortgage Loans (and the related proceeds thereof and related
REO
Properties) in the case of GMAC and (ii) the Ocwen Mortgage Loans (and the
related proceeds and related REO Properties) in the case of Ocwen, and in no
event shall any Servicer have any responsibility or liability with respect
to
any Mortgage Loans serviced by the other Servicer hereunder.
On
and
after the Closing Date, the Servicers shall service and administer the related
Mortgage Loans on behalf of the Trust Fund and in the best interests of and
for
the benefit of the Certificateholders (as determined by the related Servicer
in
its reasonable judgment) in accordance with the terms of this Agreement and
the
respective Mortgage Loans and all applicable law and regulations 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 prudent mortgage
lenders and loan servicers administering similar mortgage loans but without
regard to:
(i) any
relationship that the related Servicer or any Affiliate of the related Servicer
may have with the related Mortgagor;
(ii) the
ownership of any Certificate by the related Servicer or any Affiliate of such
Servicer;
(iii) the
related Servicer’s obligation to make P&I Advances or Servicing Advances;
or
(iv) the
related Servicer’s right to receive compensation for its services
hereunder;
To
the
extent consistent with the foregoing, each Servicer shall also seek to maximize
the timely and complete recovery of principal and interest on the Mortgage
Notes
and shall waive (or permit a Sub-Servicer to waive) a Prepayment Charge only
under the following circumstances: (i) such waiver is standard and customary
in
servicing similar Mortgage Loans and such waiver is related to a default or
reasonably foreseeable default and would, in the reasonable judgment 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, (ii) such
Prepayment Charge is unenforceable in accordance with applicable law or the
collection of such related Prepayment Charge would otherwise violate applicable
law or (iii) the collection of such Prepayment Charge would be considered
“predatory” pursuant to written guidance published or issued by any applicable
federal, state or local regulatory authority acting in its official capacity
and
having jurisdiction over such matters. Notwithstanding any provision in this
Agreement to the contrary, in the event the Prepayment Charge payable under
the
terms of the Mortgage Note is less than the amount of the Prepayment Charge
set
forth in the Prepayment Charge Schedule or other information provided to the
related Servicer, such Servicer shall not have any liability or obligation
with
respect to such difference, and in addition shall not have any liability or
obligation to pay the amount of any uncollected Prepayment Charge if the failure
to collect such amount is the direct result of inaccurate or incomplete
information on the Prepayment Charge Schedule.
Subject
only to the above-described servicing standards (the “Accepted Servicing
Practices”) and the terms of this Agreement and of the related Mortgage Loans,
each Servicer shall have full power and authority, to do or cause to be done
any
and all things in connection with such servicing and administration which it
may
deem necessary or desirable with the goal of maximizing proceeds of the Mortgage
Loan. Without limiting the generality of the foregoing, each Servicer in its
own
name is hereby authorized and empowered by the Trustee when the related Servicer
believes it appropriate in its best judgment, to execute and deliver, on behalf
of the Trust Fund, the Certificateholders and the Trustee or any of them, and
upon written notice to the Trustee, any and all instruments of satisfaction
or
cancellation, or of partial or full release or discharge or subordination,
and
all other comparable instruments, with respect to the related Mortgage Loans
and
the related Mortgaged Properties and to institute foreclosure proceedings or
obtain a deed-in-lieu of foreclosure so as to convert the ownership of such
properties, and to hold or cause to be held title to such properties, on behalf
of the Trustee, for the benefit of the Trust Fund and the Certificateholders.
Each Servicer shall service and administer the related Mortgage Loans in
accordance with applicable state and federal law and shall provide to the
Mortgagors any reports required to be provided to them thereby. Each Servicer
shall also comply in the performance of this Agreement with all reasonable
rules
and requirements of each insurer under any standard hazard insurance policy.
Subject to Section 3.14, the Trustee shall execute, at the written request
of a
Servicer, and furnish to such Servicer a power of attorney in the form of
Exhibit
D
hereto
and other documents necessary or appropriate to enable such Servicer to carry
out its servicing and administrative duties hereunder and furnished to the
Trustee by such Servicer, and the Trustee shall not be liable for the actions
of
such Servicer under such powers of attorney and shall be indemnified by such
Servicer for any cost, liability or expense incurred by the Trustee in
connection with such Servicer’s use or misuse of any such power of
attorney.
Each
Servicer further is hereby authorized and empowered in its own name or in the
name of the Sub-Servicer, when such Servicer or the Sub-Servicer, as the case
may be, believes it is appropriate in its best judgment to register any Mortgage
Loan on the MERS® System, or cause the removal from the registration of any
Mortgage Loan on the MERS® System, to execute and deliver, on behalf of the
Trustee and the Certificateholders or any of them, any and all instruments
of
assignment and other comparable instruments with respect to such assignment
or
re-recording of a Mortgage in the name of MERS, solely as nominee for the
Trustee and its successors and assigns. Any reasonable expenses incurred in
connection with the actions described in the preceding sentence or as a result
of MERS discontinuing or becoming unable to continue operations in connection
with the MERS® System, shall be reimbursable by the Trust Fund to such
Servicer.
In
accordance with Accepted Servicing Practices, each Servicer shall make or cause
to be made Servicing Advances as necessary for the purpose of effecting the
payment of taxes and assessments on the Mortgaged Properties (to the extent
such
Servicer has been notified that such taxes or assessments have not been paid
by
the related Mortgagor, owner or servicer of the related First Mortgage Loan),
which Servicing Advances shall be reimbursable in the first instance from
related collections from the related Mortgagors pursuant to Section 3.07 of
this
Agreement, and further as provided in Section 3.09 of this Agreement; provided,
however, the related Servicer shall only make such Servicing Advance if the
related Mortgagor has not made such payment and if the failure to make such
Servicing Advance would result in the loss of the related Mortgaged Property
due
to a tax sale or foreclosure as result of a tax lien; provided, however, that
each Servicer shall be required to make such Servicing
Advances only
to
the extent that such Servicing Advances, in the good faith judgment of such
Servicer, will be recoverable by such Servicer out of Insurance Proceeds,
Liquidation Proceeds, or otherwise out of the proceeds of the related Mortgage
Loan. Any cost incurred by a Servicer in effecting the payment of taxes and
assessments on a Mortgaged Property shall not, for the purpose of calculating
the Stated Principal Balance of such Mortgage Loan or distributions to
Certificateholders, be added to the unpaid principal balance of the related
Mortgage Loan, notwithstanding that the terms of such Mortgage Loan so permit.
The parties to this Agreement acknowledge that Servicing Advances shall be
reimbursable pursuant to Section 3.09 of this Agreement, and agree that no
Servicing Advance shall be rejected or disallowed by any party unless it has
been shown that such Servicing Advance was not made in accordance with
the
terms of this Agreement. Notwithstanding the foregoing, the parties understand
and agree that, with respect to any Mortgage Loan (1) the Master Servicer shall
not approve the reimbursement of any Servicing Advance made with respect to
such
Mortgage Loan prior to the Cut-off Date (each, a “Pre-Cut-off Date Advance”)
unless and until it has received a Servicing Advance Schedule listing the amount
of Pre-Cut-off Date Advances made in respect of such Mortgage Loan from (a)
the
related Servicer with respect to any Mortgage Loans that were transferred to
such Servicer prior to the Cut-off Date and/or (b) the Depositor with respect
to
any Mortgage Loans that were transferred to the related Servicer after the
Cut-off Date, (2) the aggregate Pre-Cut-off Date Advances reimbursable hereunder
with respect to such Mortgage Loan shall not exceed the amount of Pre-Cut-off
Date Advances for such Mortgage Loan shown on the Servicing Advance Schedule
delivered to the Master Servicer, (3) the Depositor shall be deemed to have
agreed with and approved the Pre-Cut-off Date Advances shown on any Servicing
Advance Schedule furnished to the Master Servicer, and (4) the Master Servicer
will have no liability to the Depositor, the related Servicer or any other
Person, including any Certificateholder, for approving reimbursement of related
Pre-Cut-off Date Advances so long as the aggregate amount of such advances
reimbursed hereunder does not exceed of the amount of Pre-Cut-off Date Advances
for such Mortgage Loan shown on the Servicing Advance Schedule.
Each
Servicer, in such capacity, may consent to the refinancing of a First Mortgage
Loan on a Mortgaged Property, provided that the following requirements are
met:
(i) the
resulting Combined Loan-to-Value Ratio of such Mortgage Loan is no higher than
the Combined Loan-to-Value Ratio prior to such refinancing; and
(ii) the
interest rate for the loan evidencing the refinanced First Mortgage Loan is
no
more than 2.0% higher than the interest rate on the loan evidencing the existing
First Mortgage Loan immediately prior to the date of such refinancing;
and
(iii) the
mortgage loan evidencing the refinanced First Mortgage Loan is not subject
to
negative amortization.
Each
Servicer shall inspect the Mortgaged Properties related to Mortgage Loans
serviced by such Servicer as often as deemed necessary by such Servicer in
such
Servicer’s sole discretion, to assure itself that the value of such Mortgaged
Property is being preserved. In addition, if any Mortgage Loan is more than
60
days delinquent, each Servicer shall conduct subsequent inspections in
accordance with Accepted Servicing Practices. Each Servicer shall keep a written
or electronic report of each such inspection.
Notwithstanding
anything in this Agreement to the contrary, no Servicer may make any future
advances with respect to a Mortgage Loan and no Servicer shall permit any
modification with respect to any related Mortgage Loan that would change the
Mortgage Rate, reduce or increase the principal balance (except for reductions
resulting from actual payments of principal) or change the final maturity date
on such related Mortgage Loan (unless, as provided in Section 3.06 of this
Agreement, the related Mortgagor is in default with respect to the related
Mortgage Loan or such default is, in the judgment of the related Servicer,
reasonably foreseeable) or any modification, waiver or amendment of any term
of
any related Mortgage Loan that would both (A) effect an exchange or reissuance
of such Mortgage Loan under Section 1001 of the Code (or final, temporary
or proposed Treasury regulations promulgated thereunder) and (B) cause any
Trust
REMIC created hereunder to fail to qualify as a REMIC under the Code or the
imposition of any tax on “prohibited transactions” or “contributions after the
startup date” under the REMIC Provisions.
In
the
event that the Mortgage Loan Documents relating to a Mortgage Loan contain
provisions requiring the related Mortgagor to arbitrate disputes (at the option
of the Trustee, on behalf of the Trust), the Trustee hereby authorizes the
related Servicer to waive the Trustee’s right or option to arbitrate disputes
and to send written notice of such waiver to the Mortgagor, although the
Mortgagor may still require arbitration at its option.
Each
Servicer will fully furnish, in accordance with the Fair Credit Reporting Act
and its implementing regulations, accurate and complete information (e.g.,
favorable and unfavorable) on its borrower credit files to Equifax, Experian
and
Trans Union Credit Information Company or their successors on a monthly
basis.
SECTION
3.02. Sub-Servicing
Agreements Between a Servicer and Sub-Servicers.
(a) Each
Servicer may arrange for the subservicing of any Mortgage Loan by a Sub-
Servicer pursuant to a Sub-Servicing Agreement; provided that such sub-servicing
arrangement and the terms of the related Sub-Servicing Agreement must provide
for the servicing of such Mortgage Loans in a manner consistent with the
servicing arrangements contemplated hereunder and the related Servicer shall
cause any Sub-Servicer to comply with the provisions of this Agreement
(including, without limitation, to provide the information required to be
delivered under Sections 3.17, 3.18 and 3.19 hereof), to the same extent as
if
such Sub-Servicer were the related Servicer. The related Servicer shall be
responsible for obtaining from each Sub-Servicer and delivering to the Master
Servicer any annual statement of compliance, assessment of compliance,
attestation report and ▇▇▇▇▇▇▇▇-▇▇▇▇▇ related certification as and when required
to be delivered. Each Sub-Servicer shall be (i) authorized to transact business
in the state or states where the related Mortgaged Properties it is to service
are situated, if and to the extent required by applicable law to enable the
Sub-Servicer to perform its obligations hereunder and under the Sub-Servicing
Agreement and (ii) a ▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇ ▇▇▇ approved mortgage servicer.
Notwithstanding the provisions of any Sub-Servicing Agreement, any of the
provisions of this Agreement relating to agreements or arrangements between
a
Servicer or a Sub-Servicer or reference to actions taken through such Servicer
or otherwise, the related Servicer shall remain obligated and liable to the
Depositor, the Trustee and the Certificateholders for the servicing and
administration of the Mortgage Loans in accordance with the provisions of this
Agreement without diminution of such obligation or liability by virtue of such
Sub-Servicing Agreements or arrangements or by virtue of indemnification from
the Sub-Servicer and to the same extent and under the same terms and conditions
as if the related Servicer alone were servicing and administering the Mortgage
Loans. Every Sub-Servicing Agreement entered into by a Servicer shall contain
a
provision giving the successor Servicer the option to terminate such agreement
in the event a successor Servicer is appointed. All actions of each Sub-Servicer
performed pursuant to the related Sub-Servicing Agreement shall be performed
as
an agent of the related Servicer with the same force and effect as if performed
directly by the related Servicer.
(b) Notwithstanding
the foregoing, each Servicer shall be entitled to outsource one or more separate
servicing functions to a Person (each, a “Subcontractor”) that does not meet the
eligibility requirements for a Sub-Servicer, so long as such outsourcing does
not constitute the delegation of such Servicer’s obligation to perform all or
substantially all of the servicing of the related Mortgage Loans to such
Subcontractor. The related Servicer shall promptly, upon request, provide to
the
Master Servicer, the Trustee and the Depositor a written description (in form
and substance reasonably satisfactory to the Master Servicer, the Trustee and
the Depositor) of the role and function of each Subcontractor utilized by the
related Servicer, specifying (i) the identity of each such Subcontractor
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, and (ii) which elements of the Servicing Criteria will be
addressed in assessments of compliance provided by each Subcontractor identified
pursuant to clause (i) of this subsection; provided, however, that the Servicer
shall not be required to provide the information in clauses (i) or (ii) of
this
subsection until such time that the applicable assessment of compliance is
due
pursuant to Section 3.18 of this Agreement. The use by a Servicer of any such
Subcontractor shall not release such Servicer from any of its obligations
hereunder and such Servicer shall remain responsible hereunder for all acts
and
omissions of such Subcontractor as fully as if such acts and omissions were
those of such Servicer, and such Servicer shall pay all fees and expenses of
the
Subcontractor from such Servicer’s own funds.
(c) As
a
condition to the utilization of any Subcontractor determined to be
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, the related Servicer shall cause any such Subcontractor used
by
such Servicer for the benefit of the Master Servicer, the Trustee and the
Depositor to comply with the provisions of Sections 3.17, 3.18 and 3.19 of
this
Agreement to the same extent as if such Subcontractor were the related Servicer.
The related Servicer shall be responsible for obtaining from each Subcontractor
and delivering to the Master Servicer, the Trustee and any Depositor any
assessment of compliance, attestation report and ▇▇▇▇▇▇▇▇-▇▇▇▇▇ related
certification required to be delivered by such Subcontractor under Section
3.17,
3.18 and 3.19, in each case as and when required to be delivered.
(d) For
purposes of this Agreement, the related Servicer shall be deemed to have
received any collections, recoveries or payments with respect to the Mortgage
Loans that are received by a Sub-Servicer or a Subcontractor regardless of
whether such payments are remitted by the Sub-Servicer or a Subcontractor to
the
related Servicer.
SECTION
3.03. Successor
Sub-Servicers.
Any
Sub-Servicing Agreement shall provide that the related Servicer shall be
entitled to terminate any Sub-Servicing Agreement and to either itself directly
service the related Mortgage Loans or enter into a Sub-Servicing Agreement
with
a successor Sub-Servicer which qualifies under Section 3.02. Any Sub-Servicing
Agreement shall include the provision that such agreement may be terminated
as
soon as is reasonably possible by any successor to the related Servicer (which
may be the Trustee or the Master Servicer) without fee or, in the event a
termination fee exists, such fee shall be payable by the related Servicer from
its own funds without reimbursement therefor, in accordance with the terms
of
this Agreement, in the event that the related Servicer (or any successor to
the
related Servicer) shall, for any reason, no longer be the Servicer of the
related Mortgage Loans (including termination due to a Servicer Event of
Default). Each Servicer shall be entitled to enter into an agreement with its
Sub-Servicer and Subcontractor for indemnification of such Servicer or
Subcontractor, as applicable, by such Sub-Servicer and nothing contained in
this
Agreement shall be deemed to limit or modify such indemnification.
SECTION
3.04. No
Contractual Relationship Between Sub-Servicer, Subcontractor, Trustee or the
Certificateholders.
Any
Sub-Servicing Agreement and any other transactions or services relating to
the
Mortgage Loans involving a Sub-Servicer or an Subcontractor shall be deemed
to
be between the Sub-Servicer or Subcontractor, as applicable, and the related
Servicer alone and the Master Servicer, Trustee and the Certificateholders
shall
not be deemed parties thereto and shall have no claims, rights, obligations,
duties or liabilities with respect to any Sub-Servicer or Subcontractor except
as set forth in Section 3.05 of this Agreement.
SECTION
3.05. Assumption
or Termination of Sub-Servicing Agreement by Successor Servicer.
In
connection with the assumption of the responsibilities, duties and liabilities
and of the authority, power and rights of a Servicer hereunder by a successor
Servicer (which may be the Trustee or the Master Servicer) pursuant to Section
8.02 of this Agreement, it is understood and agreed that such Servicer’s rights
and obligations under any Sub-Servicing Agreement then in force between such
Servicer and a Sub-Servicer shall be assumed simultaneously by such successor
Servicer without act or deed on the part of such successor Servicer; provided,
however, that any successor Servicer may terminate the
Sub-Servicer.
Each
Servicer shall, upon the reasonable request of the Master Servicer, but at
its
own expense, deliver to the assuming party documents and records relating to
each Sub-Servicing Agreement and an accounting of amounts collected and held
by
it and otherwise use its best efforts to effect the orderly and efficient
transfer of the Sub-Servicing Agreements to the assuming party.
The
Servicing Fee payable to any such successor servicer shall be payable from
payments received on the Mortgage Loans in the amount and in the manner set
forth in this Agreement.
SECTION
3.06. Collection
of Certain Mortgage Loan Payments.
Each
Servicer shall make reasonable efforts to collect all payments called for under
the terms and provisions of the related Mortgage Loans, and shall, to the extent
such procedures shall be consistent with this Agreement and Accepted Servicing
Practices, follow such collection procedures as it would follow with respect
to
mortgage loans comparable to the Mortgage Loans and held for its own account.
Consistent with the foregoing, each Servicer may in its discretion (i) waive
any
late payment charge or, if applicable, penalty interest or (ii) extend the
due
dates for the Monthly Payments due on a Mortgage Note related to a Mortgage
Loan
for a period of not greater than 180 days; provided that any extension pursuant
to this clause shall not affect the amortization schedule of any Mortgage Loan
for purposes of any computation hereunder and provided, further, that any such
waiver, modification, postponement or indulgence granted to a Mortgagor by
a
Servicer in connection with its servicing of the related First Mortgage Loan
shall not be considered relevant to a determination of whether such Servicer
has
acted consistently with the terms and standards of this Agreement, so long
as in
such Servicer’s determination such action is not materially adverse to the
interests of the Certificateholders. Notwithstanding the foregoing, in the
event
that any Mortgage Loan is in default or, in the judgment of the related
Servicer, such default is reasonably foreseeable, the related Servicer,
consistent with Accepted Servicing Practices may waive, modify or vary any
term
of such Mortgage Loan (including modifications that change the Mortgage Rate,
forgive the payment of principal or interest or extend the final maturity date
of such Mortgage Loan), accept payment from the related Mortgagor of an amount
less than the Stated Principal Balance in final satisfaction of such Mortgage
Loan, or consent to the postponement of strict compliance with any such term
or
otherwise grant indulgence to any Mortgagor if in the related Servicer’s
determination such waiver, modification, postponement or indulgence is not
materially adverse to the interests of the Certificateholders (taking into
account any estimated Realized Loss that might result absent such action).
Each
Servicer shall not be required to institute or join in litigation with respect
to collection of any payment (whether under a Mortgage, Mortgage Note or
otherwise or against any public or governmental authority with respect to a
taking or condemnation) if it reasonably believes that enforcing the provision
of the Mortgage or other instrument pursuant to which such payment is required
is prohibited by applicable law.
SECTION
3.07. Collection
of Taxes, Assessments and Similar Items; Servicing Accounts.
In
connection with an Escrow Mortgage Loan or a Mortgage Loan that in accordance
with Accepted Servicing Practices becomes an Escrow Mortgage Loan, the related
Servicer shall establish and maintain one or more accounts (the “Servicing
Accounts”), into which all collections from the Mortgagors (or related advances
from Sub-Servicers) for the payment of taxes, assessments, fire, flood, and
hazard insurance premiums, and comparable items for the account of the
Mortgagors (“Escrow Payments”) shall be deposited and retained. Servicing
Accounts shall be Eligible Accounts. The related Servicer shall deposit in the
clearing account in which it customarily deposits payments and collections
on
mortgage loans in connection with its mortgage loan servicing activities on
a
daily basis all Escrow Payments collected on account of the Mortgage Loans
and
shall thereafter deposit such Escrow Payments in the Servicing Accounts, in
no
event later than the second Business Day after the deposit of good funds into
the clearing account, and retain therein, all Escrow Payments collected on
account of the Mortgage Loans, for the purpose of effecting the timely payment
of any such items as required under the terms of this Agreement. Withdrawals
of
amounts from a Servicing Account may be made by the related Servicer only to
(i)
effect timely payment of taxes, assessments, fire, flood, and hazard insurance
premiums, and comparable items; (ii) reimburse itself out of related collections
for any Servicing Advances made pursuant to Section 3.01 (with respect to taxes
and assessments) and Section 3.11 (with respect to fire, flood and hazard
insurance); (iii) refund to Mortgagors any sums as may be determined to be
overages; (iv) for application to restore or repair the related Mortgaged
Property in accordance with Section 3.11; (v) pay interest, if required and
as
described below, to Mortgagors on balances in the Servicing Account or, only
to
the extent not required to be paid to the related Mortgagors, to pay itself
interest on balances in the Servicing Account; or (vi) clear and terminate
the
Servicing Account at the termination of the related Servicer’s obligations and
responsibilities in respect of the Mortgage Loans under this Agreement in
accordance with Article X. As part of its servicing duties, each Servicer shall
pay to the Mortgagors interest on funds in Servicing Accounts, to the extent
required by law and, to the extent that interest earned on funds in the
Servicing Accounts is insufficient, to pay such interest from its or their
own
funds, without any reimbursement therefor. Notwithstanding the foregoing, no
Servicer shall be obligated to collect Escrow Payments if the related Mortgage
Loan does not require such payments but each Servicer shall nevertheless be
obligated to make Servicing Advances as provided in Section 3.01 and Section
3.11. In the event a Servicer shall deposit in the Servicing Accounts any amount
not required to be deposited therein, it may at any time withdraw such amount
from the Servicing Accounts, any provision to the contrary
notwithstanding.
With
respect to Escrow Mortgage Loans, each Servicer shall ascertain and estimate
Escrow Payments and all other charges that will become due and payable with
respect to the related Mortgage Loans and the Mortgaged Properties, to the
end
that the installments payable by the Mortgagors will be sufficient to pay such
charges as and when they become due and payable. To the extent that a Mortgage
does not provide for Escrow Payments, the related Servicer (i) shall determine
whether any such payments are made by the Mortgagor in a manner and at a time
that is necessary to avoid the loss of the Mortgaged Property due to a tax
sale
or the foreclosure as a result of a tax lien and (ii) shall ensure that all
insurance required to be maintained on the Mortgaged Property pursuant to this
Agreement is maintained. If any such payment has not been made and the related
Servicer receives notice of a tax lien with respect to the Mortgage Loan being
imposed, the related Servicer shall, promptly and to the extent required to
avoid loss of the Mortgaged Property, advance or cause to be advanced funds
necessary to discharge such lien on the Mortgaged Property unless the related
Servicer determines the advance to be nonrecoverable. Each Servicer assumes
full
responsibility for the payment of all such bills and shall effect payments
of
all such bills irrespective of the Mortgagor’s faithful performance in the
payment of same or the making of the Escrow Payments and shall make Servicing
Advances to effect such payments subject to its determination of
recoverability.
SECTION
3.08. Collection
Accounts and Distribution Account.
(a) On
behalf
of the Trust Fund, each Servicer shall establish and maintain one or more
“Collection Accounts”, held in trust for the benefit of the Trustee and the
Certificateholders. 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 collections on mortgage loans in connection with its mortgage
loan
servicing activities on a daily basis, and in no event more than one Business
Day after such Servicer’s receipt thereof, and shall thereafter deposit in the
related Collection Account, in no event later than two Business Days after
the
deposit of good funds into the clearing account, as and when received or as
otherwise required hereunder, the following payments and collections received
or
made by it on or subsequent to the Cut-off Date other than amounts attributable
to a Due Date on or prior to the Cut-off Date:
(i) all
payments on account of principal, including Principal Prepayments, on the
related Mortgage Loans;
(ii) all
payments on account of interest (net of the related Servicing Fee and any
Prepayment Interest Excess) on each related Mortgage Loan;
(iii) all
Insurance Proceeds and Liquidation Proceeds (other than proceeds collected
in
respect of any particular REO Property) and all Subsequent Recoveries with
respect to the related Mortgage Loans;
(iv) any
amounts required to be deposited by the related Servicer pursuant to
Section 3.10 of this Agreement in connection with any losses realized on
Permitted Investments with respect to funds held in the related Collection
Account;
(v) any
amounts required to be deposited by the related Servicer pursuant to the second
paragraph of Section 3.11(a) of this Agreement in respect of any blanket
policy deductibles;
(vi) any
Purchase Price or Substitution Shortfall Amount delivered to the related
Servicer and all proceeds (net of amounts payable or reimbursable to the related
Servicer, the Master Servicer, the Trustee, the Custodians or the Securities
Administrator) of Mortgage Loans purchased in accordance with Section 2.03,
Section 3.13 or Section 10.01; and
(vii) any
Prepayment Charges collected by the related Servicer in connection with the
Principal Prepayment of any of the Mortgage Loans or amounts required to be
deposited by the related Servicer in connection with a breach of its obligations
under Section 2.05.
The
foregoing requirements for deposit in the related Collection Account shall
be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, Ancillary Income need not be deposited by the related Servicer
in the related Collection Account and may be retained by the related Servicer
as
additional compensation. In the event a Servicer shall deposit in the related
Collection Account any amount not required to be deposited therein, it may
at
any time withdraw such amount from the related Collection Account, any provision
herein to the contrary notwithstanding.
(b) On
behalf
of the Trust Fund, the Securities Administrator shall establish and maintain
one
or more accounts (such account or accounts, the “Distribution Account”), held in
trust for the benefit of the Trustee, the Trust Fund and the Certificateholders.
On behalf of the Trust Fund, each Servicer shall deliver to the Securities
Administrator in immediately available funds for deposit in the Distribution
Account on or before 12:00 noon New York time on the Servicer Remittance Date,
that portion of the Available Distribution Amount (calculated without regard
to
the references in clause (2) of the definition thereof to amounts that may
be
withdrawn from the Distribution Account) for the related Distribution Date
then
on deposit in the related Collection Account and the amount of all Prepayment
Charges collected by the related Servicer in connection with the Principal
Prepayment of any of the Mortgage Loans then on deposit in the related
Collection Account and the amount of any funds reimbursable to an Advance
Financing Person pursuant to Section 3.25 of this Agreement. If the balance
on
deposit in a Collection Account exceeds $100,000 as of the commencement of
business on any Business Day and such Collection Account constitutes an Eligible
Account solely pursuant to clause (ii) of the definition of “Eligible Account,”
the related Servicer shall, on or before 5:00 p.m. New York time on such
Business Day, withdraw from such Collection Account any and all amounts payable
or reimbursable to the Depositor, the related Servicer, the Trustee, the Master
Servicer, the Securities Administrator or the Sponsor pursuant to Section 3.09
and shall pay such amounts to the Persons entitled thereto or shall establish
a
separate Collection Account (which shall also be an Eligible Account) and
withdraw from the existing Collection Account the amount on deposit therein
in
excess of $100,000 and deposit such excess in the newly created Collection
Account.
With
respect to any remittance received by the Securities Administrator on the
Servicer Remittance Date on which such payment was due, the Securities
Administrator shall send written notice thereof to the related Servicer. The
related Servicer shall pay to the Securities Administrator interest on any
such
late payment by such Servicer at an annual rate equal to Prime Rate (as defined
in The
Wall Street Journal)
plus
one percentage point, but in no event greater than the maximum amount permitted
by applicable law. Such interest shall be paid by the related Servicer to the
Securities Administrator on the date such late payment is made and shall cover
the period commencing with the day following such Servicer Remittance Date
and
ending with the Business Day on which such payment is made, both inclusive.
The
payment by the related Servicer of any such interest, or the failure of the
Securities Administrator to notify the related Servicer of such interest, shall
not be deemed an extension of time for payment or a waiver of any Event of
Default by the related Servicer.
(c) Funds
in
the Collection Accounts and funds in the Distribution Account may be invested
in
Permitted Investments in accordance with the provisions set forth in Section
3.10. Each Servicer shall give notice to the Trustee, the Securities
Administrator and the Master Servicer of the location of the Collection Account
maintained by it when established and prior to any change thereof. The
Securities Administrator shall give notice to the Servicers and the Depositor
of
the location of the Distribution Account when established and prior to any
change thereof.
(d) Funds
held in a Collection Account at any time may be delivered by the related
Servicer in immediately available funds to the Securities Administrator for
deposit in the Distribution Account. In the event a Servicer shall deliver
to
the Securities Administrator for deposit in the Distribution Account any amount
not required to be deposited therein, it may at any time request that the
Securities Administrator withdraw such amount from the Distribution Account
and
remit to it any such amount, any provision herein to the contrary
notwithstanding. In no event shall the Securities Administrator incur liability
as a result of withdrawals from the Distribution Account at the direction of
a
Servicer in accordance with the immediately preceding sentence. In addition,
each Servicer shall deliver to the Securities Administrator no later than the
Servicer Remittance Date the amounts set forth in clauses (i) through (iv)
below:
(i) any
P&I Advances, as required pursuant to Section 5.03 of this
Agreement;
(ii) any
amounts required to be deposited pursuant to Section 3.21(d) or 3.21(f) of
this
Agreement in connection with any related REO Property;
(iii) any
amounts to be paid in connection with a purchase of Mortgage Loans and REO
Properties pursuant to Section 10.01 of this Agreement; and
(iv) any
amounts required to be deposited pursuant to Section 3.22 of this Agreement
in
connection with any Prepayment Interest Shortfalls.
SECTION
3.09. Withdrawals
from the Collection Accounts and Distribution Account.
(a) Each
Servicer shall, from time to time, make withdrawals from the related Collection
Account for any of the following purposes or as described in Section 5.03
of this Agreement:
(i) to
remit
to the Securities Administrator for deposit in the Distribution Account the
amounts required to be so remitted pursuant to Section 3.08(b) of this
Agreement or permitted to be so remitted pursuant to the first sentence of
Section 3.08(d) of this Agreement;
(ii) subject
to Section 3.13(d) of this Agreement, to reimburse itself (including any
successor Servicer) for P&I Advances made by it, but only to the extent of
amounts received which represent Late Collections (net of the related Servicing
Fees) of Monthly Payments or rental and other income from the related REO
Property on related Mortgage Loans with respect to which such P&I Advances
were made in accordance with the provisions of Section 5.03;
(iii) subject
to Section 3.13(d) of this Agreement, to pay itself any unpaid Servicing
Fees and reimburse itself any unreimbursed Servicing Advances with respect
to
each related Mortgage Loan, but only to the extent of any Liquidation Proceeds
and Insurance Proceeds received with respect to such related Mortgage Loan
or
rental and other income from the related REO Property;
(iv) to
pay to
itself as servicing compensation (in addition to the Servicing Fee or portion
thereof payable to the Servicer) on the Servicer Remittance Date any interest
or
investment income earned on funds deposited in the related Collection
Account;
(v) to
pay to
itself or the Sponsor, as the case may be, with respect to each related Mortgage
Loan that has previously been purchased or replaced pursuant to
Section 2.03 or Section 3.13(c) of this Agreement all amounts received
thereon not included in the Purchase Price or the Substitution Shortfall
Amount;
(vi) to
reimburse itself (including any successor to the related Servicer)
for
(A) any
P&I Advance or Servicing Advance previously made by it which the related
Servicer has determined to be a Nonrecoverable P&I Advance or a
Nonrecoverable Servicing Advance in accordance with the provisions of Section
5.03 provided however, that no Servicer shall be entitled to reimbursement
for
any Servicing Advance made prior to the Cut-off Date if such Servicer determines
that such Servicing Advance constitutes a Nonrecoverable Servicing Advance
of
this Agreement; or
(B) any
unpaid Servicing Fees to the extent not recoverable from Liquidation Proceeds,
Insurance Proceeds or other amounts received with respect to the related
Mortgage Loan under clause (iii) of this Agreement;
(vii) to
reimburse itself or the Depositor for expenses incurred by or reimbursable
to
itself or the Depositor, as the case may be, pursuant to Section 3.01 or Section
7.03 of this Agreement;
(viii) to
reimburse itself or the Trustee, as the case may be, for expenses reasonably
incurred in respect of the breach or defect giving rise to the purchase
obligation under Section 2.03 of this Agreement that were included in the
Purchase Price of the related Mortgage Loan, including any expenses arising
out
of the enforcement of the purchase obligation;
(ix) to
pay,
or to reimburse itself for advances in respect of, expenses incurred in
connection with any related Mortgage Loan pursuant to Section 3.13(b) of this
Agreement;
(x) to
pay to
itself any Prepayment Interest Excess on the related Mortgage Loans to the
extent not retained pursuant to Section 3.08(a)(ii)) of this Agreement;
and
(xi) to
clear
and terminate the Collection Accounts pursuant to Section 10.01 of this
Agreement.
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 Collection Account, to the extent held by or on behalf of it, pursuant
to subclauses (ii), (iii), (v), (vi), (vii), (viii), (ix) and (x)
above.
(b) The
Securities Administrator shall, from time to time, make withdrawals from the
Distribution Account, for any of the following purposes, without
priority:
(i) to
make
distributions to Certificateholders in accordance with Section 5.01 of this
Agreement;
(ii) to
pay to
itself, the Custodians and the Master Servicer amounts to which it is entitled
pursuant to Section 9.05 of this Agreement or any other provision of this
Agreement and any Extraordinary Trust Fund Expenses;
(iii) to
reimburse itself or the Master Servicer pursuant to Section 8.02 of this
Agreement;
(iv) to
pay
any Net Swap Payment or Swap Termination Payment payable to the Supplemental
Interest Trust (unless the Swap Provider is the sole Defaulting Party or the
sole Affected Party (as defined in the Swap Agreement)) owed to the Swap
Provider;
(v) to
pay
any amounts in respect of taxes pursuant to Section 11.01(g)(v) of this
Agreement;
(vi) to
pay
the Master Servicing Fee to the Master Servicer;
(vii) to
pay
the Credit Risk Management Fee to the Credit Risk Manager;
(viii) to
pay
the Excess Servicing Fee, if any, to the Class CE-2 Certificateholder pursuant
to Section 5.01(b); and
(ix) to
clear
and terminate the Distribution Account pursuant to Section 10.01 of this
Agreement.
SECTION
3.10. Investment
of Funds in the Investment Accounts.
(a) Each
Servicer may direct, by means of written directions (which may be standing
directions), any depository institution maintaining the related Collection
Account to invest the funds in such Collection Account (for purposes of this
Section 3.10, an “Investment Account”) in one or more Permitted Investments
bearing interest or sold at a discount, and maturing, unless payable on demand,
(i) no later than the Business Day immediately preceding the date on which
such
funds are required to be withdrawn from such account pursuant to this Agreement,
if a Person other than the Securities Administrator is the obligor thereon,
and
(ii) no later than the date on which such funds are required to be withdrawn
from such account pursuant to this Agreement, if the Securities Administrator
is
the obligor on such Permitted Investment. Amounts in the Distribution Account
may be invested in Permitted Investments as directed in writing by the Master
Servicer and maturing, unless payable on demand, (i) no later than the Business
Day immediately preceding the date on which such funds are required to be
withdrawn from such account pursuant to this Agreement, if a Person other than
the Securities Administrator is the obligor thereon, and (ii) no later than
the
date on which such funds are required to be withdrawn from such account pursuant
to this Agreement, if the Securities Administrator is the obligor thereon.
All
such Permitted Investments shall be held to maturity, unless payable on demand.
Any investment of funds shall be made in the name of the Trustee (in its
capacity as such) or in the name of a nominee of the Trustee. The Securities
Administrator shall be entitled to sole possession over each such investment
in
the Distribution Account and, subject to subsection (b) below, the income
thereon, and any certificate or other instrument evidencing any such investment
shall be delivered directly to the Securities Administrator or its agent,
together with any document of transfer necessary to transfer title to such
investment to the Trustee or its nominee. In the event amounts on deposit in
a
Collection Account are at any time invested in a Permitted Investment payable
on
demand, the party with investment discretion over such Investment Account
shall:
(x) consistent
with any notice required to be given thereunder, demand that payment thereon
be
made on the last day such Permitted Investment may otherwise mature hereunder
in
an amount equal to the lesser of (1) all amounts then payable thereunder and
(2)
the amount required to be withdrawn on such date; and
(y) demand
payment of all amounts due thereunder promptly upon receipt by such party of
written notice from the related Servicer that such Permitted Investment would
not constitute a Permitted Investment in respect of funds thereafter on deposit
in the Investment Account.
(b) All
income and gain realized from the investment of funds deposited in a Collection
Account, shall be for the benefit of such Servicer and shall be subject to
its
withdrawal in accordance with Section 3.09. Each Servicer shall deposit in
the
related Collection Account maintained by it the amount of any loss incurred
in
respect of any such Permitted Investment made with funds in such account
immediately upon realization of such loss. All earnings and gain realized from
the investment of funds deposited in the Distribution Account shall be for
the
benefit of the Master Servicer. The Master Servicer shall remit from its own
funds for deposit into the Distribution Account the amount of any loss incurred
on Permitted Investments in the Distribution Account.
(c) Except
as
otherwise expressly provided in this Agreement, if any default occurs in the
making of a payment due under any Permitted Investment, or if a default occurs
in any other performance required under any Permitted Investment, the Trustee
may and, subject to Section 9.01 and Section 9.02(a)(v), shall, at the written
direction of the related Servicer, take such action as may be appropriate to
enforce such payment or performance, including the institution and prosecution
of appropriate proceedings.
(d) The
Trustee, the Master Servicer or their respective Affiliates are permitted to
receive additional compensation that could be deemed to be in the Trustee’s or
the Master Servicer’s economic self-interest for (i) serving as investment
adviser, administrator, shareholder servicing agent, custodian or sub-custodian
with respect to certain of the Permitted Investments, (ii) using Affiliates
to
effect transactions in certain Permitted Investments and (iii) effecting
transactions in certain Permitted Investments. Such compensation shall not
be
considered an amount that is reimbursable or payable to the Trustee or the
Master Servicer pursuant to Section 3.09 or 3.10 or otherwise payable in respect
of Extraordinary Trust Fund Expenses. Such additional compensation shall not
be
an expense of the Trust Fund.
SECTION
3.11. Maintenance
of Hazard Insurance, Errors and Omissions and Fidelity Coverage and Primary
Mortgage Insurance.
(a) The
terms
of each Mortgage Note require the related Mortgagor to maintain fire, flood
and
hazard insurance policies. To the extent such policies are not maintained,
the
related Servicer shall cause to be maintained for each Mortgaged Property fire
and hazard insurance with extended coverage as is customary in the area where
the Mortgaged Property is located in an amount which is at least equal to the
lesser of the current principal balance of the related Mortgage Loan and the
amount necessary to compensate fully for any damage or loss to the improvements
which 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 fire and hazard insurance on each
REO
Property with extended coverage as is customary in the area where the Mortgaged
Property is located in an amount which is at least equal to the lesser of (i)
the maximum insurable value of the improvements which are a part of such
property and (ii) the sum of the outstanding principal balance of the related
Mortgage Loan and the related First 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 to be collected by a Servicer under any such policies
remaining after application of any such amounts to any related First Mortgage
Loan and application of amounts to the restoration or repair of the property
subject to the related Mortgage or amounts to be released to the Mortgagor
in
accordance with Accepted Servicing Practices, subject to the terms and
conditions of the related Mortgage and Mortgage Note shall be deposited in
the
related Collection Account, subject to withdrawal pursuant to Section 3.09,
if
received in respect of a Mortgage Loan, or in the REO Account, subject to
withdrawal pursuant to Section 3.21, if received in respect of an REO Property.
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
unpaid principal balance of the related Mortgage Loan, notwithstanding that
the
terms of such Mortgage Loan so permit. It is understood and agreed that no
earthquake or other additional insurance is to be required of any Mortgagor
other than pursuant to such applicable laws and regulations as shall at any
time
be in force and as shall require such additional insurance. If the Mortgaged
Property 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, the related Servicer will cause to be maintained a flood insurance
policy in respect thereof. Such flood insurance shall be in an amount equal
to
the lesser of (i) the unpaid principal balance of the related Mortgage Loan
and
(ii) the maximum amount of such insurance available for the related Mortgaged
Property under the national flood insurance program (assuming that the area
in
which such Mortgaged Property is located is participating in such
program).
In
the
event that the related 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 otherwise acceptable to ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac insuring against
hazard losses on all of the related Mortgage Loans, it shall conclusively be
deemed to have satisfied its obligations to cause fire and hazard insurance
to
be maintained on the Mortgaged Properties, 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 3.11, and there shall have been one or more losses
which would have been covered by such policy, deposit to the related Collection
Account from its own funds the amount not otherwise payable under the blanket
policy because of such deductible clause. In connection with its activities
as
administrator and servicer of the related Mortgage Loans, the related Servicer
agrees to prepare and present, on behalf of itself, the Trustee, the Trust
Fund,
the Certificateholders, claims under any such blanket policy in a timely fashion
in accordance with the terms of such policy.
(b) Each
Servicer shall keep in force during the term of this Agreement a policy or
policies of insurance covering errors and omissions for failure in the
performance of its respective obligations under this Agreement, which policy
or
policies shall be in such form and amount that would meet the requirements
of
▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac if it were the purchaser of the related Mortgage
Loans, unless the related Servicer, has obtained a waiver of such requirements
from ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac. Each Servicer shall also maintain a fidelity
bond in the form and amount that would meet the requirements of ▇▇▇▇▇▇ Mae
or
▇▇▇▇▇▇▇ Mac, unless the related Servicer, has obtained a waiver of such
requirements from ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ 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
such 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.
(c) A
Servicer need not obtain the approval of the Master Servicer prior to releasing
any Insurance Proceeds to the Mortgagor to be applied to the restoration or
repair of the Mortgaged Property if such release is in accordance with Accepted
Servicing Practices. At a minimum, each Servicer shall comply with the following
conditions in connection with any such release of Insurance Proceeds in excess
of $10,000:
(i) such
Servicer shall receive satisfactory independent verification of completion
of
repairs and issuance of any required approvals with respect
thereto;
(ii) such
Servicer shall take all steps necessary to preserve the priority of the lien
of
the Mortgage, including, but not limited to requiring waivers with respect
to
mechanics’ and materialmen’s liens; and
(iii) pending
repairs or restoration, such Servicer shall place the Insurance Proceeds in
the
related Escrow Account, if any.
If
the
Trustee is named as an additional loss payee, the related Servicer is hereby
empowered to endorse any loss draft issued in respect of such a claim in the
name of the Trustee.
SECTION
3.12. Enforcement
of Due-on-Sale Clauses; Assumption Agreements.
Each
Servicer shall, to the extent it has knowledge of any conveyance of any related
Mortgaged Property by any related Mortgagor (whether by absolute conveyance
or
by contract of sale, and whether or not the Mortgagor remains or is to remain
liable under the Mortgage Note and/or the Mortgage), exercise its rights to
accelerate the maturity of such Mortgage Loan under the “due-on-sale” clause, if
any, applicable thereto; provided, however, that no Servicer shall exercise
any
such rights if prohibited by law from doing so. If a Servicer reasonably
believes that it is unable under applicable law to enforce such “due-on-sale”
clause, or if any of the other conditions set forth in the proviso to the
preceding sentence apply, such Servicer shall enter into an assumption and
modification agreement from or with the person to whom such property has been
conveyed or is proposed to be conveyed, pursuant to which such person becomes
liable under the Mortgage Note and, to the extent permitted by applicable state
law, the Mortgagor remains liable thereon. Each Servicer is also authorized
to
enter into a substitution of liability agreement with such person, pursuant
to
which the original Mortgagor is released from liability and such person is
substituted as the Mortgagor and becomes liable under the Mortgage Note,
provided that no such substitution shall be effective unless such person
satisfies the then current underwriting criteria of the related Servicer for
mortgage loans similar to the related Mortgage Loans. In connection with any
assumption or substitution, the related Servicer shall apply such underwriting
standards and follow such practices and procedures as shall be normal and usual
in its general mortgage servicing activities and as it applies to other mortgage
loans owned solely by it. No Servicer shall take or enter into any assumption
and modification agreement, however, unless (to the extent practicable in the
circumstances) it shall have received confirmation, in writing, of the continued
effectiveness of any applicable hazard insurance policy. Any fee collected
by a
Servicer in respect of an assumption or substitution of liability agreement
will
be retained by such Servicer as additional servicing compensation. In connection
with any such assumption, no material term of the Mortgage Note (including
but
not limited to the related Mortgage Rate and the amount of the Monthly Payment)
may be amended or modified, except as otherwise required pursuant to the terms
thereof. Each Servicer shall notify the Trustee (or the applicable Custodian)
that any such substitution or assumption agreement has been completed by
forwarding to the Trustee (or the applicable Custodian) the executed original of
such substitution or assumption agreement, which document shall be added to
the
related Mortgage File and shall, for all purposes, be considered a part of
such
Mortgage File to the same extent as all other documents and instruments
constituting a part thereof.
Notwithstanding
the foregoing paragraph or any other provision of this Agreement, no Servicer
shall be deemed to be in default, breach or any other violation of its
obligations hereunder by reason of any assumption of a Mortgage Loan by
operation of law or by the terms of the Mortgage Note or any assumption which
the related Servicer may be restricted by law from preventing, for any reason
whatever. For purposes of this Section 3.12, the term “assumption” is deemed to
also include a sale (of the Mortgaged Property) subject to the Mortgage that
is
not accompanied by an assumption or substitution of liability
agreement.
SECTION
3.13. Realization
Upon Defaulted Mortgage Loans.
(a) (i)
Each
Servicer shall use its commercially reasonable efforts, consistent with Accepted
Servicing Practices, to foreclose upon or otherwise comparably convert the
ownership of properties securing such of the Mortgage Loans as come into and
continue in default and as to which no satisfactory arrangements can be made
for
collection of delinquent payments pursuant to Section 3.06. With respect to
such
of the Mortgage Loans as come into and continue in default, each Servicer will
decide whether to (i) foreclose upon the Mortgaged Properties securing such
Mortgage Loans, (ii) write off the unpaid principal balance of the Mortgage
Loans as bad debt, (iii) take a deed in lieu of foreclosure, (iv) accept a
short
sale (a payoff of the Mortgage Loan for an amount less than the total amount
contractually owed in order to facilitate a sale of the Mortgaged Property
by
the Mortgagor) or permit a short refinancing (a payoff of the Mortgage Loan
for
an amount less than the total amount contractually owed in order to facilitate
refinancing transactions by the Mortgagor not involving a sale of the Mortgaged
Property), (v) arrange for a repayment plan, or (vi) agree to a modification
in
accordance with this Agreement. In connection with such decision, the related
Servicer shall take such action as (i) such Servicer would take under similar
circumstances with respect to a similar mortgage loan held for its own account
for investment, (ii) shall be consistent with Accepted Servicing Practices,
(iii) such Servicer shall determine consistently with Accepted Servicing
Practices to be in the best interest of the Trustee and Certificateholders,
provided, that actions taken by a Servicer in connection with its servicing
of
the related First Mortgage Loan shall not be considered relevant to a
determination of whether such Servicer has met the standard set forth in this
clause (iii) so long as in such Servicer’s determination such action is not
materially adverse to the interests of the Certificateholders and (iv) is
consistent with the requirements of the insurer under any insurance policy
required to be maintained under this Agreement; provided, however, that such
Servicer shall not be required to expend its own funds in connection with any
foreclosure or towards the restoration of any property unless it shall determine
in its sole discretion (i) that such restoration and/or foreclosure will
increase the proceeds of liquidation of the related Mortgage Loan after
reimbursement to itself of such expenses and (ii) that such expenses will be
recoverable to it through Liquidation Proceeds (respecting which it shall have
priority for purposes of withdrawals from the related Collection Account).
Each
Servicer shall be responsible for all costs and expenses incurred by it in
any
such proceedings; provided, however, that such costs and expenses will be
recoverable as Servicing Advances by the Servicers as contemplated in Sections
3.09 and 3.21. The foregoing is subject to the provision that, in any case
in
which a Mortgaged Property shall have suffered damage from an Uninsured Cause,
the related Servicer shall not be required to expend its own funds toward the
restoration of such property unless it shall determine in its discretion that
such restoration will increase the proceeds of liquidation of the related
Mortgage Loan after reimbursement to itself for such expenses.
(ii) Notwithstanding
anything to the contrary contained in this Agreement, with respect to any
Mortgage Loan that is one hundred twenty (120) days delinquent, the related
Servicer shall obtain a broker’s price opinion with respect to the related
Mortgaged Property and shall use all reasonable efforts to obtain a total
indebtedness balance (including, but not limited to, unpaid principal, interest,
escrows, taxes and expenses) for any related First Lien. The cost of obtaining
any such broker’s price opinion shall be reimbursable to the related Servicer as
a Servicing Advance pursuant to Section 3.09. After obtaining the related
broker’s price opinion, the related Servicer will determine whether any
Significant Subsequent Recovery is possible through foreclosure proceedings
or
other liquidation of the related Mortgaged Property. If the related Servicer
determines that (x) no Significant Subsequent Recovery is possible or (y) the
potential Subsequent Recoveries are anticipated to be an amount, determined
by
the related Servicer in its good faith judgment and in light of other mitigating
circumstances, that is insufficient to warrant proceeding through foreclosure
or
other liquidation of the related Mortgaged Property, it may, at its discretion,
charge off such delinquent Mortgage Loan in accordance with subsections (a)(iii)
and (a)(iv) below.
(iii) With
respect to any Mortgage Loan, if the related Servicer determines based on the
broker’s price opinion obtained under paragraph (a)(ii) above and other relevant
considerations that (x) no Significant Subsequent Recovery is possible through
foreclosure proceedings or other liquidation of the related Mortgaged Property
or (y) the potential Subsequent Recoveries are anticipated to be an amount,
determined by the related Servicer in its good faith judgment and in light
of
other mitigating circumstances, that is insufficient to warrant proceeding
through foreclosure or other liquidation of the related Mortgaged Property,
it
will be obligated to charge off the related Mortgage Loan at the time such
Mortgage Loan becomes 180 days delinquent. Once a Mortgage Loan has been charged
off, the related Servicer will discontinue making P&I Advances, the related
Servicer will not be entitled to any additional servicing compensation (except
as described in paragraphs(a)(ii) or (a)(iv) of this Section 3.13), the Charged
Off Loan will give rise to a Realized Loss, and the related Servicer will follow
the procedures described in paragraph (a)(iv) below. If the related Servicer
determines that (x) a Significant Subsequent Recovery is possible through
foreclosure proceedings or other liquidation of the Mortgaged Property and
(y)
the potential Subsequent Recoveries are anticipated to be an amount, determined
by the related Servicer in its good faith judgment and in light of other
mitigating circumstances, that is sufficient to warrant proceeding through
foreclosure or other liquidation of the related Mortgaged Property, such
Servicer may continue to make P&I Advances or Servicing Advances on the
related Mortgage Loan that has become 180 days delinquent and will notify the
Credit Risk Manager of that decision.
(iv) Any
Mortgage Loan that becomes a Charged Off Loan may continue to be serviced by
the
related Servicer for the Certificateholders using Special Servicing Practices.
The related Servicer will accrue, but not be entitled to any Servicing Fees
and
reimbursement of expenses in connection with such Charged Off Loans, except
to
the extent of funds available from the aggregate amount of recoveries on all
Charged Off Loans. Such aggregate recovery amounts on Charged Off Loans shall
be
paid to the related Servicer first, as reimbursement of any outstanding and
unpaid expenses, and second, as any accrued and unpaid Servicing Fees. The
Servicers will only be entitled to previously accrued Servicing Fees and
expenses on any such Charged Off Loans. The Servicers will not be entitled
to
receive any future unaccrued Servicing Fees or expenses from collections on
such
Charged Off Loans. Any Charged Off Loan serviced using Special Servicing
Practices shall be so serviced until the Mortgage Loan Release Date described
below. Any amounts received on such Charged Off Loans received prior to the
Mortgage Loan Release Date will be treated as Subsequent Recoveries and included
in the Available Distribution Amount.
On
the
date (the “Mortgage Loan Release Date”) which is no more than six months after
the date on which a Servicer begins servicing any Charged Off Loans using
Special Servicing Practices, unless Subsequent Recoveries are anticipated by
the
related Servicer on a particular Charged Off Loan (in which case the Mortgage
Loan Release Date will be delayed until all such anticipated Subsequent
Recoveries are received), such Charged Off Loan will be released from the Trust
Fund, will no longer be an asset of any Trust REMIC, and will be transferred
to
the Class CE-2 Certificateholders, without recourse, and thereafter (i) the
Class CE-2 Certificateholders will be entitled to any amounts subsequently
received in respect of any such Released Loans, (ii) the Holders of a majority
in Percentage Interest in the Class CE-2 Certificates may designate any servicer
to service any such Released Loan and (iii) the Holders of a majority in
Percentage Interest in the Class CE-2 Certificates may sell any such Released
Loan to a third party. Notwithstanding the previous sentence, if at any time
after a Mortgage Loan has been Charged Off and prior to six months after the
date on which a Servicer begins servicing such Charged Off Loan using Special
Servicing Practices, the related Servicer determines that there will not be
any
Subsequent Recoveries on such Charged Off Loan under any circumstances, such
Servicer may release such Charged Off Loan to the Holders of a majority in
Percentage Interest in the Class CE-2 Certificates in accordance with the
provisions set forth in the previous sentence.
Notwithstanding
the foregoing, the procedures described above in this subsection 3.13(a)(iv)
relating to the treatment of Charged Off Loans may be modified at any time
at
the discretion of the Holders of a majority in Percentage Interest in the Class
CE-1 Certificates, with the consent of the related Servicer, which consent
shall
not be unreasonably withheld; provided, however, that in no event shall the
Holders of a majority in Percentage Interest in the Class CE-1 Certificates
change the fee structure relating to Charged Off Loans in a manner that would
cause fees to be paid to the related Servicer other than from recoveries on
Charged Off Loans.
The
Master Servicer shall track collections received by the Servicers on any Charged
Off Loans based upon loan level data provided to the Master Servicer by the
Servicers on the date on which the Servicer provides its Servicer Report
pursuant to Section 5.03(a), identifying the Charged Off Loans as of the related
Due Period that the related Servicer will continue to service until the related
Mortgage Loan Release Date using Special Servicing Practices. On each
Distribution Date, the Master Servicer shall verify, based on the recovery
and
expense information provided by the related Servicer (i) the aggregate amount
of
accrued and unpaid Servicing Fees to be paid to such Servicer and expenses
to be
reimbursed to the related on such Charged Off Loans as of the related Due Period
and (ii) the amount of Subsequent Recoveries on such Charged Off Loans for
such
Distribution Date. The Master Servicer shall be entitled to rely, without
independent verification, on the loan level data provided by the Servicers
that
identifies the recovery amounts and the outstanding and unpaid expenses on
any
Charged Off Loan in order to verify the amount in clause (ii) of the previous
sentence. The Master Servicer will be responsible for independently verifying
the aggregate amount of accrued and unpaid Servicing Fees described in clause
(i) of the second preceding sentence to be paid to the Servicers.
(b) Notwithstanding
the foregoing provisions of this Section 3.13 or any other provision of this
Agreement, with respect to any Mortgage Loan as to which the related Servicer
has received actual notice of, or has actual knowledge of, the presence of
any
toxic or hazardous substance on the related Mortgaged Property, such Servicer
shall not, on behalf of the Trust Fund, either (i) obtain title to such
Mortgaged Property as a result of or in lieu of foreclosure or otherwise, or
(ii) otherwise acquire possession of, or take any other action with respect
to,
such Mortgaged Property, if, as a result of any such action, the Trust Fund,
the
Trustee or the Certificateholders would be considered to hold title to, to
be a
“mortgagee-in-possession” of, or to be an “owner” or “operator” of such
Mortgaged Property within the meaning of the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended from time to time,
or any comparable law, unless such Servicer has also previously determined,
based on its reasonable judgment and a prudent report prepared by an Independent
Person who regularly conducts environmental audits using customary industry
standards, that:
(1) such
Mortgaged Property is in compliance with applicable environmental laws or,
if
not, that it would be in the best economic interest of the Trust Fund to take
such actions as are necessary to bring the Mortgaged Property into compliance
therewith; and
(2) there
are
no circumstances present at such Mortgaged Property relating to the use,
management or disposal of any hazardous substances, hazardous materials,
hazardous wastes or petroleum-based materials for which investigation, testing,
monitoring, containment, clean-up or remediation could be required under any
federal, state or local law or regulation, or that if any such materials are
present for which such action could be required, that it would be in the best
economic interest of the Trust Fund to take such actions with respect to the
affected Mortgaged Property.
The
cost
of the environmental audit report contemplated by this Section 3.13 shall be
advanced by the related Servicer, subject to the related Servicer’s right to be
reimbursed therefor from the related Collection Account as provided in Section
3.09(a)(ix), such right of reimbursement being prior to the rights of
Certificateholders to receive any amount in the related Collection Account
received in respect of the affected Mortgage Loan or other Mortgage
Loans.
If
the
related Servicer determines, as described above, that it is in the best economic
interest of the Trust Fund to take such actions as are necessary to bring any
such Mortgaged Property into compliance with applicable environmental laws,
or
to take such action with respect to the containment, clean-up or remediation
of
hazardous substances, hazardous materials, hazardous wastes, or petroleum-based
materials affecting any such Mortgaged Property, then the related Servicer
shall
take such action as it deems to be in the best economic interest of the Trust
Fund. The cost of any such compliance, containment, cleanup or remediation
shall
be advanced by the related Servicer, subject to the related Servicer’s right to
be reimbursed therefor from the related Collection Account as provided in
Sections 3.09(a)(iii) or 3.09(a)(ix), such right of reimbursement being prior
to
the rights of Certificateholders to receive any amount in the related Collection
Account received in respect of the affected Mortgage Loan or other Mortgage
Loans.
(c) Proceeds
received in connection with any Final Recovery Determination, as well as any
recovery resulting from a partial collection of Insurance Proceeds or
Liquidation Proceeds, in respect of any Mortgage Loan, will be applied in the
following order of priority: first, to reimburse the related Servicer for any
related unreimbursed Servicing Advances and P&I Advances, pursuant to
Section 3.09(a)(ii) or (a)(iii); second, to accrued and unpaid interest on
the
Mortgage Loan, to the date of the Final Recovery Determination, or to the Due
Date prior to the Distribution Date on which such amounts are to be distributed
if not in connection with a Final Recovery Determination; and third, as a
recovery of principal of the Mortgage Loan. If the amount of the recovery so
allocated to interest is less than the full amount of accrued and unpaid
interest due on such Mortgage Loan, the amount of such recovery will be
allocated by the related Servicer as follows: first, to unpaid Servicing Fees;
and second, to the balance of the interest then due and owing. The portion
of
the recovery so allocated to unpaid Servicing Fees shall be reimbursed to the
related Servicer pursuant to Section 3.09(a)(iii). The portion of the recovery
allocated to interest (net of unpaid Servicing Fees) and the portion of the
recovery allocated to principal of the Mortgage Loan shall be applied as
follows: first, to reimburse the related Servicer for any related unreimbursed
Servicing or P&I Advances in accordance with Section 3.09(a)(ii) and any
other amounts reimbursable to the related Servicer pursuant to Section 3.09,
and
second, as part of the amounts to be transferred to the Distribution Account
in
accordance with Section 3.08(b). Excess proceeds, if any, from the liquidation
of a Liquidated Mortgage Loan will be retained by the related Servicer as
additional servicing compensation pursuant to Section 3.15.
SECTION
3.14. Trustee
to Cooperate; 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
applicable Custodian, on behalf of the Trustee, two copies of a request for
release substantially in the form attached to the respective Custodial Agreement
signed by a Servicing Officer or in a mutually agreeable electronic format
which
will, in lieu of a signature on its face, originate from a Servicing Officer
(which certification shall include a statement to the effect that all amounts
received in connection with such payment that are required to be deposited
in
the related Collection Account have been or will be so deposited) and shall
request that the applicable Custodian, on behalf of the Trustee, deliver to
the
related Servicer the related Mortgage File. Upon receipt of such certification
and request, the applicable Custodian, on behalf of the Trustee, shall within
five (5) Business Days release the related Mortgage File to the related Servicer
and the applicable Custodian shall have no further responsibility with regard
to
such Mortgage File. Upon any such payment in full, the related Servicer is
authorized to give, as agent for the Trustee, as the mortgagee under the
Mortgage that secured the Mortgage Loan, an instrument of satisfaction (or
assignment of mortgage without recourse) regarding the Mortgaged Property
subject to the Mortgage, which instrument of satisfaction or assignment, as
the
case may be, shall be delivered to the Person or Persons entitled thereto
against receipt therefor of such payment, it being understood and agreed that
no
expenses incurred in connection with such instrument of satisfaction or
assignment, as the case may be, shall be chargeable to the related Collection
Account, unless it shall represent a Servicing Advance.
(b) From
time
to time and as appropriate for the servicing or foreclosure of any Mortgage
Loan, 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 applicable Custodian, on behalf of the Trustee, shall, upon the request
of
the related Servicer, and delivery to the applicable Custodian, on behalf of
the
Trustee, of two copies of a request for release signed by a Servicing Officer
substantially in the form attached to the respective Custodial Agreement (or
in
a mutually agreeable electronic format which will, in lieu of a signature on
its
face, originate from a Servicing Officer), release within five (5) Business
Days
the related Mortgage File held in its possession or control to the related
Servicer. Such trust receipt shall obligate the related Servicer to return
the
Mortgage File to the applicable Custodian on behalf of the Trustee, when the
need therefor by the related Servicer no longer exists unless the Mortgage
Loan
shall be liquidated, in which case, upon receipt of a certificate of a Servicing
Officer similar to that hereinabove specified, the Mortgage File shall be
released by the applicable Custodian, on behalf of the Trustee, to the related
Servicer.
Notwithstanding
the foregoing, in connection with a Principal Prepayment in full of any Mortgage
Loan, the Master Servicer may request release of the related Mortgage File
from
the applicable Custodian, in accordance with the provisions of the respective
Custodial Agreement, in the event the related Servicer fails to do
so.
Upon
written certification of a Servicing Officer, the Trustee shall execute and
deliver to the related Servicer, any court pleadings, requests for trustee’s
sale or other documents prepared and delivered to the Trustee and reasonably
acceptable to it and necessary to the foreclosure or trustee’s sale in respect
of a Mortgaged Property or to any legal action brought to obtain judgment
against any Mortgagor on the Mortgage Note or Mortgage or to obtain a deficiency
judgment, or to enforce any other remedies or rights provided by the Mortgage
Note or Mortgage or otherwise available at law or in equity. Each such
certification shall include a request that such pleadings or documents be
executed by the Trustee and a statement as to the reason such documents or
pleadings are required and that the execution and delivery thereof by the
Trustee will not invalidate or otherwise affect the lien of the Mortgage, except
for the termination of such a lien upon completion of the foreclosure or
trustee’s sale. So long as no Servicer Event of Default shall have occurred and
be continuing, the related Servicer shall have the right to execute any and
all
such court pleadings, requests and other documents as attorney-in-fact for,
and
on behalf of the Trustee.
SECTION
3.15. Servicing
Compensation.
As
compensation for its activities hereunder, each Servicer shall be entitled
to
the Servicing Fee (or, with respect to Ocwen, the Ocwen Servicing Fee and with
respect to GMAC, the GMAC Servicing Fee) with respect to each Mortgage Loan
serviced by it payable solely from payments of interest in respect of such
Mortgage Loan, subject to Section 3.22. In addition, each Servicer shall be
entitled to recover unpaid Servicing Fees out of Insurance Proceeds or
Liquidation Proceeds to the extent permitted by Section 3.09(a)(iii),
Section 3.09(a)(vi) and out of amounts derived from the operation and sale
of an
REO Property to the extent permitted by Section 3.21. The right to receive
the Servicing Fee(or, with respect to Ocwen, the Ocwen Servicing Fee and with
respect to GMAC, the GMAC Servicing Fee) may not be transferred in whole or
in
part except in connection with the transfer of all of a Servicer’s
responsibilities and obligations under this Agreement to the extent permitted
herein.
Additional
servicing compensation in the form of Ancillary Income (other than Prepayment
Charges) shall be retained by the related Servicer only to the extent such
fees
or charges are received by the related Servicer. Each Servicer shall also be
entitled pursuant to Section 3.09(a)(iv) to withdraw from the related
Collection Account and pursuant to Section 3.21(b) to withdraw from any REO
Account, as additional servicing compensation, interest or other income earned
on deposits therein, subject to Section 3.10. In addition, the related
Servicer shall be entitled to retain or withdraw from the related Collection
Account, pursuant to Section 3.09(a)(x), any Prepayment Interest Excess
with respect to the Mortgage Loans serviced by it as additional servicing
compensation. Each Servicer shall be required to pay all expenses incurred
by it
in connection with its servicing activities hereunder and shall not be entitled
to reimbursement therefor except as specifically provided herein.
SECTION
3.16. Collection
Account Statements.
Upon
request, not later than fifteen (15) days after each Distribution Date, each
Servicer shall forward to the Master Servicer, the Securities Administrator,
the
Trustee and the Depositor a statement prepared by the institution at which
the
related Collection Account is maintained setting forth the status of the related
Collection Account as of the close of business on such Distribution Date and
showing, for the period covered by such statement, the aggregate amount of
deposits into and withdrawals from the related Collection Account. Copies of
such statement and any similar statements provided by each Servicer shall be
provided by the Securities Administrator to any Certificateholder and to any
Person identified to the Securities Administrator as a prospective transferee
of
a Certificate, upon request at the expense of the requesting party, provided
such statement is delivered by each Servicer to the Securities
Administrator.
SECTION
3.17. Annual
Statement as to Compliance.
(a) Each
Servicer shall deliver (and shall cause any Additional Servicer engaged by
it to
deliver) to the Master Servicer and the Depositor on or before March 15 of
each
year, commencing in March 2007, an Officer’s Certificate stating, as to the
signer thereof, that (A) a review of such party’s activities during the
preceding calendar year or portion thereof and of such Servicer’s performance
under this Agreement, or such other applicable agreement in the case of an
Additional Servicer, has been made under such officer’s supervision and (B) to
the best of such officer’s knowledge, based on such review, such party has
fulfilled all its obligations under this Agreement, or such other applicable
agreement in the case of an Additional Servicer, in all material respects
throughout such year or portion thereof, or, if there has been a failure to
fulfill any such obligation in any material respect, specifying each such
failure known to such officer and the nature and status thereof. Promptly after
receipt of each such Officer’s Certificate from a Servicer or any Additional
Servicer engaged by a Servicer, the Depositor shall review such Officer’s
Certificate and, if applicable, consult with each such party, as applicable,
as
to the nature of any failures by such party, in the fulfillment of any of such
Servicer’s obligations hereunder or, in the case of an Additional Servicer,
under such other applicable agreement.
(b) Failure
of a Servicer to comply timely with this Section 3.17 shall be deemed a Servicer
Event of Default as to such Servicer, automatically, without notice and without
any cure period, and the Master Servicer may, in addition to whatever rights
the
Master Servicer may have under this Agreement and at law or in equity or to
damages, including injunctive relief and specific performance, terminate all
the
rights and obligations of such Servicer under this Agreement and in and to
the
Mortgage Loans and the proceeds thereof without compensating such Servicer
for
the same (other than the Servicer’s right to reimbursement of ▇▇▇▇▇▇▇▇▇▇▇▇
▇&▇ Advances and Servicing Advances and accrued and unpaid Servicing Fees in
the manner provided in this Agreement). This paragraph shall supersede any
other
provision in this Agreement or any other agreement to the contrary.
SECTION
3.18. Assessments
of Compliance and Attestation Reports.
(a) By
March
15 of each year, commencing in March 2007, each Servicer, at its own expense,
shall furnish, and shall cause any Servicing Function Participant engaged by
it
to furnish, each at its own expense, to the Master Servicer, a report on an
assessment of compliance with the Relevant Servicing Criteria that contains
(A)
a statement by such party of its responsibility for assessing compliance with
the Relevant Servicing Criteria, (B) a statement that such party used the
Relevant Servicing Criteria to assess compliance with the Relevant Servicing
Criteria, (C) such party’s assessment of compliance with the Relevant Servicing
Criteria as of and for the fiscal year covered by the Form 10-K required to
be
filed pursuant to Section 5.06(d), including, if there has been any material
instance of noncompliance with the Relevant Servicing Criteria, a discussion
of
each such failure and the nature and status thereof, and (D) a statement that
a
registered public accounting firm has issued an attestation report on such
party’s assessment of compliance with the Relevant Servicing Criteria as of and
for such period. Notwithstanding the foregoing, neither Servicer nor any
Servicing Function Participant engaged by a Servicer shall be required to
deliver any assessments until April 15th
in any
given year so long as it has received written confirmation from the Depositor
that a Form 10-K is not required to be filed in respect of the Trust for the
preceding calendar year.
(b) By
March
15 of each year, commencing in March 2007, each Servicer, at its own expense,
shall cause, and each Servicer shall cause any Servicing Function Participant
engaged by it to cause, each at its own expense, a registered public accounting
firm (which may also render other services to such Servicer or such other
Servicing Function Participants, as the case may be) and that is a member of
the
American Institute of Certified Public Accountants to furnish a report to the
Master Servicer, to the effect that (i) it has obtained a representation
regarding certain matters from the management of such party, which includes
an
assertion that such party has complied with the Relevant Servicing Criteria,
and
(ii) on the basis of an examination conducted by such firm in accordance with
standards for attestation engagements issued or adopted by the PCAOB, it is
expressing an opinion as to whether such party’s compliance with the Relevant
Servicing Criteria was fairly stated in all material respects, or it cannot
express an overall opinion regarding such party’s assessment of compliance with
the Relevant Servicing Criteria. In the event that an overall opinion cannot
be
expressed, such registered public accounting firm shall state in such report
why
it was unable to express such an opinion. Such report must be available for
general use and not contain restricted use language. Notwithstanding
the foregoing, neither Servicer nor any Servicing Function Participant engaged
by a Servicer shall be required to deliver or cause the delivery of such reports
until April 15th
in any
given year so long as such Servicer has received written confirmation from
the
Depositor that a Form 10-K is not required to be filed in respect of the Trust
for the preceding fiscal year.
(c) Failure
of a Servicer to comply timely with this Section 3.18 shall be deemed a Servicer
Event of Default as to such Servicer, automatically, without notice and without
any cure period, and the Master Servicer may, in addition to whatever rights
the
Master Servicer may have under this Agreement and at law or in equity or to
damages, including injunctive relief and specific performance, terminate all
the
rights and obligations of such Servicer under this Agreement and in and to
the
Mortgage Loans and the proceeds thereof without compensating such Servicer
for
the same (other than the Servicer’s right to reimbursement of ▇▇▇▇▇▇▇▇▇▇▇▇
▇&▇ Advances and Servicing Advances and accrued and unpaid Servicing Fees in
the manner provided for in this Agreement). This paragraph shall supersede
any
other provision in this Agreement or any other agreement to the
contrary.
SECTION
3.19. Annual
Certification; Additional Information.
(a) Each
Servicer shall and shall cause any Servicing Function Participant engaged by
it
to, provide to the Person who signs the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification (the
“Certifying
Person”),
by
March 15 of each year in which the Trust is subject to the reporting
requirements of the Exchange Act a certification (each, a “Back-Up
Certification”),
in
the form attached hereto as Exhibit
C,
upon
which the Certifying Person, the entity for which the Certifying Person acts
as
an officer, and such entity’s officers, directors and Affiliates (collectively
with the Certifying Person, “Certification
Parties”)
can
reasonably rely. The officer of the Master Servicer in charge of the master
servicing function shall serve as the Certifying Person on behalf of the Trust.
In the event a Servicer or any Servicing Function Participant engaged by it
is
terminated or resigns pursuant to the terms of this Agreement, or any applicable
Sub-Servicing agreement, as the case may be, such party shall provide a Back-Up
Certification to the Certifying Person pursuant to this Section 3.19 with
respect to the period of time it was subject to this Agreement or any applicable
Sub-Servicing Agreement, as the case may be.
(b) Each
Servicer shall indemnify and hold harmless the Master Servicer, the Securities
Administrator, the Trustee, the Depositor and their respective officers,
directors, agents and affiliates from and against any losses, damages,
penalties, fines, forfeitures, reasonable legal fees and related costs,
judgments and other costs and expenses arising out of or based upon a breach
by
such Servicer or any of its officers, directors, agents or affiliates of its
obligations under this Section 3.19 or such Servicer’s negligence, bad faith or
willful misconduct in connection therewith. Such indemnity shall survive the
termination or resignation of the parties hereto or the termination of this
Agreement. If the indemnification provided for herein is unavailable or
insufficient to hold harmless the Master Servicer, the Securities Administrator,
the Trustee and the Depositor, then the related Servicer agrees that it shall
contribute to the amount paid or payable by the Master Servicer, the Securities
Administrator, the Trustee and the Depositor as a result of the losses, claims,
damages or liabilities of the Master Servicer, the Securities Administrator,
the
Trustee and the Depositor in such proportion as is appropriate to reflect the
relative fault of the Master Servicer, the Securities Administrator, the Trustee
and the Depositor on the one hand and the Servicer on the other in connection
with a breach of such Servicer’s obligations under this Section
3.19.
(c) Each
Servicer shall provide to the Master Servicer prompt notice of the occurrence
of
any of the following:
(i) any
Servicer Event of Default under the terms of this Agreement, any merger,
consolidation or sale of substantially all of the assets of such Servicer,
such
Servicer’s engagement of any Sub-Servicer to perform or assist in the
performance of any of such Servicer’s obligations under this Agreement, any
material litigation involving such Servicer that is material to the
Certificateholders, and to the extent disclosure is required under Regulation
AB, any affiliation or other significant relationship between such Servicer
and
the Sponsor, the Depositor, the Master Servicer, the Securities Administrator,
the Issuer, the Trustee, the Custodian, the Swap Provider, Baltimore American
Mortgage Corporation, Pinnacle Financial Corporation, The New York Mortgage
Company, LLC, First Financial Equities, Inc., NC Capital Corporation, Ameriquest
Mortgage Company and Fremont Investment & Loan.
(ii) If
the
Servicer has knowledge of the occurrence of any of the events described in
this
clause (ii), then no later than ten days prior to the deadline for the filing
of
any Distribution Report on Form 10-D in respect of the Trust, such Servicer
shall provide to the Master Servicer notice of the occurrence of any of the
following events along with all information, data, and materials related thereto
as may be required to be included in the related Distribution Report on Form
10-D (as specified in the provisions of Regulation AB referenced below):
(A) any
material modifications, extensions or waivers of pool asset terms, fees,
penalties or payments relating to the Mortgage Loans serviced by the Servicer
during the distribution period or that have cumulatively become material over
time (Item 1121(a)(11) of Regulation AB);
(B) material
breaches of pool asset representations or warranties or servicer transaction
covenants relating to the Mortgage Loans serviced by the Servicer (Item
1121(a)(12) of Regulation AB); and
(C) any
material pool asset changes (such as, additions, substitutions or repurchases)
relating to the Mortgage Loans serviced by the Servicer (Item 1121(a)(14) of
Regulation AB).
(d) Each
Servicer shall provide to the Master Servicer such additional information as
the
Master Servicer may reasonably request, including evidence of the authorization
of the person signing any certification or statement, financial information
and
reports and of the fidelity bond and errors and omissions insurance policy
required to be maintained by such Servicer pursuant to this Agreement, and
such
other information related to such Servicer or its performance
hereunder.
SECTION
3.20. Access
to Certain Documentation.
Each
Servicer shall provide to the Office of Thrift Supervision, the FDIC, and any
other federal or state banking or insurance regulatory authority that may
exercise authority over any Certificate Owner, access to the documentation
regarding the related Mortgage Loans required by applicable laws and
regulations. Such access shall be afforded without charge, but only upon
reasonable and prior written request and during normal business hours at the
offices of the related Servicer designated by it. Nothing in this Section 3.20
shall limit the obligation of the related Servicer to comply with any applicable
law prohibiting disclosure of information regarding the Mortgagors and the
failure of the related Servicer to provide access as provided in this Section
as
a result of such obligation shall not constitute a breach of this Section.
Nothing in this Section 3.20 shall require the related Servicer to collect,
create, collate or otherwise generate any information that it does not generate
in its usual course of business. No Servicer shall be required to make copies
of
or ship documents to any Person unless provisions have been made for the
reimbursement of the costs thereof.
SECTION
3.21. Title,
Management and Disposition of REO Property.
(a) The
deed
or certificate of sale of any REO Property related to a Mortgage Loan shall
be
taken in the name of the Trustee, or its nominee, on behalf of the Trust Fund
and for the benefit of the Certificateholders. The related Servicer, on behalf
of REMIC I, shall either sell any REO Property by the close of the third
calendar year following the calendar year in which REMIC I acquires ownership
of
such REO Property for purposes of Section 860(a)(8) of the Code or request
from
the Internal Revenue Service, no later than sixty (60) days before the day
on
which the three-year grace period would otherwise expire an extension of the
three-year grace period, unless the related Servicer had delivered to the
Trustee an Opinion of Counsel, addressed to the Trustee and the Depositor,
to
the effect that the holding by REMIC I of such REO Property subsequent to three
(3) years after its acquisition will not result in the imposition on any Trust
REMIC created hereunder of taxes on “prohibited transactions” thereof, as
defined in Section 860F of the Code, or cause any Trust REMIC hereunder to
fail
to qualify as a REMIC under Federal law at any time that any Certificates are
outstanding. The related Servicer shall manage, conserve, protect and operate
each REO Property for the Certificateholders solely for the purpose of its
prompt disposition and sale in a manner which does not cause such REO Property
to fail to qualify as “foreclosure property” within the meaning of Section
860G(a)(8) of the Code or result in the receipt by any Trust REMIC created
hereunder of any “income from non-permitted assets” within the meaning of
Section 860F(a)(2)(B) of the Code, or any “net income from foreclosure property”
which is subject to taxation under the REMIC Provisions.
(b) Each
Servicer shall segregate and hold all funds collected and received in connection
with the operation of any REO Property separate and apart from its own funds
and
general assets and shall establish and maintain with respect to REO Properties
an account held in trust for the Trustee, on behalf of the Trust Fund and for
the benefit of the Certificateholders (the “REO Account”), which shall be an
Eligible Account. Each Servicer shall be permitted to allow the related
Collection Account to serve as the REO Account, subject to the maintenance
of
separate ledgers for each REO Property. Each Servicer shall be entitled to
retain or withdraw any interest income paid on funds deposited in the related
REO Account.
(c) Each
Servicer shall have full power and authority, subject only to the specific
requirements and prohibitions of this Agreement, to do any and all things in
connection with any REO Property related to a Mortgage Loan serviced by it
as
are consistent with the manner in which such Servicer manages and operates
similar property owned by it or any of its Affiliates, all on such terms and
for
such period as such Servicer deems to be in the best interests of
Certificateholders. In connection therewith, each Servicer shall deposit, or
cause to be deposited in the clearing account in which it customarily deposits
payments and collections on mortgage loans in connection with its mortgage
loan
servicing activities on a daily basis, and in no event more than one (1)
Business Day after such Servicer’s receipt thereof, and shall thereafter deposit
in the REO Account, (i) with respect to any REO Property serviced by Ocwen,
in
no event more than two (2) Business Days after the deposit of good funds into
the clearing account, (ii) and with respect to any REO Property serviced by
GMAC, in no event later than the close of business on the related Determination
Date, all revenues received by it with respect to an REO Property related to
a
Mortgage Loan serviced by it and shall withdraw therefrom funds necessary for
the proper operation, management and maintenance of such REO Property including,
without limitation:
(i) all
insurance premiums due and payable in respect of such REO Property;
(ii) all
real
estate taxes and assessments in respect of such REO Property that may result
in
the imposition of a lien thereon; and
(iii) all
costs
and expenses necessary to maintain such REO Property.
To
the
extent that amounts on deposit in the REO Account with respect to an REO
Property are insufficient for the purposes set forth in clauses (i) through
(iii) above with respect to such REO Property, the related Servicer shall
advance from its own funds such amount as is necessary for such purposes if,
but
only if, the related Servicer would make such advances if the related Servicer
owned the REO Property and if in the related Servicer’s judgment, the payment of
such amounts will be recoverable from the rental or sale of the REO
Property.
Subject
to compliance with applicable laws and regulations as shall at any time be
in
force, and notwithstanding the foregoing, the related Servicer, on behalf of
the
Trust Fund, shall not:
(iv) enter
into, renew or extend any New Lease with respect to any REO Property, if the
New
Lease by its terms will give rise to any income that does not constitute Rents
from Real Property;
(v) permit
any amount to be received or accrued under any New Lease other than amounts
that
will constitute Rents from Real Property;
(vi) authorize
or permit any construction on any REO Property, other than the completion of
a
building or other improvement thereon, and then only if more than ten percent
of
the construction of such building or other improvement was completed before
default on the related Mortgage Loan became imminent, all within the meaning
of
Section 856(e)(4)(B) of the Code; or
(vii) allow
any
Person to Directly Operate any REO Property on any date more than ninety (90)
days after its date of acquisition by the Trust Fund;
unless,
in any such case, the related Servicer has obtained an Opinion of Counsel,
provided to the related Servicer and the Trustee, to the effect that such action
will not cause such REO Property to fail to qualify as “foreclosure property”
within the meaning of Section 860G(a)(8) of the Code at any time that it is
held
by REMIC I, in which case the related Servicer may take such actions as are
specified in such Opinion of Counsel.
The
related Servicer may contract with any Independent Contractor for the operation
and management of any REO Property, provided that:
(viii) the
terms
and conditions of any such contract shall not be inconsistent
herewith;
(ix) any
such
contract shall require, or shall be administered to require, that the
Independent Contractor pay all costs and expenses incurred in connection with
the operation and management of such REO Property, including those listed above
and remit all related revenues (net of such costs and expenses) to the related
Servicer as soon as practicable, but in no event later than thirty (30) days
following the receipt thereof by such Independent Contractor;
(x) none
of
the provisions of this Section 3.21(c) relating to any such contract or to
actions taken through any such Independent Contractor shall be deemed to relieve
the related Servicer of any of its duties and obligations to the Trustee on
behalf of the Trust Fund and for the benefit of the Certificateholders with
respect to the operation and management of any such REO Property;
and
(xi) the
related Servicer shall be obligated with respect thereto to the same extent
as
if it alone were performing all duties and obligations in connection with the
operation and management of such REO Property.
The
related Servicer shall be entitled to enter into any agreement with any
Independent Contractor performing services for it related to its duties and
obligations hereunder for indemnification of the related Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification. The related Servicer shall be solely liable
for
all fees owed by it to any such Independent Contractor, irrespective of whether
the related Servicer’s compensation pursuant to Section 3.15 is sufficient to
pay such fees. Any such agreement shall include a provision that such agreement
may be immediately terminated by any successor servicer (including the Master
Servicer) without fee, in the event the related shall for any reason, no longer
be the Servicer of the related Mortgage Loans (including termination due to
a
Servicer Event of Default).
(d) In
addition to the withdrawals permitted under Section 3.21(c), the related
Servicer may from time to time make withdrawals from the REO Account for any
REO
Property: (i) to pay itself unpaid Servicing Fees in respect of the related
Mortgage Loan; and (ii) to reimburse itself or any Sub-Servicer for unreimbursed
Servicing Advances and Advances made in respect of such REO Property or the
related Mortgage Loan. On the Servicer Remittance Date, the related Servicer
shall withdraw from each REO Account maintained by it and deposit into the
Distribution Account in accordance with Section 3.08(d)(ii), for distribution
on
the related Distribution Date in accordance with Section 5.01, the income from
the related REO Property received during the prior calendar month, net of any
withdrawals made pursuant to Section 3.21(c) or this Section
3.21(d).
(e) Subject
to the time constraints set forth in Section 3.21(a), each REO Disposition
shall
be carried out by the related Servicer at such price and upon such terms and
conditions as the related Servicer shall deem necessary or advisable, as shall
be normal and usual in accordance with Accepted Servicing
Practices.
(f) The
proceeds from the REO Disposition, net of any amount required by law to be
remitted to the Mortgagor under the related Mortgage Loan and net of any payment
or reimbursement to the related Servicer as provided above, shall be deposited
in the Distribution Account in accordance with Section 3.08(d)(ii) on the
Servicer Remittance Date in the month following the receipt thereof for
distribution on the related Distribution Date in accordance with Section 5.01.
Any REO Disposition shall be for cash only (unless changes in the REMIC
Provisions made subsequent to the Startup Day allow a sale for other
consideration).
(g) The
related Servicer shall file information returns (and shall provide a
certification of a Servicing Officer to the Master Servicer that such filings
have been made) with respect to the receipt of mortgage interest received in
a
trade or business, reports of foreclosures and abandonments of any Mortgaged
Property and cancellation of indebtedness income with respect to any Mortgaged
Property as required by Sections 6050H, 6050J and 6050P of the Code,
respectively. Such reports shall be in form and substance sufficient to meet
the
reporting requirements imposed by such Sections 6050H, 6050J and 6050P of the
Code.
SECTION
3.22. Obligations
of the Servicers in Respect of Prepayment Interest Shortfalls; Relief Act
Interest Shortfalls.
Each
Servicer shall deliver to the Securities Administrator for deposit into the
Distribution Account on or before 12:00 noon New York time on the Servicer
Remittance Date from its own funds an amount equal to the lesser of (i) the
aggregate amount of the Prepayment Interest Shortfalls attributable to
prepayments in full on the related Mortgage Loans for the related Distribution
Date resulting solely from voluntary Principal Prepayments received by the
related Servicer during the portion of the Prepayment Period occurring between
the fifteenth day of the month preceding the month in which the related
Distribution Date occurs and ending on the last day of such month and (ii)
the
aggregate amount of the related Servicing Fees payable to related Servicer
on
such Distribution Date with respect to the related Mortgage Loans. No Servicer
shall have the right to reimbursement for any amounts remitted to the Securities
Administrator in respect of this Section 3.22. No Servicer shall be
obligated to pay the amounts set forth in this Section 3.22 with respect to
shortfalls resulting from the application of the Relief Act.
SECTION
3.23. Reserved.
SECTION
3.24. Reserve
Fund.
(a) No
later
than the Closing Date, the Securities Administrator shall establish and maintain
a separate, segregated trust account entitled, “Reserve Fund, ▇▇▇▇▇ Fargo Bank,
N.A., in trust for the registered holders of ACE Securities Corp. Home Equity
Loan Trust, Series 2006-SL1, Asset Backed Pass-Through Certificates.” On the
Closing Date, the Depositor will deposit, or cause to be deposited, into the
Reserve Fund $1,000.
(b) On
each
Distribution Date, the Securities Administrator shall deposit into the Reserve
Fund the amounts described in Section 5.01(a)(5)(vi), rather than
distributing such amounts to the Class CE-1 Certificateholders. On each such
Distribution Date, the Securities Administrator shall hold all such amounts
for
the benefit of the Holders of the Class A Certificates, the Mezzanine
Certificates and the Class B-1 Certificates and will distribute such amounts
to
the Holders of the Class A Certificates, the Mezzanine Certificates and the
Class B-1 Certificates, in the amounts and priorities set forth in
Section 5.01(a). If no Net WAC Rate Carryover Amounts are payable on a
Distribution Date, the Securities Administrator shall deposit, into the Reserve
Fund on behalf of the Class CE-1 Certificateholders, from amounts otherwise
distributable to the Class CE-1 Certificateholders, an amount such that when
added to other amounts already on deposit in the Reserve Fund, the aggregate
amount on deposit therein is equal to $1,000.
(c) For
federal and state income tax purposes, the Class CE-1 Certificateholders will
be
deemed to be the owners of the Reserve Fund and all amounts deposited into
the
Reserve Fund (other than the initial deposit therein of $1,000) shall be treated
as amounts distributed by REMIC III to the Holders of the Class CE-1
Certificates. Upon the termination of the Trust Fund, or the payment in full
of
the Class A Certificates, the Mezzanine Certificates and the Class B-1
Certificates, all amounts remaining on deposit in the Reserve Fund will be
released by the Trust Fund and distributed to the Class CE-1 Certificateholders
or their designees. The Reserve Fund will be part of the Trust Fund but not
part
of any REMIC and any payments to the Holders of the Class A Certificates, the
Mezzanine Certificates or the Class B-1 Certificates of Net WAC Rate Carryover
Amounts will not be payments with respect to a “regular interest” in a REMIC
within the meaning of Code Section 860(G)(a)(1).
(d) By
accepting a Class CE-1 Certificate, each Class CE-1 Certificateholder hereby
agrees that the Securities Administrator will deposit into the Reserve Fund
the
amounts described above on each Distribution Date rather than distributing
such
amounts to the Class CE-1 Certificateholders. By accepting a Class CE-1
Certificate, each Class CE-1 Certificateholder further agrees that its agreement
to such action by the Securities Administrator is given for good and valuable
consideration, the receipt and sufficiency of which is acknowledged by such
acceptance.
(e) At
the
direction of the Holders of a majority in Percentage Interest in the Class
CE-1
Certificates, the Securities Administrator shall direct any depository
institution maintaining the Reserve Fund to invest the funds in such account
in
one or more Permitted Investments bearing interest or sold at a discount, and
maturing, unless payable on demand, (i) no later than the Business Day
immediately preceding the date on which such funds are required to be withdrawn
from such account pursuant to this Agreement, if a Person other than the
Securities Administrator or an Affiliate manages or advises such investment,
and
(ii) no later than the date on which such funds are required to be withdrawn
from such account pursuant to this Agreement, if the Securities Administrator
or
an Affiliate manages or advises such investment. All income and gain earned
upon
such investment shall be deposited into the Reserve Fund. In no event shall
the
Securities Administrator be liable for any investments made pursuant to this
clause (e). If the Holders of a majority in Percentage Interest in the Class
CE-1 Certificates fail to provide investment instructions, funds on deposit
in
the Reserve Fund shall be held uninvested by the Securities Administrator
without liability for interest or compensation.
(f) For
federal tax return and information reporting, the right of the Class A
Certificateholders, the Mezzanine Certificateholders and Class B-1
Certificateholders to receive payments from the Reserve Fund in respect of
any
Net WAC Rate Carryover Amount shall be assigned a value of $10,000 with respect
to the Certificates covered by the Swap Agreement.
SECTION
3.25. Advance
Facility.
(a) Notwithstanding
anything to the contrary contained herein, (i) each Servicer is hereby
authorized to enter into an advance facility (“Advance Facility”) but no more
than two Advance Facilities with respect to Ocwen, and no more than one Advance
Facility, with respect to GMAC, without the prior written consent of the
Trustee, which consent shall not be unreasonably withheld, under which (A)
the
related Servicer sells, assigns or pledges to an advancing person (an “Advance
Financing Person”) its rights under this Agreement to be reimbursed for any
P&I Advances or Servicing Advances and/or (B) an Advance Financing Person
agrees to finance some or all P&I Advances or Servicing Advances required to
be made by the related Servicer pursuant to this Agreement and (ii) Ocwen is
hereby authorized to assign its rights to the Servicing Fee (which rights shall
terminate upon the resignation, termination or removal of Ocwen pursuant to
the
terms of this Agreement); it being understood that neither the Trust Fund nor
any party hereto shall have a right or claim (including without limitation
any
right of offset) to any amounts for reimbursement of P&I Advances or
Servicing Advances so assigned or to the portion of the Servicing Fee so
assigned. Subject to the provisions of the first sentence of this Section
3.25(a), no consent of the Depositor, Trustee, Master Servicer,
Certificateholders or any other party is required before a Servicer may enter
into an Advance Facility, but such Servicer shall provide notice to the
Depositor, Master Servicer and the Trustee of the existence of any such Advance
Facility promptly upon the consummation thereof stating (a) the identity of
the
Advance Financing Person and (b) the identity of any Person (“Servicer’s
Assignee”) who has the right to receive amounts in reimbursement of previously
▇▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advances or Servicing Advances. Notwithstanding the
existence of any Advance Facility under which an advancing person agrees to
finance P&I Advances and/or Servicing Advances on such Servicer’s behalf,
such Servicer shall remain obligated pursuant to this Agreement to make P&I
Advances and Servicing Advances pursuant to and as required by this Agreement,
and shall not be relieved of such obligations by virtue of such Advance
Facility.
(b) Reimbursement
amounts (“Advance Reimbursement Amounts”) shall consist solely of amounts in
respect of P&I Advances and/or Servicing Advances made with respect to the
related Mortgage Loans for which the related Servicer would be permitted to
reimburse itself in accordance with this Agreement, assuming the related
Servicer had made the related P&I Advance(s) and/or Servicing
Advance(s).
(c) The
related Servicer shall maintain and provide to any successor Servicer (with,
upon request, a copy to 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 person. The successor Servicer shall be entitled to rely on any such
information provided by the predecessor Servicer, and the successor Servicer
shall not be liable for any errors in such information.
(d) Reimbursement
amounts distributed with respect to each Mortgage Loan shall be allocated to
outstanding ▇▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advances or Servicing Advances (as the case may
be) made with respect to that Mortgage Loan on a “first-in, first out” (FIFO)
basis. The documentation establishing any Advance Facility shall require the
related Servicer to provide to the related advancing person or its designee
loan-by-loan information with respect to each such reimbursement amount
distributed to such advancing person or Advance Facility trustee on each
Distribution Date, to enable the advancing person or Advance Facility trustee
to
make the FIFO allocation of each such reimbursement amount with respect to
each
Mortgage Loan. The related Servicer shall remain entitled to be reimbursed
by
the advancing person or Advance Facility trustee for all P&I Advances and
Servicing Advances funded by the related Servicer to the extent the related
rights to be reimbursed therefor have not been sold, assigned or pledged to
an
advancing person.
(e) Any
amendment to this Section 3.25 or to any other provision of this Agreement
that
may be necessary or appropriate to effect the terms of an Advance Facility
as
described generally in this Section 3.25, 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, notwithstanding anything to the contrary in this Agreement,
provided, that the Trustee has been provided an Opinion of Counsel that such
amendment is authorized hereunder and has no material adverse effect on the
Certificateholders, 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; provided, further, that the amendment shall not be deemed to adversely
affect in any material respect the interests of the Certificateholders if the
Person requesting the amendment obtains a letter from each Rating Agency
(instead of obtaining an Opinion of Counsel to such effect) stating that the
amendment would not result in the downgrading or withdrawal of the respective
ratings then assigned to the Certificates; it being understood and agreed that
any such rating letter in and of itself will not represent a determination
as to
the materiality of any such amendment and will represent a determination only
as
to the credit issues affecting any such rating. Prior to entering into an
Advance Facility, the related Servicer shall notify the lender under such
facility in writing that: (a) the P&I Advances and/or Servicing Advances
financed by and/or pledged to the lender are obligations owed to the related
Servicer on a non-recourse basis payable only from the cash flows and proceeds
received under this Agreement for reimbursement of P&I Advances and/or
Servicing Advances only to the extent provided herein, and neither the Master
Servicer, the Securities Administrator, the Trustee nor the Trust are otherwise
obligated or liable to repay any P&I Advances and/or Servicing Advances
financed by the lender; (b) the related Servicer will be responsible for
remitting to the lender the applicable amounts collected by it as Servicing
Fees
and as reimbursement for P&I Advances and/or Servicing Advances funded by
the lender, as applicable, subject to the restrictions and priorities created
in
this Agreement; and (c) neither the Master Servicer, the Securities
Administrator nor the Trustee shall have any responsibility to calculate any
amount payable under an Advance Facility or to track or monitor the
administration of the financing arrangement between the related Servicer and
the
lender or the payment of any amount under an Advance Facility.
(f) The
related Servicer shall indemnify the Master Servicer, the Securities
Administrator, the Trustee and the Trust Fund for any cost, liability or expense
relating to the Advance Facility including, without limitation, a claim, pending
or threatened, by an Advance Financing Person.
SECTION
3.26. Indemnification.
Each
Servicer agrees to indemnify the Trustee, Master Servicer and the Securities
Administrator, from, and hold the Trustee, Master Servicer and the Securities
Administrator harmless against, any loss, liability or expense (including
reasonable attorney’s fees and expenses) incurred by any such Person by reason
of such Servicer’s willful misfeasance, bad faith or gross negligence in the
performance of its duties under this Agreement or by reason of such Servicer’s
reckless disregard of its obligations and duties under this Agreement. Such
indemnity shall survive the termination or discharge of this Agreement and
the
resignation or removal of related Servicer, the Trustee, the Master Servicer
and
the Securities Administrator. Any payment hereunder made by the related Servicer
to any such Person shall be from the related Servicer’s own funds, without
reimbursement from REMIC I therefor.
ARTICLE
IV
ADMINISTRATION
AND MASTER SERVICING
OF
THE
MORTGAGE LOANS BY THE MASTER SERVICER
SECTION
4.01. Master
Servicer.
The
Master Servicer shall, from and after the Closing Date supervise, monitor and
oversee the obligations of the Servicers under this Agreement to service and
administer the related Mortgage Loans in accordance with the terms of this
Agreement and shall have full power and authority to do any and all things
which
it may deem necessary or desirable in connection with such master servicing
and
administration. In performing its obligations hereunder, the Master Servicer
shall act in a manner consistent with Accepted Master Servicing Practices.
Furthermore, the Master Servicer shall oversee and consult with the Servicers
as
necessary from time-to-time to carry out the Master Servicer’s obligations
hereunder, shall receive, review and evaluate all reports, information and
other
data provided to the Master Servicer by the Servicers and shall cause the
Servicers to perform and observe the covenants, obligations and conditions
to be
performed or observed by the Servicers under this Agreement. The Master Servicer
shall independently and separately monitor the Servicers’ servicing activities
with respect to each related Mortgage Loan, reconcile the results of such
monitoring with such information provided in the previous sentence on a monthly
basis and coordinate corrective adjustments to the Servicers’ and Master
Servicer’s records, and based on such reconciled and corrected information,
prepare the statements specified in Section 5.03 and any other information
and
statements required to be provided by the Master Servicer hereunder. The Master
Servicer shall reconcile the results of its Mortgage Loan monitoring with the
actual remittances of the Servicers to the Distribution Account pursuant to
the
terms hereof based on information provided to the Master Servicer by the
Servicers.
The
Trustee shall furnish the related Servicer and the Master Servicer with any
limited powers of attorney and other documents in form acceptable to it
necessary or appropriate to enable the related Servicer and the Master Servicer
to service and administer the related Mortgage Loans and REO Property. The
Trustee shall have no responsibility for any action of the Master Servicer,
the
related Servicer pursuant to any such limited power of attorney and shall be
indemnified by the Master Servicer or the related Servicer, as applicable,
for
any cost, liability or expense incurred by the Trustee in connection with such
Person’s misuse of any such power of attorney.
The
Trustee, the Custodians and the Securities Administrator shall provide access
to
the records and documentation in possession of the Trustee, the Custodians
or
the Securities Administrator 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, the Custodians or the Securities Administrator; provided,
however, that, unless otherwise required by law, none of the Trustee, the
Custodians or the Securities Administrator shall be required to provide access
to such records and documentation if the provision thereof would violate the
legal right to privacy of any Mortgagor. The Trustee, the Custodians and the
Securities Administrator shall allow representatives of the above entities
to
photocopy any of the records and documentation and shall provide equipment
for
that purpose at a charge that covers the Trustee’s, the Custodians’ or the
Securities Administrator’s actual costs.
The
Trustee shall execute and deliver to the related Servicer or the Master Servicer
upon request any court pleadings, requests for trustee’s sale or other documents
necessary or desirable to (i) the foreclosure or trustee’s sale with respect to
a Mortgaged Property; (ii) any legal action brought to obtain judgment against
any Mortgagor on the Mortgage Note or any other Mortgage Loan Document; (iii)
obtain a deficiency judgment against the Mortgagor; or (iv) enforce any other
rights or remedies provided by the Mortgage Note or any other Mortgage Loan
Document or otherwise available at law or equity.
SECTION
4.02. REMIC-Related
Covenants.
For
as
long as each REMIC shall exist, the Trustee and the Securities Administrator
shall act in accordance herewith to treat such REMIC as a REMIC, and the Trustee
and the Securities Administrator shall comply with any directions of the
Sponsor, the related Servicer or the Master Servicer to assure such continuing
treatment. In particular, the Trustee shall not (a) sell or permit the sale
of
all or any portion of the Mortgage Loans or of any investment of deposits in
an
Account unless such sale is as a result of a repurchase of the Mortgage Loans
pursuant to this Agreement or the Trustee has received a REMIC Opinion prepared
at the expense of the Trust Fund; and (b) other than with respect to a
substitution pursuant to the Mortgage Loan Purchase Agreement or
Section 2.03 of this Agreement, as applicable, accept any contribution to
any REMIC after the Startup Day without receipt of an Opinion of Counsel stating
that such contribution will not result in an Adverse REMIC Event as defined
in
Section 11.01(f).
SECTION
4.03. Monitoring
of Servicers.
(a) The
Master Servicer shall be responsible for monitoring the compliance by the
Servicers with their respective duties under this Agreement. In the review
of
the related Servicer’s activities, the Master Servicer may rely upon an
officer’s certificate of the related Servicer with regard to such Servicer’s
compliance with the terms of this Agreement. In the event that the Master
Servicer, in its judgment, determines that the related Servicer should be
terminated in accordance with the terms hereof or that a notice should be sent
pursuant to the terms hereof with respect to the occurrence of an event that,
unless cured, would constitute a Servicer Event of Default, or an event of
default, the Master Servicer shall notify the related Servicer, the Sponsor
and
the Trustee thereof and the Master Servicer shall issue such notice or take
such
other action as it deems appropriate.
(b) The
Master Servicer, for the benefit of the Trustee and the Certificateholders,
shall enforce the obligations of the Servicers under this Agreement and shall,
in the event that a Servicer fails to perform its obligations in accordance
with
this Agreement, subject to this Section and Article VIII, the Trustee shall
terminate the rights and obligations of such Servicer hereunder in accordance
with the provisions of Article VIII. Such enforcement, including, without
limitation, the legal prosecution of claims and the pursuit of other appropriate
remedies, shall be in such form and carried out to such an extent and at such
time as the Master Servicer, in its good faith business judgment, would require
were it the owner of the related Mortgage Loans. The Master Servicer shall
pay
the costs of such enforcement at its own expense, provided that the Master
Servicer shall not be required to prosecute or defend any legal action except
to
the extent that the Master Servicer shall have received reasonable indemnity
for
its costs and expenses in pursuing such action.
(c) The
Master Servicer shall be entitled to be reimbursed by the related Servicer
(or
from amounts on deposit in the Distribution Account if the related Servicer
is
unable to fulfill its obligations hereunder) for all reasonable out-of-pocket
or
third party costs associated with the transfer of servicing from the predecessor
Servicer (or if the predecessor Servicer is the Master Servicer, from the
Servicer immediately preceding the Master Servicer), including without
limitation, any reasonable out-of-pocket or third party costs or expenses
associated with the complete transfer of all servicing data and the completion,
correction or manipulation of such servicing data as may be required by the
Master Servicer to correct any errors or insufficiencies in the servicing data
or otherwise to enable the Master Servicer to service the related Mortgage
Loans
properly and effectively, upon presentation of reasonable documentation of
such
costs and expenses.
(d) The
Master Servicer shall require the Servicers to comply with the remittance
requirements and other obligations set forth in this Agreement.
(e) If
the
Master Servicer acts as successor to a Servicer, it will not assume liability
for the representations and warranties of the terminated Servicer.
SECTION
4.04. Fidelity
Bond.
The
Master Servicer, at its expense, shall maintain in effect a blanket fidelity
bond and an errors and omissions insurance policy, affording coverage with
respect to all directors, officers, employees and other Persons acting on such
Master Servicer’s behalf, and covering errors and omissions in the performance
of the Master Servicer’s obligations hereunder. The errors and omissions
insurance policy and the fidelity bond shall be in such form and amount
generally acceptable for entities serving as master servicers or
trustees.
SECTION
4.05. Power
to Act; Procedures.
The
Master Servicer shall master service the Mortgage Loans and shall have full
power and authority, subject to the REMIC Provisions and the provisions of
Article XI, to do any and all things that it may deem necessary or desirable
in
connection with the master servicing and administration of the Mortgage Loans,
including but not limited to the power and authority (i) to execute and deliver,
on behalf of the Certificateholders and the Trustee, customary consents or
waivers and other instruments and documents, (ii) to consent to transfers of
any
Mortgaged Property and assumptions of the Mortgage Notes and related Mortgages,
(iii) to collect any Insurance Proceeds and Liquidation Proceeds, and (iv)
to
effectuate foreclosure or other conversion of the ownership of the Mortgaged
Property securing any Mortgage Loan, in each case, in accordance with the
provisions of this Agreement; provided, however, that the Master Servicer shall
not (and, consistent with its responsibilities under Section 4.03, shall not
permit the related Servicer to) knowingly or intentionally take any action,
or
fail to take (or fail to cause to be taken) any action reasonably within its
control and the scope of duties more specifically set forth herein, that, under
the REMIC Provisions, if taken or not taken, as the case may be, would cause
REMIC I, REMIC II or REMIC III to fail to qualify as a REMIC or result in the
imposition of a tax upon the Trust Fund (including but not limited to the tax
on
prohibited transactions as defined in Section 860F(a)(2) of the Code and the
tax
on contributions to a REMIC set forth in Section 860G(d) of the Code) unless
the
Master Servicer has received an Opinion of Counsel (but not at the expense
of
the Master Servicer) to the effect that the contemplated action will not cause
REMIC I, REMIC II or REMIC III to fail to qualify as a REMIC or result in the
imposition of a tax upon REMIC I, REMIC II or REMIC III, as the case may be.
The
Trustee shall furnish the Master Servicer, upon written request from a Servicing
Officer, with any powers of attorney prepared and delivered to it and reasonably
acceptable to it by empowering the Master Servicer or the related Servicer
to
execute and deliver instruments of satisfaction or cancellation, or of partial
or full release or discharge, and to foreclose upon or otherwise liquidate
Mortgaged Property, and to appeal, prosecute or defend in any court action
relating to the Mortgage Loans or the Mortgaged Property, in accordance with
this Agreement, and the Trustee shall execute and deliver such other documents
prepared and delivered to it and reasonably acceptable to it, as the Master
Servicer or the related Servicer may request, to enable the Master Servicer
to
master service and administer the related Mortgage Loans and carry out its
duties hereunder, in each case in accordance with Accepted Master Servicing
Practices (and the Trustee shall have no liability for misuse of any such powers
of attorney by the Master Servicer or the related Servicer and shall be
indemnified by the Master Servicer or the related Servicer, as applicable,
for
any cost, liability or expense incurred by the Trustee in connection with such
Person’s use or misuse of any such power of attorney). If the Master Servicer or
the Trustee has been advised that it is likely that the laws of the state in
which action is to be taken prohibit such action if taken in the name of the
Trustee or that the Trustee would be adversely affected under the “doing
business” or tax laws of such state if such action is taken in its name, the
Master Servicer shall join with the Trustee in the appointment of a co-trustee
pursuant to Section 9.10. In the performance of its duties hereunder, the Master
Servicer shall be an independent contractor and shall not, except in those
instances where it is taking action in the name of the Trustee, be deemed to
be
the agent of the Trustee.
SECTION
4.06. Due-on-Sale
Clauses; Assumption Agreements.
To
the
extent Mortgage Loans contain enforceable due-on-sale clauses, the Master
Servicer shall cause the related Servicer to enforce such clauses in accordance
with this Agreement. If applicable law prohibits the enforcement of a
due-on-sale clause or such clause is otherwise not enforced in accordance with
this Agreement and, as a consequence, a Mortgage Loan is assumed, the original
Mortgagor may be released from liability in accordance with this
Agreement.
SECTION
4.07. Documents,
Records and Funds in Possession of Master Servicer To Be Held for
Trustee.
(a) The
Master Servicer shall transmit to the Trustee or the Custodian such documents
and instruments coming into the possession of the Master Servicer from time
to
time as are required by the terms hereof to be delivered to the Trustee or
the
Custodian. Any funds received by the Master Servicer in respect of any Mortgage
Loan or which otherwise are collected by the Master Servicer as Liquidation
Proceeds or Insurance Proceeds in respect of any Mortgage Loan shall be remitted
to the Securities Administrator for deposit in the Distribution Account. The
Master Servicer shall, and, subject to Section 3.20 of this Agreement shall
cause the related Servicer to provide access to information and documentation
regarding the Mortgage Loans to the Trustee, its agents and accountants at
any
time upon reasonable request and during normal business hours, and to
Certificateholders that are savings and loan associations, banks or insurance
companies, the Office of Thrift Supervision, the FDIC and the supervisory agents
and examiners of such Office and Corporation or examiners of any other federal
or state banking or insurance regulatory authority if so required by applicable
regulations of the Office of Thrift Supervision or other regulatory authority,
such access to be afforded without charge but only upon reasonable request
in
writing and during normal business hours at the offices of the Master Servicer
designated by it. In fulfilling such a request the Master Servicer shall not
be
responsible for determining the sufficiency of such information.
(b) All
Mortgage Files and funds collected or held by, or under the control of, the
Master Servicer, in respect of any Mortgage Loans, whether from the collection
of principal and interest payments or from Liquidation Proceeds or Insurance
Proceeds, shall be remitted to the Securities Administrator for deposit in
the
Distribution Account.
SECTION
4.08. Standard
Hazard Insurance and Flood Insurance Policies.
For
each
Mortgage Loan, the Master Servicer shall enforce the obligation of each Servicer
under this Agreement to maintain or cause to be maintained standard fire and
casualty insurance and, where applicable, flood insurance, all in accordance
with the provisions of this Agreement. It is understood and agreed that such
insurance shall be with insurers meeting the eligibility requirements set forth
in Section 3.11 of the Agreement and that no earthquake or other additional
insurance is to be required of any Mortgagor or to be maintained on property
acquired in respect of a defaulted loan, other than pursuant to such applicable
laws and regulations as shall at any time be in force and as shall require
such
additional insurance.
SECTION
4.09. Presentment
of Claims and Collection of Proceeds.
The
Master Servicer shall enforce each Servicer’s obligations under this Agreement
to prepare and present on behalf of the Trustee and the Certificateholders
all
claims under any insurance policies and take such actions (including the
negotiation, settlement, compromise or enforcement of the insured’s claim) as
shall be necessary to realize recovery under such policies. Any proceeds
disbursed to the Master Servicer in respect of such policies, bonds or contracts
shall be promptly remitted to the Trustee for deposit in the Distribution
Account upon receipt, except that any amounts realized that are to be applied
to
the repair or restoration of the 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 or remitted.
SECTION
4.10. Reserved.
SECTION
4.11. Trustee
to Retain Possession of Certain Insurance Policies and
Documents.
The
Trustee or the applicable Custodian, shall retain possession and custody of
the
originals (to the extent available) of any primary mortgage insurance policies,
or certificate of insurance if applicable, and any certificates of renewal
as to
the foregoing as may be issued from time to time as contemplated by this
Agreement. Until all amounts distributable in respect of the Certificates have
been distributed in full and the Master Servicer and the related Servicer have
otherwise fulfilled their respective obligations under this Agreement, the
Trustee or the applicable Custodian shall also retain possession and custody
of
each Mortgage File in accordance with and subject to the terms and conditions
of
this Agreement and the Custodial Agreement. The Master Servicer shall promptly
deliver or cause to be delivered to the Trustee or the applicable Custodian,
upon the execution or receipt thereof the originals of any primary mortgage
insurance policies, any certificates of renewal, and such other documents or
instruments that constitute Mortgage Loan Documents that come into the
possession of the Master Servicer from time to time.
SECTION
4.12. Realization
Upon Defaulted Mortgage Loans.
The
Master Servicer shall cause the related Servicer to foreclose upon, repossess
or
otherwise comparably convert the ownership of Mortgaged Properties securing
such
of the Mortgage Loans as come into and continue in default and as to which
no
satisfactory arrangements can be made for collection of delinquent payments,
all
in accordance with this Agreement.
SECTION
4.13. Compensation
for the Master Servicer.
As
compensation for the activities of the Master Servicer hereunder, the Master
Servicer shall be entitled to the Master Servicing Fee and the income from
investment of or earnings on the funds from time to time in the Distribution
Account, as provided in Section 3.10. The compensation payable to the
Master Servicer in respect of any Distribution Date shall be reduced in
accordance with Section 4.18. The Master Servicer shall be required to pay
all expenses incurred by it in connection with its activities hereunder and
shall not be entitled to reimbursement therefor except as provided in this
Agreement.
SECTION
4.14. REO
Property.
(a) In
the
event the Trust Fund acquires ownership of any REO Property in respect of any
related Mortgage Loan, the deed or certificate of sale shall be issued to the
Trustee, or to its nominee, on behalf of the related Certificateholders. The
Master Servicer shall cause the related Servicer to sell, any REO Property
as
expeditiously as possible and in accordance with the provisions of this
Agreement. Further, the Master Servicer shall cause the related Servicer to
sell
any REO Property prior to three years after the end of the calendar year of
its
acquisition by REMIC I unless (i) the Trustee shall have been supplied by the
related Servicer with an Opinion of Counsel to the effect that the holding
by
the Trust Fund of such REO Property subsequent to such three-year period will
not result in the imposition of taxes on “prohibited transactions” of any REMIC
hereunder as defined in section 860F of the Code or cause any REMIC hereunder
to
fail to qualify as a REMIC at any time that any Certificates are outstanding,
in
which case the Trust Fund may continue to hold such Mortgaged Property (subject
to any conditions contained in such Opinion of Counsel) or (ii) the related
Servicer shall have applied for, prior to the expiration of such three-year
period, an extension of such three-year period in the manner contemplated by
Section 856(e)(3) of the Code, in which case the three-year period shall be
extended by the applicable extension period. The Master Servicer shall cause
the
related Servicer to protect and conserve, such REO Property in the manner and
to
the extent required by this Agreement in accordance with the REMIC Provisions
and in a manner that does not result in a tax on “net income from foreclosure
property” or cause such REO Property to fail to qualify as “foreclosure
property” within the meaning of Section 860G(a)(8) of the Code.
(b) The
Master Servicer shall cause the related Servicer to deposit all funds collected
and received in connection with the operation of any REO Property in the REO
Account.
SECTION
4.15. Master
Servicer Annual Statement of Compliance.
(a) The
Master Servicer and the Securities Administrator shall deliver (and the Master
Servicer and Securities Administrator shall cause any Additional Servicer or
Servicing Function Participant (other than any Subcontractors) engaged by it
to
deliver) to the Depositor and the Securities Administrator, and in the case
of
the Master Servicer, to the Trustee, on or before March 15 of each year,
commencing in March 2007, an Officer’s Certificate stating, as to the signer
thereof, that (A) a review of such party’s activities during the preceding
calendar year or portion thereof and of such party’s performance under this
Agreement, or such other applicable agreement in the case of an Additional
Servicer, has been made under such officer’s supervision and (B) to the best of
such officer’s knowledge, based on such review, such party has fulfilled all its
obligations under this Agreement, or such other applicable agreement in the
case
of an Additional Servicer, in all material respects throughout such year or
portion thereof, or, if there has been a failure to fulfill any such obligation
in any material respect, specifying each such failure known to such officer
and
the nature and status thereof. Promptly after receipt of each such Officer’s
Certificate, the Depositor shall review such Officer’s Certificate and, if
applicable, consult with each such party, as applicable, as to the nature of
any
failures by such party, in the fulfillment of any of such party’s obligations
hereunder or, in the case of an Additional Servicer, under such other applicable
agreement.
(b) Failure
of the Master Servicer to comply timely with this Section 4.15 shall be deemed
a
Master Servicer Event of Default, automatically, without notice and without
any
cure period, and the Trustee may, in addition to whatever rights the Trustee
may
have under this Agreement and at law or in equity or to damages, including
injunctive relief and specific performance, terminate all the rights and
obligations of the Master Servicer under this Agreement and in and to the
Mortgage Loans and the proceeds thereof without compensating the Master Servicer
for the same. This paragraph shall supersede any other provision in this
Agreement or any other agreement to the contrary.
(c) Copies
of
such Master Servicer annual statements of compliance shall be provided to any
Certificateholder upon request, by the Master Servicer or by the Trustee at
the
Master Servicer’s expense if the Master Servicer failed to provide such copies
(unless (i) the Master Servicer shall have failed to provide the Trustee with
such statement or (ii) the Trustee shall be unaware of the Master Servicer’s
failure to provide such statement).
SECTION
4.16. Master
Servicer Assessments of Compliance and Attestation Reports.
(a) By
March
15 of each year, commencing in March 2007, the Master Servicer and the
Securities Administrator, each at its own expense, shall furnish, and each
such
party shall cause any Servicing Function Participant engaged by it to furnish,
each at its own expense, to the Securities Administrator and the Depositor,
a
report on an assessment of compliance with the Relevant Servicing Criteria
that
contains (A) a statement by such party of its responsibility for assessing
compliance with the Relevant Servicing Criteria, (B) a statement that such
party
used the Relevant Servicing Criteria to assess compliance with the Relevant
Servicing Criteria, (C) such party’s assessment of compliance with the Relevant
Servicing Criteria as of and for the fiscal year covered by the Form 10-K
required to be filed pursuant to Section 5.06(d), including, if there has been
any material instance of noncompliance with the Relevant Servicing Criteria,
a
discussion of each such failure and the nature and status thereof, and (D)
a
statement that a registered public accounting firm has issued an attestation
report on such party’s assessment of compliance with the Relevant Servicing
Criteria as of and for such period.
(b) No
later
than the end of each fiscal year for the Trust for which a 10-K is required
to
be filed, the Master Servicer shall forward to the Securities Administrator
the
name of each Servicing Function Participant engaged by it and what Relevant
Servicing Criteria will be addressed in the report on assessment of compliance
prepared by such Servicing Function Participant. When the Master Servicer and
the Securities Administrator (or any Servicing Function Participant engaged
by
them) submit their assessments to the Securities Administrator, such parties
will also at such time include the assessment (and attestation pursuant to
Section 4.17) of each Servicing Function Participant engaged by it.
(c) Promptly
after receipt of each such report on assessment of compliance, (i) the Depositor
shall review each such report and, if applicable, consult with the Master
Servicer, the Securities Administrator and any Servicing Function Participant
engaged by such parties as to the nature of any material instance of
noncompliance with the Relevant Servicing Criteria by each such party, and
(ii)
the Securities Administrator shall confirm that the assessments, taken as a
whole, address all of the Servicing Criteria and taken individually address
the
Relevant Servicing Criteria for each party as set forth on Exhibit
E
and
notify the Depositor of any exceptions. None of such parties shall be required
to deliver any such assessments until April 15 in any given year so long as
it
has received written confirmation from the Depositor that a Form 10-K is not
required to be filed in respect of the Trust for the preceding calendar
year.
(d) Failure
of the Master Servicer to comply timely with this Section 4.16 shall be deemed
a
Master Servicer Event of Default, automatically, without notice and without
any
cure period, and the Trustee may, in addition to whatever rights the Trustee
may
have under this Agreement and at law or in equity or to damages, including
injunctive relief and specific performance, terminate all the rights and
obligations of the Master Servicer under this Agreement and in and to the
Mortgage Loans and the proceeds thereof without compensating the Master Servicer
for the same. This paragraph shall supersede any other provision in this
Agreement or any other agreement to the contrary.
(e) Delivery
under this Section 4.16 of such reports, information and documents to the
Trustee is for informational purposes only, and the Trustee’s receipt of such
shall not constitute constructive notice of any information contained therein
or
determinable from information contained therein, including the Master Servicer’s
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to conclusively rely exclusively on an Officer’s
Certificate).
SECTION
4.17. Master
Servicer Attestation Reports.
(a) By
March
15 of each year, commencing in March 2007, the Master Servicer and the
Securities Administrator, each at its own expense, shall cause, and each such
party shall cause any Servicing Function Participant engaged by it to cause,
each at its own expense, a registered public accounting firm (which may also
render other services to the Master Servicer, the Securities Administrator,
or
such other Servicing Function Participants, as the case may be) and that is
a
member of the American Institute of Certified Public Accountants to furnish
a
report to the Securities Administrator and the Depositor, to the effect that
(i)
it has obtained a representation regarding certain matters from the management
of such party, which includes an assertion that such party has complied with
the
Relevant Servicing Criteria, and (ii) on the basis of an examination conducted
by such firm in accordance with standards for attestation engagements issued
or
adopted by the PCAOB, it is expressing an opinion as to whether such party’s
compliance with the Relevant Servicing Criteria was fairly stated in all
material respects, or it cannot express an overall opinion regarding such
party’s assessment of compliance with the Relevant Servicing Criteria. In the
event that an overall opinion cannot be expressed, such registered public
accounting firm shall state in such report why it was unable to express such
an
opinion. Such report must be available for general use and not contain
restricted use language.
(b) Promptly
after receipt of such report from the Master Servicer, the Securities
Administrator or any Servicing Function Participant engaged by such parties,
(i)
the Depositor shall review the report and, if applicable, consult with such
parties as to the nature of any defaults by such parties, in the fulfillment
of
any of each such party’s obligations hereunder or under any other applicable
agreement, and (ii) the Securities Administrator shall confirm that each
assessment submitted pursuant to Section 4.16 is coupled with an attestation
meeting the requirements of this Section and notify the Depositor of any
exceptions. None of the Master Servicer, the Securities Administrator or any
Servicing Function Participant engaged by such parties shall be required to
deliver or cause the delivery of such reports until April 15 in any given year
so long as it has received written confirmation from the Depositor that a 10-K
is not required to be filed in respect of the Trust for the preceding fiscal
year.
(c) Failure
of the Master Servicer to comply timely with this Section 4.17 shall be deemed
a
Master Servicer Event of Default, automatically, without notice and without
any
cure period, and the Trustee may, in addition to whatever rights the Trustee
may
have under this Agreement and at law or in equity or to damages, including
injunctive relief and specific performance, terminate all the rights and
obligations of the Master Servicer under this Agreement and in and to the
Mortgage Loans and the proceeds thereof without compensating the Master Servicer
for the same. This paragraph shall supersede any other provision in this
Agreement or any other agreement to the contrary.
SECTION
4.18. Annual
Certification.
Each
Form
10-K required to be filed for the Trust pursuant to Section 5.06 shall include
a
certification (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇
Certification”)
required to be included therewith pursuant to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. Each
of
the Master Servicer and the Securities Administrator shall provide, and shall
cause any Servicing Function Participant engaged by it to, provide to the Person
who signs the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification (the “Certifying
Person”),
by
March 15 of each year in which the Trust is subject to the reporting
requirements of the Exchange Act and otherwise within a reasonable period of
time upon request, a certification (each, a “Back-Up
Certification”),
in
the form attached hereto as Exhibit
C,
upon
which the Certifying Person, the entity for which the Certifying Person acts
as
an officer, and such entity’s officers, directors and Affiliates (collectively
with the Certifying Person, “Certification
Parties”)
can
reasonably rely. The officer of the Master Servicer in charge of the master
servicing function shall serve as the Certifying Person on behalf of the Trust.
In the event the Master Servicer, the Securities Administrator or any Servicing
Function Participant engaged by parties is terminated or resigns pursuant to
the
terms of this Agreement, or any applicable Sub-Servicing Agreement, as the
case
may be, such party shall provide a Back-Up Certification to the Certifying
Person pursuant to this Section 4.18 with respect to the period of time it
was
subject to this Agreement or any applicable Sub-Servicing Agreement, as the
case
may be.
SECTION
4.19. Obligation
of the Master Servicer in Respect of Prepayment Interest
Shortfalls.
In
the
event of any Prepayment Interest Shortfalls, the Master Servicer shall deposit
into the Distribution Account not later than the related Distribution Date
an
amount equal to the lesser of (i) the aggregate amounts required to be paid
by
the related Servicer with respect to Prepayment Interest Shortfalls attributable
to Principal Prepayments in full on the Mortgage Loans for the related
Distribution Date, and not so paid by the related Servicer and (ii) the
aggregate amount of the compensation payable to the Master Servicer for such
Distribution Date in accordance with Section 4.13, without reimbursement
therefor.
SECTION
4.20. Prepayment
Penalty Verification.
On
or
prior to each Servicer Remittance Date, each Servicer shall provide in an
electronic format acceptable to the Master Servicer the data necessary for
the
Master Servicer to perform its verification duties set forth in this Section
4.19. The Master Servicer or a third party reasonably acceptable to the Master
Servicer and the Depositor (the “Verification Agent”) will perform such
verification duties and will use its best efforts to issue its findings in
a
report (the “Verification Report”) delivered to the Master Servicer and the
Depositor within ten (10) Business Days following the related Distribution
Date;
provided, however, that if the Verification Agent is unable to issue the
Verification Report within ten (10) Business Days following the Distribution
Date, the Verification Agent may issue and deliver to the Master Servicer and
the Depositor the Verification Report upon the completion of its verification
duties. The Master Servicer shall forward the Verification Report to the related
Servicer and shall notify the related Servicer if the Master Servicer has
determined that the related Servicer did not deliver the appropriate Prepayment
Charge to the Securities Administrator in accordance with this Agreement. Such
written notification from the Master Servicer shall include the loan number,
prepayment penalty code and prepayment penalty amount as calculated by the
Master Servicer or the Verification Agent, as applicable, of each Mortgage
Loan
for which there is a discrepancy. If the related Servicer agrees with the
verified amounts, the related Servicer shall adjust the immediately succeeding
Servicer Report and the amount remitted to the Securities Administrator with
respect to prepayments accordingly. If the related Servicer disagrees with
the
determination of the Master Servicer, the related Servicer shall, within five
(5) Business Days of its receipt of the Verification Report, notify the Master
Servicer of such disagreement and provide the Master Servicer with detailed
information to support its position. The related Servicer and the Master
Servicer shall cooperate to resolve any discrepancy on or prior to the
immediately succeeding Servicer Remittance Date, and the related Servicer will
indicate the effect of such resolution on the related Servicer Report and shall
adjust the amount remitted with respect to prepayments on such Servicer
Remittance Date accordingly.
During
such time as the related Servicer and the Master Servicer are resolving
discrepancies with respect to the Prepayment Charges, no payments in respect
of
any disputed Prepayment Charges will be remitted to the Securities Administrator
for deposit in the Distribution Account and the Master Servicer shall not be
obligated to deposit such payments, unless otherwise required pursuant to
Section 8.01 hereof. In connection with such duties, the Master Servicer shall
be able to rely solely on the information provided to it by the related Servicer
in accordance with this Section. The Master Servicer shall not be responsible
for verifying the accuracy of any of the information provided to it by the
related Servicer.
ARTICLE
V
PAYMENTS
TO CERTIFICATEHOLDERS
SECTION
5.01. Distributions.
(a) (1)
On
each Distribution Date, the following amounts, in the following order of
priority, shall be distributed by REMIC I to REMIC II on account of the REMIC
I
Regular Interests and distributed to the holders of the Class R Certificates
(in
respect of the Class R-I Interest), as the case may be:
(i) to
Holders of REMIC I Regular Interest A-I, REMIC I Regular Interest I-CE-2, REMIC
I Regular Interest II-CE-2 and REMIC I Regular Interest I-1-A through REMIC
I
Regular Interest I-63-B, pro
rata,
in an
amount equal to (A) Uncertificated Interest for such REMIC I Regular Interests
for such Distribution Date, plus (B) any amounts payable in respect thereof
remaining unpaid from previous Distribution Dates; and
(ii) to
the
extent of amounts remaining after the distributions made pursuant to clause
(i)
above, payments of principal shall be allocated, first, to REMIC I Regular
Interest A-I and, second, to REMIC I Regular Interest I-1-A through REMIC I
Regular Interest I-63-B starting with the lowest numerical denomination until
the Uncertificated Balance of each such REMIC I Regular Interest is reduced
to
zero, provided that, for REMIC I Regular Interests with the same numerical
denomination, such payments of principal shall be allocated pro
rata
between
such REMIC I Regular Interests.
(iii) to
the
holders of REMIC I Regular Interest P, all Prepayment Charges and on the
Distribution Date immediately following the expiration of the latest Prepayment
Charge as identified on the Prepayment Charge Schedule or any Distribution
Date
thereafter until $100 has been distributed pursuant to this clause;
(2)
On
each Distribution Date, the following amounts, in the following order of
priority, 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, in respect of the Class R-II
Interest, as the case may be:
(i) to
Holders of REMIC II Regular Interest AA, REMIC II Regular Interest A, REMIC
II
Regular Interest M-1A, REMIC II Regular Interest M-1B, REMIC II Regular Interest
M-2, REMIC II Regular Interest M-3, REMIC II Regular Interest M-4, REMIC II
Regular Interest M-5, REMIC II Regular Interest M-6, REMIC II Regular Interest
M-7, REMIC II Regular Interest M-8, REMIC II Regular Interest M-9, REMIC II
Regular Interest B-1, REMIC II Regular Interest ZZ and REMIC II Regular Interest
CE-2, pro rata, in an amount equal to (A) the Uncertificated Interest for such
Distribution Date, plus (B) any amounts in respect thereof remaining unpaid
from
previous Distribution Dates. Amounts payable as Uncertificated Interest in
respect of REMIC II Regular Interest ZZ shall be reduced 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 Maximum II-ZZ Uncertificated Interest Deferral Amount and such
amount will be payable to the Holders of Regular II Regular Interest A, REMIC
II
Regular Interest M-1A, REMIC II Regular Interest M-1B, REMIC II Regular Interest
M-2, REMIC II Regular Interest M-3, REMIC II Regular Interest M-4, REMIC II
Regular Interest M-5, REMIC II Regular Interest M-6, REMIC II Regular Interest
M-7, REMIC II Regular Interest M-8, REMIC II Regular Interest M-9 and REMIC
II
Regular Interest B-1 in the same proportion as the Overcollateralization
Increase Amount is allocated to the Corresponding Certificates and the
Uncertificated Balance of REMIC II Regular Interest ZZ shall be increased by
such amount;
(ii) to
the
Holders of REMIC II Regular Interests, in an amount equal to the remainder
of
the available funds for such Distribution Date after the distributions made
pursuant to clause (i) above, allocated as follows:
(A) 98.00%
of
such remainder to the Holders of REMIC II Regular Interest AA, until the
Uncertificated Balance of such REMIC II Regular Interest is reduced to
zero;
(B) 2.00%
of
such remainder, first, to the Holders of REMIC II Regular Interest A, REMIC
II
Regular Interest M-1A, REMIC II Regular Interest M-1B, REMIC II Regular Interest
M-2, REMIC II Regular Interest M-3, REMIC II Regular Interest M-4, REMIC II
Regular Interest M-5, REMIC II Regular Interest M-6, REMIC II Regular Interest
M-7, REMIC II Regular Interest M-8, REMIC II Regular Interest M-9 and REMIC
II
Regular Interest B-1, 1.00% of and in the same proportion as principal payments
are allocated to the Corresponding Certificates, until the Uncertificated
Balances of such REMIC II Regular Interests are reduced to zero and second
to
the Holders of REMIC II Regular Interest ZZ until the Uncertificated Balance
of
such REMIC II Regular Interest is reduced to zero;
(C) to
the
Holders of REMIC II Regular Interest P, 100% of all Prepayment Charges
distributed to REMIC I Regular Interest P on each Distribution Date;
then
(D) any
remaining amount to the Holders of the Class R Certificates (in respect of
the
Class R-II Interest);
provided,
however, that 98.00% and 2.00% of any principal payments that are attributable
to an Overcollateralization Reduction Amount shall be allocated to Holders
of
REMIC II Regular Interest AA and REMIC II Regular Interest ZZ,
respectively.
(iii) Notwithstanding
the distributions described in Section 5.01(a)(1) and (2), distributions of
funds shall be made to Certificateholders only in accordance with Section
5.01(a)(3) through (6) Section 5.01(b) and (c).
(3) On
each
Distribution Date, the Securities Administrator shall withdraw from the
Distribution Account to the extent on deposit therein an amount equal to the
Interest Remittance Amount and make the following disbursements and transfers
in
the order of priority described below, in each case to the extent of the
Interest Remittance Amount remaining for such Distribution Date:
first,
to the
Supplemental Interest Trust, an amount equal to the sum of any Net Swap Payment
owed to the Swap Provider and any Swap Termination Payment owed to the Swap
Provider not due to a Swap Provider Trigger Event;
second,
to the
Holders of the Class A Certificates, the Senior Interest Distribution Amount
allocable to the Class A Certificates;
third,
concurrently, to the Holders of the Class M-1A Certificates and Class M-1B
Certificates, the Interest Distribution Amount allocable to each such Class
on a
pro
rata
basis,
based on the entitlement of each such Class;
fourth,
to the
Holders of the Class M-2 Certificates, the Interest Distribution Amount
allocable to the Class M-2 Certificates;
fifth,
to the
Holders of the Class M-3 Certificates, the Interest Distribution Amount
allocable to the Class M-3 Certificates;
sixth,
to the
Holders of the Class M-4 Certificates, the Interest Distribution Amount
allocable to the Class M-4 Certificates;
seventh,
to the
Holders of the Class M-5 Certificates, the Interest Distribution Amount
allocable to the Class M-5 Certificates;
eighth,
to the
Holders of the Class M-6 Certificates, the Interest Distribution Amount
allocable to the Class M-6 Certificates;
ninth,
to the
Holders of the Class M-7 Certificates, the Interest Distribution Amount
allocable to the Class M-7 Certificates;
tenth,
to the
Holders of the Class M-8 Certificates, the Interest Distribution Amount
allocable to the Class M-8 Certificates;
eleventh,
to the
Holders of the Class M-9 Certificates, the Interest Distribution Amount
allocable to the Class M-9 Certificates; and
twelfth,
to the
Holders of the Class B-1 Certificates, the Interest Distribution Amount
allocable to the Class B-1 Certificates.
(4) On
each
Distribution Date (a) prior to the Stepdown Date or (b) on which a Trigger
Event
is in effect, the Securities Administrator shall withdraw from the Distribution
Account to the extent on deposit therein an amount equal to the Principal
Distribution Amount and distribute to the Certificateholders the following
amounts, in the following order of priority:
first,
to the
Supplemental Interest Trust, an amount equal to the sum of any Net Swap Payment
owed to the Swap Provider and any Swap Termination Payment owed to the Swap
Provider not due to a Swap Provider Trigger Event to the extent not paid from
the Interest Remittance Amount on such Distribution Date;
second,
to the
Holders of the Class A Certificates, until the Certificate Principal Balance
of
the Class A Certificates has been reduced to zero;
third,
concurrently, to the Holders of the Class M-1A Certificates and Class M-1B
Certificates, on a pro
rata
basis,
based on the Certificate Principal Balance of each such Class, until the
Certificate Principal Balance of each such Class has been reduced to
zero;
fourth,
to the
Holders of the Class M-2 Certificates, until the Certificate Principal Balance
of the Class M-2 Certificates has been reduced to zero;
fifth,
to the
Holders of the Class M-3 Certificates, until the Certificate Principal Balance
of the Class M-3 Certificates has been reduced to zero;
sixth,
to the
Holders of the Class M-4 Certificates, until the Certificate Principal Balance
of the Class M-4 Certificates has been reduced to zero;
seventh,
to the
Holders of the Class M-5 Certificates, until the Certificate Principal Balance
of the Class M-5 Certificates has been reduced to zero;
eighth,
to the
Holders of the Class M-6 Certificates, until the Certificate Principal Balance
of the Class M-6 Certificates has been reduced to zero;
ninth,
to the
Holders of the Class M-7 Certificates, until the Certificate Principal Balance
of the Class M-7 Certificates has been reduced to zero;
tenth,
to the
Holders of the Class M-8 Certificates, until the Certificate Principal Balance
of the Class M-8 Certificates has been reduced to zero;
eleventh,
to the
Holders of the Class M-9 Certificates, until the Certificate Principal Balance
of the Class M-9 Certificates has been reduced to zero; and
twelfth,
to the
Holders of the Class B-1 Certificates, until the Certificate Principal Balance
of the Class B-1 Certificates has been reduced to zero.
(5) On
each
Distribution Date (a) on or after the Stepdown Date and (b) on which a Trigger
Event is not in effect, the Securities Administrator shall withdraw from the
Distribution Account to the extent on deposit therein an amount equal to the
Principal Distribution Amount and distribute to the Certificateholders the
following amounts, in the following order of priority:
first,
to the
Supplemental Interest Trust, an amount equal to the sum of any Net Swap Payment
owed to the Swap Provider and any Swap Termination Payment owed to the Swap
Provider not due to a Swap Provider Trigger Event to the extent not paid from
the Interest Remittance Amount on such Distribution Date;
second,
to the
Holders of the Class A Certificates, the lesser of (x) the excess of (i) the
Principal Distribution Amount over (ii) the amount distributed to the
Supplemental Interest Trust under clause first
above,
and (y) the Class A Principal Distribution Amount, until the Certificate
Principal Balance of the Class A Certificates has been reduced to
zero;
third,
concurrently, to the Holders of the Class M-1A Certificates and Class M-1B
Certificates, the lesser of (x) the excess of (i) the Principal Distribution
Amount over (ii) the amount distributed to the Supplemental Interest Trust
under
clause first
above
and to the Holders of the Class A Certificates under clause second
above,
and (y) the Class M-1 Principal Distribution Amount, on a pro rata basis, based
on the Certificate Principal Balance of each such Class until the Certificate
Principal Balance of each such Class has been reduced to zero;
fourth,
to the
Holders of the Class M-2 Certificates, the lesser of (x) the excess of (i)
the
Principal Distribution Amount over (ii) the sum of the amounts distributed
to
the Supplemental Interest Trust under clause first
above,
to the Holders of the Class A Certificates under clause second
above
and to the Holders of the Class M-1A Certificates and Class M-1B Certificates
under clause third
above,
and (y) the Class M-2 Principal Distribution Amount, until the Certificate
Principal Balance of the Class M-2 Certificates has been reduced to
zero;
fifth,
to the
Holders of the Class M-3 Certificates, the lesser of (x) the excess of (i)
the
Principal Distribution Amount over (ii) the sum of the amounts distributed
to
the Supplemental Interest Trust under clause first
above,
to the Holders of the Class A Certificates under clause second
above,
to the Holders of the Class M-1A Certificates and Class M-1B Certificates under
clause third
above
and to the Holders of the Class M-2 Certificates under clause fourth
above,
and (y) the Class M-3 Principal Distribution Amount, until the Certificate
Principal Balance of the Class M-3 Certificates has been reduced to
zero;
sixth,
to the
Holders of the Class M-4 Certificates, the lesser of (x) the excess of (i)
the
Principal Distribution Amount over (ii) the sum of the amounts distributed
to
the Supplemental Interest Trust under clause first
above,
to the Holders of the Class A Certificates under clause second
above,
to the Holders of the Class M-1A Certificates and Class M-1B Certificates under
clause third
above,
to the Holders of the Class M-2 Certificates under clause fourth
above
and to the Holders of the Class M-3 Certificates under clause fifth
above,
and (y) the Class M-4 Principal Distribution Amount, until the Certificate
Principal Balance of the Class M-4 Certificates has been reduced to
zero;
seventh,
to the
Holders of the Class M-5 Certificates, the lesser of (x) the excess of (i)
the
Principal Distribution Amount over (ii) the sum of the amounts distributed
to
the Supplemental Interest Trust under clause first
above,
to the Holders of the Class A Certificates under clause second
above,
to the Holders of the Class M-1A Certificates and Class M-1B Certificates under
clause third
above,
to the Holders of the Class M-2 Certificates under clause fourth
above,
to the Holders of the Class M-3 Certificates under clause fifth
above
and to the Holders of the Class M-4 Certificates under clause sixth
above,
and (y) the Class M-5 Principal Distribution Amount, until the Certificate
Principal Balance of the Class M-5 Certificates has been reduced to
zero;
eighth,
to the
Holders of the Class M-6 Certificates, the lesser of (x) the excess of (i)
the
Principal Distribution Amount over (ii) the sum of the amounts distributed
to
the Supplemental Interest Trust under clause first
above,
to the Holders of the Class A Certificates under clause second
above,
to the Holders of the Class M-1A Certificates and Class M-1B Certificates under
clause third
above,
to the Holders of the Class M-2 Certificates under clause fourth
above,
to the Holders of the Class M-3 Certificates under clause fifth
above,
to the Holders of the Class M-4 Certificates under clause sixth
above
and to the Holders of the Class M-5 Certificates under clause seventh
above,
and (y) the Class M-6 Principal Distribution Amount, until the Certificate
Principal Balance of the Class M-6 Certificates has been reduced to zero;
ninth,
the
Holders of the Class M-7 Certificates, the lesser of (x) the excess of (i)
the
Principal Distribution Amount over (ii) the sum of the amounts distributed
to
the Supplemental Interest Trust under clause first
above,
to the Holders of the Class A Certificates under clause second
above,
to the Holders of the Class M-1A Certificates and Class M-1B Certificates under
clause third
above,
to the Holders of the Class M-2 Certificates under clause fourth
above,
to the Holders of the Class M-3 Certificates under clause fifth
above,
to the Holders of the Class M-4 Certificates under clause sixth
above,
to the Holders of the Class M-5 Certificates under clause seventh
above
and to the Holders of the Class M-6 Certificates under clause eighth
above,
and (y) the Class M-7 Principal Distribution Amount, until the Certificate
Principal Balance of the Class M-7 Certificates has been reduced to
zero;
tenth,
to the
Holders of the Class M-8 Certificates, the lesser of (x) the excess of (i)
the
Principal Distribution Amount over (ii) the sum of the amounts distributed
to
the Supplemental Interest Trust under clause first
above,
to the Holders of the Class A Certificates under clause second
above,
to the Holders of the Class M-1A Certificates and Class M-1B Certificates under
clause third
above,
to the Holders of the Class M-2 Certificates under clause fourth
above,
to the Holders of the Class M-3 Certificates under clause fifth
above,
to the Holders of the Class M-4 Certificates under clause sixth
above,
to the Holders of the Class M-5 Certificates under clause seventh
above,
to the Holders of the Class M-6 Certificates under clause eighth
above
and to the Holders of the Class M-7 Certificates under clause ninth
above,
and (y) the Class M-8 Principal Distribution Amount, until the Certificate
Principal Balance of the Class M-8 Certificates has been reduced to zero;
eleventh,
to the
Holders of the Class M-9 Certificates, the lesser of (x) the excess of (i)
the
Principal Distribution Amount over (ii) the sum of the amounts distributed
to
the Supplemental Interest Trust under clause first
above,
to the Holders of the Class A Certificates under clause second
above,
to the Holders of the Class M-1A Certificates and Class M-1B Certificates under
clause third
above,
to the Holders of the Class M-2 Certificates under clause fourth
above,
to the Holders of the Class M-3 Certificates under clause fifth
above,
to the Holders of the Class M-4 Certificates under clause sixth
above,
to the Holders of the Class M-5 Certificates under clause seventh
above,
to the Holders of the Class M-6 Certificates under clause eighth
above,
to the Holders of the Class M-7 Certificates under clause ninth
above
and to the Holders of the Class M-8 Certificates under clause tenth
above,
and (y) the Class M-9 Principal Distribution Amount, until the Certificate
Principal Balance of the Class M-9 Certificates has been reduced to zero;
and
twelfth,
to the
Holders of the Class B-1 Certificates, the lesser of (x) the excess of (i)
the
Principal Distribution Amount over (ii) the sum of the amounts distributed
to
the Supplemental Interest Trust under clause first
above,
to the Holders of the Class A Certificates under clause second
above,
to the Holders of the Class M-1A Certificates and Class M-1B Certificates under
clause third
above,
to the Holders of the Class M-2 Certificates under clause fourth
above,
to the Holders of the Class M-3 Certificates under clause fifth
above,
to the Holders of the Class M-4 Certificates under clause sixth
above,
to the Holders of the Class M-5 Certificates under clause seventh
above,
to the Holders of the Class M-6 Certificates under clause eighth
above,
to the Holders of the Class M-7 Certificates under clause ninth
above,
to the Holders of the Class M-8 Certificates under clause tenth
above
and to the Holders of the Class M-9 Certificates under clause eleventh
above,
and (y) the Class B-1 Principal Distribution Amount, until the Certificate
Principal Balance of the Class B-1 Certificates has been reduced to
zero.
(6) On
each
Distribution Date, the Net Monthly Excess Cashflow (or, in the case of clause
(i) below, the Net Monthly Excess Cashflow exclusive of any
Overcollateralization Reduction Amount) shall be distributed as
follows:
first,
to the
Holders of the Class or Classes of Certificates then entitled to receive
distributions in respect of principal, in an amount equal to any
Overcollateralization Amount, payable to such Holders in accordance with the
priorities set forth under Section 5.01(a)(4) above;
second,
concurrently, to the Holders of the Class M-1A Certificates and Class M-1B
Certificates, in an amount equal to the Interest Carry Forward Amount allocable
to each such Class, on a pro
rata
basis
based on the entitlement of each such Class;
third,
sequentially, to the Holders of the Class M-2, Class M-3, Class M-4, Class
M-5,
Class M-6, Class M-7, Class M-8, Class M-9 and Class B-1 Certificates, in that
order, in an amount equal to the Interest Carry Forward Amount allocable to
each
such Class;
fourth,
concurrently, to the Holders of the Class M-1A Certificates and Class M-1B
Certificates, in that order, in an amount equal to the Allocated Realized Loss
Amount allocable to each such Class, on a pro
rata
basis
based on the entitlement of each such Class;
fifth,
sequentially, to the Holders of the Class M-2, Class M-3, Class M-4, Class
M-5,
Class M-6, Class M-7, Class M-8, Class M-9 and Class B-1 Certificates, in that
order, in an amount equal to the Allocated Realized Loss Amount allocable to
each such Class;
sixth,
to the
Holders of the Class A Certificates, in an amount equal to such certificates’
allocated share of any Prepayment Interest Shortfalls on the Mortgage Loans
to
the extent not covered by Compensating Interest paid by the Master Servicer
or
the Servicers and any shortfalls resulting from the application of the Relief
Act or similar state or local law or the bankruptcy code with respect to the
Mortgage Loans;
seventh,
concurrently, to the Holders of the Class M-1A Certificates and Class M-1B
Certificates, in an amount equal to each such certificates’ allocated share of
any Prepayment Interest Shortfalls on the Mortgage Loans to the extent not
covered by Compensating Interest paid by the Master Servicer or the Servicers
and any shortfalls resulting from the application of the Relief Act or similar
state or local law or the bankruptcy code with respect to the Mortgage Loans,
on
a pro rata basis based on the entitlement of each such Class;
eighth,
sequentially, to the Holders of the Class M-2, Class M-3, Class M-4, Class
M-5,
Class M-6, Class M-7, Class M-8, Class M-9 and Class B-1 Certificates, in that
order, in an amount equal to each such certificates’ allocated share of any
Prepayment Interest Shortfalls on the Mortgage Loans to the extent not covered
by Compensating Interest paid by the Master Servicer or the Servicers and any
shortfalls resulting from the application of the Relief Act or similar state
or
local law or the bankruptcy code with respect to the Mortgage
Loans;
ninth,
to the
Reserve Fund, the amount by which the sum of the Net WAC Rate Carryover Amounts,
if any, with respect to the Offered Certificates and the Class B-1 Certificates
exceeds any amounts in the Reserve Fund that were not distributed on prior
Distribution Dates;
tenth,
to the
Supplemental Interest Trust, an amount equal to any Swap Termination Payment
owed to the Swap Provider, due to a Swap Provider Trigger Event pursuant to
the
Interest Rate Swap Agreement;
eleventh,
to the
Holders of the Class CE-1 Certificates, the Interest Distribution Amount and
any
Overcollateralization Reduction Amount for such Distribution Date;
and
twelfth,
to the
Holders of the Class R Certificates, in respect of the Class R-III Interest,
any
remaining amounts; provided that if such Distribution Date is the Distribution
Date immediately following the expiration of the latest Prepayment Charge term
as identified on the Mortgage Loan Schedule or any Distribution Date thereafter,
then any such remaining amounts will be distributed first, to the Holders of
the
Class P Certificates, until the Certificate Principal Balance thereof has been
reduced to zero; and second, to the Holders of the Class R
Certificates.
The
Class
CE-1 Certificates are intended to receive all principal and interest received
by
the Trust on the Mortgage Loans that is not otherwise distributable to any
other
Class of Regular Certificates or REMIC Regular Interests. If the Securities
Administrator determines that the Residual Certificates are entitled to any
distributions on any Distribution Date other than the final Distribution Date,
the Securities Administrator, prior to any such distribution to any Residual
Certificate, shall notify the Depositor of such impending distribution. Upon
such notification, the Depositor will prepare and request that the other parties
hereto enter into an amendment to the Pooling and Servicing Agreement pursuant
to Section 12.01, to revise such mistake in the distribution
provisions.
On
each
Distribution Date, after making the distributions of the Available Distribution
Amount as set forth above, the Securities Administrator will first, withdraw
from the Reserve Fund all income from the investment of funds in the Reserve
Fund and distribute such amount to the Holders of the Class CE-1 Certificates,
and second, withdraw from the Reserve Fund, to the extent of amounts remaining
on deposit therein, the amount of any Net WAC Rate Carryover Amount for such
Distribution Date and distribute such amount first,
to the
Class A Certificates; on a pro
rata
basis
second,
concurrently, to the Class M-1A Certificates and Class M-1B Certificates,
third,
to the
Class M-2 Certificates, fourth,
to the
Class M-3 Certificates, fifth,
to the
Class M-4 Certificates, sixth,
to the
Class M-5 Certificates, seventh,
to the
Class M-6 Certificates, eighth,
to the
Class M-7 Certificates, ninth,
to the
Class M-8 Certificates, tenth,
to the
Class M-9 Certificates, and eleventh,
to the
Class B-1 Certificates, in each case to the extent to the extent any Net WAC
Rate Carryover Amount is allocable to each such Class.
(b) On
each
Distribution Date, for so long as Ocwen is the Servicer of the Ocwen Mortgage
Loans and GMAC is the Servicer of the GMAC Mortgage Loans, the Securities
Administrator shall distribute to the Holders of the Class CE-2 Certificates,
with respect to each such Mortgage Loan, one-twelfth of the product of (i)
the
excess of the Servicing Fee Rate over the Ocwen Servicing Fee Rate and the
GMAC
Servicing Fee Rate, as applicable, if any, multiplied by (ii) the Scheduled
Principal Balance of the related Mortgage Loan as of the Due Date in the
preceding calendar month (the “Excess Servicing Fee”).
(c) As
described in Section 5.01(a)(3), (4), (5) and (6) above, Net Swap Payments
and
Swap Termination Payments (other than Swap Termination Payments resulting from
a
Swap Provider Trigger Event) payable by the Supplemental Interest Trust to
the
Swap Provider pursuant to the Swap Agreement shall be deducted from the Interest
Remittance Amount, and to the extent of any such remaining amounts due, from
the
Principal Remittance Amount, prior to any distributions to the
Certificateholders. On each Distribution Date, such amounts will be remitted
to
the Supplemental Interest Trust, first to make any Net Swap Payment owed to
the
Swap Provider pursuant to the Swap Agreement for such Distribution Date, and
second to make any Swap Termination Payment (not due to a Swap Provider Trigger
Event) owed to the Swap Provider pursuant to the Swap Agreement for such
Distribution Date. Any Swap Termination Payment triggered by a Swap Provider
Trigger Event owed to the Swap Provider pursuant to the Swap Agreement will
be
subordinated to distributions to the Holders of the Offered Certificates and
shall be paid pursuant to clause tenth
of
Section 5.01(a)(6).
(d) On
each
Distribution Date, to the extent required, following the distribution of the
Net
Monthly Excess Cashflow and withdrawals from the Reserve Fund, the Securities
Administrator will withdraw any amounts in the Supplemental Interest Trust
and
distribute such amounts in the following order of priority:
first,
to the
Swap Provider, any Net Swap Payment owed to the Swap Provider pursuant to the
Swap Agreement for such Distribution Date;
second,
to the
Swap Provider, any Swap Termination Payment owed to the Swap Provider not due
to
a Swap Provider Trigger Event pursuant to the Swap Agreement;
third,
to the
Class A Certificates, the Senior Interest Distribution Amount remaining
undistributed after the distributions of the Interest Remittance Amount on
such
Distribution Date;
fourth,
concurrently, to the Class M-1A Certificates and Class M-1B Certificates, the
related Interest Distribution Amount and Interest Carry Forward Amount for
each
such class to the extent remaining undistributed after the distribution of
the
Interest Remittance Amount and the Net Monthly Excess Cashflow, on a pro rata
basis, based on the entitlement of each such class;
fifth,
sequentially, to the Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class M-4, Class M-5, Class M-6,
Class M-7, Class M-8, Class M-9 and Class B-1 Certificates, in that order,
the
related Interest Distribution Amount and Interest Carry Forward Amount, to
the
extent remaining undistributed after the distributions of the Interest
Remittance Amount and the Net Monthly Excess Cashflow;
sixth,
to the
Class A Certificates, the related Net WAC Rate Carryover Amount, to the extent
remaining undistributed after distributions of Net Monthly Excess Cashflow
on
deposit in the Reserve Fund;
seventh,
concurrently, to the Class M-1A Certificates and Class M-1B Certificates, the
related Net WAC Rate Carryover Amount, to the extent remaining undistributed
after distributions of Net Monthly Excess Cashflow on deposit in the Reserve
Fund, on a pro rata basis, based on the entitlement of each such
class;
eighth,
sequentially, to the Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class M-4, Class M-5, Class M-6,
Class M-7, Class M-8, Class M-9 and Class B-1 Certificates, in that order,
the
related Net WAC Rate Carryover Amount, to the extent remaining undistributed
after distributions are made from the Reserve Fund;
ninth,
to the
holders of the Class or Classes of Certificates then entitled to receive
distributions in respect of principal, in an amount necessary to maintain the
Required Overcollateralization Amount after taking into account distributions
made pursuant to clause first
of
Section 5.01(a)(6) above;
tenth,
concurrently, to the Class M-1A Certificates and Class M-1B Certificates, in
each case up to the Allocated Realized Loss Amount related to each such class
for such Distribution Date remaining undistributed after distribution of Net
Monthly Excess Cashflow for such Distribution Date, on a pro rata basis, based
on the amount of the Allocated Realized Loss Amount remaining unpaid for each
such class;
eleventh,
sequentially to the Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class M-4, Class M-5, Class M-6,
Class
M-7, Class M-8, Class M-9 and Class B-1 Certificates, in that order, in each
case up to the related Allocated Realized Loss Amount related to each such
class
for such Distribution Date remaining undistributed after distribution of the
Net
Monthly Excess Cashflow;
twelfth,
to the
Swap Provider, an amount equal to any Swap Termination Payment owed to the
Swap
Provider due to a Swap Provider Trigger Event pursuant to the Swap Agreement;
and
thirteenth,
to the
Class CE-1 Certificates, any remaining amounts.
(e) On
each
Distribution Date, the Securities Administrator shall withdraw any amounts
then
on deposit in the Distribution Account that represent Prepayment Charges and
shall distribute such amounts to the Class P Certificateholders as described
above.
(f) All
distributions made with respect to each Class of Certificates on each
Distribution Date shall be allocated pro
rata
among
the outstanding Certificates in such Class based on their respective Percentage
Interests. Payments in respect of each Class of Certificates on each
Distribution Date will be made to the Holders of the respective Class of record
on the related Record Date (except as otherwise provided in Section 5.01(h)
or Section 10.01 respecting the final distribution on such Class), based on
the aggregate Percentage Interest represented by their respective Certificates,
and shall be made by wire transfer of immediately available funds to the account
of any such Holder at a bank or other entity having appropriate facilities
therefor, if such Holder shall have so notified the Securities Administrator
in
writing at least five (5) Business Days prior to the Record Date immediately
prior to such Distribution Date and is the registered owner of Certificates
having an initial aggregate Certificate Principal Balance that is in excess
of
the lesser of (i) $5,000,000 or (ii) two-thirds of the initial Certificate
Principal Balance of such Class of Certificates, or otherwise by check mailed
by
first class mail to the address of such Holder appearing in the Certificate
Register. The final distribution on each Certificate will be made in like
manner, but only upon presentment and surrender of such Certificate at the
Corporate Trust Office of the Securities Administrator or such other location
specified in the notice to Certificateholders of such final
distribution.
Each
distribution with respect to a Book-Entry Certificate shall be paid to the
Depository, as Holder thereof, and the Depository shall be responsible for
crediting the amount of such distribution to the accounts of its Depository
Participants in accordance with its normal procedures. Each Depository
Participant shall be responsible for disbursing such distribution to the
Certificate Owners that it represents and to each indirect participating
brokerage firm (a “brokerage firm” or “indirect participating firm”) for which
it acts as agent. Each brokerage firm shall be responsible for disbursing funds
to the Certificate Owners that it represents. None of the Trustee, the
Depositor, the Servicer, the Securities Administrator or the Master Servicer
shall have any responsibility therefor except as otherwise provided by this
Agreement or applicable law.
(g) The
rights of the Certificateholders to receive distributions in respect of the
Certificates, and all interests of the Certificateholders in such distributions,
shall be as set forth in this Agreement. None of the Holders of any Class of
Certificates, the Trustee, the Servicer, the Securities Administrator or the
Master Servicer shall in any way be responsible or liable to the Holders of
any
other Class of Certificates in respect of amounts properly previously
distributed on the Certificates.
(h) Except
as
otherwise provided in Section 10.01, whenever the Securities Administrator
expects that the final distribution with respect to any Class of Certificates
will be made on the next Distribution Date, the Securities Administrator shall,
no later than three (3) days before the related Distribution Date, mail to
each
Holder on such date of such Class of Certificates a notice to the effect
that:
(i) the
Securities Administrator expects that the final distribution with respect to
such Class of Certificates will be made on such Distribution Date but only
upon
presentation and surrender of such Certificates at the office of the Securities
Administrator therein specified, and
(ii) no
interest shall accrue on such Certificates from and after the end of the related
Interest Accrual Period.
Any
funds
not distributed to any Holder or Holders of Certificates of such Class on such
Distribution Date because of the failure of such Holder or Holders to tender
their Certificates shall, on such date, be set aside and held in trust by the
Securities Administrator and credited to the account of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has
been
given pursuant to this Section 5.01(h) shall not have been surrendered for
cancellation within six (6) months after the time specified in such notice,
the
Securities Administrator shall mail a second notice to the remaining
non-tendering Certificateholders to surrender their Certificates for
cancellation in order to receive the final distribution with respect thereto.
If
within one year after the second notice all such Certificates shall not have
been surrendered for cancellation, the Securities Administrator shall, directly
or through an agent, mail a final notice to the remaining non-tendering
Certificateholders concerning surrender of their Certificates but shall continue
to hold any remaining funds for the benefit of non-tendering Certificateholders.
The costs and expenses of maintaining the funds in trust and of contacting
such
Certificateholders shall be paid out of the assets remaining in such trust
fund.
If within one year after the final notice any such Certificates shall not have
been surrendered for cancellation, the Securities Administrator shall pay to
the
Depositor all such amounts, and all rights of non-tendering Certificateholders
in or to such amounts shall thereupon cease. No interest shall accrue or be
payable to any Certificateholder on any amount held in trust by the Securities
Administrator as a result of such Certificateholder’s failure to surrender its
Certificate(s) on the final Distribution Date for final payment thereof in
accordance with this Section 5.01(h). Any such amounts held in trust by the
Securities Administrator shall be held uninvested in an Eligible
Account.
(i) Notwithstanding
anything to the contrary herein, (i) in no event shall the Certificate Principal
Balance of a Class A Certificate, a Mezzanine Certificate or a Class B-1
Certificate be reduced more than once in respect of any particular amount both
(a) allocated to such Certificate in respect of Realized Losses pursuant to
Section 5.04 and (b) distributed to the Holder of such Certificate in
reduction of the Certificate Principal Balance thereof pursuant to this
Section 5.01 from Net Monthly Excess Cashflow and (ii) in no event shall
the Uncertificated Balance of a REMIC Regular Interest be reduced more than
once
in respect of any particular amount both (a) allocated to such REMIC Regular
Interest in respect of Realized Losses pursuant to Section 5.04 and (b)
distributed on such REMIC Regular Interest in reduction of the Uncertificated
Balance thereof pursuant to this Section 5.01.
SECTION
5.02. Statements
to Certificateholders.
On
each
Distribution Date, the Securities Administrator (based in part on the
information set forth in the Servicer Reports for such Distribution Date and
information provided by the Swap Provider under the Swap Agreement with respect
to payments made pursuant to the Swap Agreement) shall make available to each
Holder of the Certificates, a statement as to the distributions made on such
Distribution Date setting forth:
(i) the
applicable Interest Accrual Periods and general Distribution Dates;
(ii) the
total
cash flows received and the general sources thereof;
(iii) the
aggregate Servicing Fee received by the Servicers, the Master Servicing Fee
received by the Master Servicer and the Credit Risk Management Fee received
by
the Credit Risk Manager during the related Due Period;
(iv) the
aggregate amount, if any, of fees or expenses accrued and paid, with an
identification of the payee and the general purpose of such fees;
(v) the
amount of the distribution made on such Distribution Date to the Holders of
the
Certificates of each Class allocable to principal, the amount of the
distribution made on such Distribution Date to the Holders of the Class P
Certificates allocable to Prepayment Charges and the amount of the distribution
to the Class CE-1 Certificates and Class CE-2 Certificates;
(vi) the
amount of the distribution made on such Distribution Date to the Holders of
the
Certificates of each Class allocable to interest, and the portion thereof,
if
any, provided by the Interest Rate Swap Agreement;
(vii) the
aggregate amount of P&I Advances and Servicing Advances for such
Distribution Date (including the general purpose of such P&I
Advances);
(viii) the
number and aggregate principal balance of the Mortgage Loans that were
delinquent (exclusive of Mortgage Loans in foreclosure) using the “OTS” method
in respect of which (A) one scheduled payment is delinquent, (B) two scheduled
payments are delinquent, (C) three or more scheduled payments are delinquent
and
(D) (1) foreclosure proceedings have been initiated, and (2) the number and
aggregate principal balance of Mortgaged Properties acquired through
foreclosure, deed in lieu of foreclosure or other exercise of rights respecting
the Trustee’s security interest in the Mortgage Loans, in each case as of the
close of business on the last day of the calendar month preceding such
Distribution Date;
(ix) the
number, aggregate principal balance, weighted average remaining term to maturity
and weighted average Mortgage Rate of the Mortgage Loans as of the related
Due
Date;
(x) with
respect to any Mortgage Loan that was liquidated during the preceding calendar
month, the loan number of such Mortgage Loan, the unpaid principal balance
and
the Scheduled Principal Balance of and Realized Loss on, such Mortgage Loan
as
of the end of the related Prepayment Period;
(xi) the
total
number and principal balance of any real estate owned, or REO, properties as
of
the end of the related Prepayment Period and, if available, the book value
of
any REO Property as of the close of business on the last Business Day of the
calendar month preceding the Distribution Date;
(xii) whether
the Stepdown Date or a Trigger Event is in effect;
(xiii) the
aggregate amount of Realized Losses incurred during the related Prepayment
Period and the aggregate amount of Realized Losses incurred since the Closing
Date;
(xiv) the
aggregate amount of Extraordinary Trust Fund Expenses withdrawn from the
Distribution Account for such Distribution Date;
(xv) the
aggregate Certificate Principal Balance of each Class of Certificates, before
and after giving effect to the distributions, and allocations of Realized
Losses, made on such Distribution Date, separately identifying any reduction
thereof due to allocations of Realized Losses;
(xvi) the
number and Scheduled Principal Balance of all the Mortgage Loans for the
following Distribution Date, together with updated pool composition
information;
(xvii) the
three-month rolling average of the percent equivalent of a fraction, the
numerator of which is the aggregate Scheduled Principal Balance of the Mortgage
Loans that are 60 days or more delinquent or are in bankruptcy or foreclosure
or
are REO properties, and the denominator of which is the Scheduled Principal
Balances of all of the Mortgage Loans;
(xviii) the
Certificate Factor for each such Class of Certificates applicable to such
Distribution Date;
(xix) the
Interest Distribution Amount in respect of the Class A Certificates, the
Mezzanine Certificates, the Class B-1 Certificates, and the Class CE-1
Certificates for such Distribution Date and the Interest Carry Forward Amount,
if any, with respect to the Class A Certificates, the Mezzanine Certificates
and
the Class B-1 Certificates on such Distribution Date, and in the case of the
Class A Certificates, the Mezzanine Certificates and the Class B-1 Certificates
separately identifying any reduction thereof due to allocations of Realized
Losses, Prepayment Interest Shortfalls, Relief Act Interest Shortfalls and
Net
WAC Rate Carryover Amounts;
(xx) the
aggregate amount of any Prepayment Interest Shortfall for such Distribution
Date, to the extent not covered by payments by the Servicers pursuant to
Section 3.22 of this Agreement or the Master Servicer pursuant to
Section 4.18 of this Agreement;
(xxi) the
aggregate amount of Relief Act Interest Shortfalls for such Distribution
Date;
(xxii) the
Net
Monthly Excess Cashflow, if any, for such Distribution Date and the application
of such Net Monthly Excess Cashflow;
(xxiii) the
Required Overcollateralization Amount and the Credit Enhancement Percentage
for
such Distribution Date;
(xxiv) the
Overcollateralization Increase Amount, if any, for such Distribution
Date;
(xxv) the
Overcollateralization Reduction Amount, if any, for such Distribution
Date;
(xxvi) the
Net
WAC Rate Carryover Amount, if any, for such Distribution Date;
(xxvii) the
Net
WAC Rate Carryover Amount, if any, outstanding after reimbursements therefor
on
such Distribution Date;
(xxviii)
the
respective Pass-Through Rates applicable to the Class A Certificates, the
Mezzanine Certificates, the Class B-1 Certificates, and the Class CE-1
Certificates for such Distribution Date (and whether such Pass-Through Rate
was
limited by the Net WAC Pass-Through Rate);
(xxix) the
amount of any deposit to the Reserve Fund contemplated by
Section 3.24(b);
(xxx) the
balance of the Reserve Fund prior to the deposit or withdrawal of any amounts
on
such Distribution Date;
(xxxi) the
amount of any deposit to the Reserve Fund pursuant to
Section 5.01(a)(6);
(xxxii) the
balance of the Reserve Fund after all deposits and withdrawals on such
Distribution Date;
(xxxiii) the
Loss
Severity Percentage with respect to each Mortgage Loan; and
(xxxiv) the
Aggregate Loss Severity Percentage;
(xxxv) the
aggregate amount of Principal Prepayments made during the related Prepayment
Period and the aggregate amount of any Prepayment Charges remitted by the
Servicers in respect thereof; and
(xxxvi) the
amount of any Net Swap Payment payable by the Swap Provider to the Supplemental
Interest Trust, any Net Swap Payment payable to the Swap Provider, any Swap
Termination Payment payable by the Swap Provider to the Supplemental Interest
Trust and any Swap Termination Payment payable to the Swap Provider.
The
Securities Administrator will make such statement (and, at its option, any
additional files containing the same information in an alternative format)
available each month to the Certificateholders and the Rating Agencies via
the
Securities Administrator’s internet website. The Securities Administrator’s
internet website shall initially be located at http:\\▇▇▇.▇▇▇▇▇▇▇.▇▇▇ and
assistance in using the website can be obtained by calling the Securities
Administrator’s customer service desk at ▇-▇▇▇-▇▇▇-▇▇▇▇. Parties that are unable
to use the above distribution options are entitled to have a paper copy mailed
to them via first class mail by calling the customer service desk and indicating
such. The Securities Administrator shall have the right to change the way such
statements are distributed in order to make such distribution more convenient
and/or more accessible to the above parties and the Securities Administrator
shall provide timely and adequate notification to all above parties regarding
any such changes.
In
the
case of information furnished pursuant to subclauses (i) and (ii) above, the
amounts shall be expressed as a dollar amount per Single Certificate of the
relevant Class.
Within
a
reasonable period of time after the end of each calendar year, the Securities
Administrator shall furnish upon request to each Person who at any time during
the calendar year was a Holder of a Regular Certificate a statement containing
the information set forth in subclauses (i) through (iii) above, aggregated
for
such calendar year or applicable portion thereof during which such person was
a
Certificateholder. Such obligation of the Securities Administrator shall be
deemed to have been satisfied to the extent that substantially comparable
information shall be provided by the Securities Administrator pursuant to any
requirements of the Code as from time to time are in force.
Within
a
reasonable period of time after the end of each calendar year, the Securities
Administrator shall furnish upon request to each Person who at any time during
the calendar year was a Holder of a Residual Certificate a statement setting
forth the amount, if any, actually distributed with respect to the Residual
Certificates, as appropriate, aggregated for such calendar year or applicable
portion thereof during which such Person was a Certificateholder.
The
Securities Administrator shall, upon request, furnish to each Certificateholder
during the term of this Agreement, such periodic, special, or other reports
or
information, whether or not provided for herein, as shall be reasonable with
respect to the Certificateholder, as applicable, or otherwise with respect
to
the purposes of this Agreement, all such reports or information to be provided
at the expense of the Certificateholder, in accordance with such reasonable
and
explicit instructions and directions as the Certificateholder may
provide.
On
each
Distribution Date the Securities Administrator shall provide Bloomberg Financial
Markets, L.P. (“Bloomberg”) CUSIP level factors for each Class of Certificates
as of such Distribution Date, using a format and media mutually acceptable
to
the Securities Administrator and Bloomberg.
SECTION
5.03. Servicer
Reports; P&I Advances.
(a) On
or
before 12:00 noon New York time on the 18th
calendar
day of each month, and if the calendar day is not a Business Day, the
immediately following Business Day, each Servicer shall, deliver to the Master
Servicer and the Securities Administrator by telecopy or electronic mail (or
by
such other means as the related Servicer, the Master Servicer and the Securities
Administrator may agree from time to time) a remittance report containing such
information with respect to the related Mortgage Loans and the related
Distribution Date as is reasonably available to the related Servicer as the
Master Servicer or the Securities Administrator may reasonably require so as
to
enable the Master Servicer to master service the related Mortgage Loans and
oversee the servicing by the related Servicer and the Securities Administrator
to fulfill its obligations hereunder with respect to securities and tax
reporting.
(b) The
amount of P&I Advances to be made by the related Servicer on any
Distribution Date shall equal, subject to Section 5.03(d), (i) the aggregate
amount of Monthly Payments (net of the related Servicing Fees), due during
the
related Due Period in respect of the Mortgage Loans serviced by such Servicer,
which Monthly Payments were delinquent as of the close of business on the
related Determination Date and (ii) with respect to each REO Property, which
was
acquired during or prior to the related Prepayment Period and as to which an
REO
Disposition did not occur during the related Prepayment Period, an amount equal
to the excess, if any, of the REO Imputed Interest on such REO Property for
the
most recently ended calendar month, over the net income from such REO Property
deposited in the related Collection Account pursuant to Section 3.21 of this
Agreement for distribution on such Distribution Date; provided, however, the
Servicers shall not be required to make P&I Advances with respect to Relief
Act Interest Shortfalls, or with respect to Prepayment Interest Shortfalls
in
excess of its obligations under Section 3.22. For purposes of the preceding
sentence, the Monthly Payment on each Balloon Mortgage Loan with a delinquent
Balloon Payment is equal to the assumed monthly payment that would have been
due
on the related Due Date based on the original principal amortization schedule
for such Balloon Mortgage Loan.
By
12:00
noon New York time, on the Servicer Remittance Date, each Servicer shall remit
in immediately available funds to the Securities Administrator for deposit
in
the Distribution Account an amount equal to the aggregate amount of P&I
Advances, if any, to be made in respect of the related Mortgage Loans for the
related Distribution Date either (i) from its own funds or (ii) from the related
Collection Account, to the extent of any Amounts Held For Future Distribution
on
deposit therein (in which case it will cause to be made an appropriate entry
in
the records of the related Collection Account that Amounts Held For Future
Distribution have been, as permitted by this Section 5.03, used by the related
Servicer in discharge of any such P&I Advance) or (iii) in the form of any
combination of (i) and (ii) aggregating the total amount of P&I Advances to
be made by the related Servicer with respect to the related Mortgage Loans.
In
addition, the related Servicer shall have the right to reimburse itself for
any
outstanding P&I Advance made from its own funds from Amounts Held for Future
Distribution. Any Amounts Held For Future Distribution used by the related
Servicer to make P&I Advances or to reimburse itself for outstanding P&I
Advances shall be appropriately reflected in the related Servicer’s records and
replaced by the related Servicer by deposit in the related Collection Account
no
later than the close of business on the Servicer Remittance Date immediately
following the Due Period or Prepayment Period for which such amounts relate.
The
Securities Administrator will notify the related Servicer and the Master
Servicer by the close of business on the Business Day prior to the Distribution
Date in the event that the amount remitted by the related Servicer to the
Securities Administrator on such date is less than the P&I Advances required
to be made by the related Servicer for the related Distribution
Date.
(c) The
obligation of each Servicer to make such P&I Advances is mandatory,
notwithstanding any other provision of this Agreement but subject to (d) below,
and, with respect to any related Mortgage Loan or REO Property, shall continue
until a Final Recovery Determination in connection therewith or the removal
thereof from the Trust Fund pursuant to any applicable provision of this
Agreement, except as otherwise provided in this Section.
(d) Notwithstanding
anything herein to the contrary, no P&I Advance or Servicing Advance shall
be required to be made hereunder by the related Servicer if such P&I Advance
or Servicing Advance would, if made, constitute a Nonrecoverable P&I Advance
or Nonrecoverable Servicing Advance, respectively. In addition, the Servicers
shall not be required to make a P&I Advance with respect to any Mortgage
Loan that is 120 days delinquent. The determination by the related Servicer
that
it has made a Nonrecoverable P&I Advance or a Nonrecoverable Servicing
Advance or that any proposed P&I Advance or Servicing Advance, if made,
would constitute a Nonrecoverable P&I Advance or Nonrecoverable Servicing
Advance, respectively, shall be evidenced by a certification of a Servicing
Officer delivered to the Master Servicer.
(e) Subject
to and in accordance with the provisions of Article VIII, in the event a
Servicer fails to make any required P&I Advance, then the Master Servicer
(in its capacity as successor servicer) or any other successor Servicer shall
be
required to make such P&I Advance on the Distribution Date on which such
Servicer was required to make such Advance, subject to its determination of
recoverability.
SECTION
5.04. Allocation
of Realized Losses.
(a) Prior
to
the Determination Date, each Servicer shall determine as to each Mortgage Loan
serviced by such Servicer and any related REO Property and include in the
monthly remittance report provided to the Master Servicer and the Securities
Administrator (substantially in the form of Schedule 4 hereto) such information
as is reasonably available to the Servicers as the Master Servicer or the
Securities Administrator may reasonably require so as to enable the Master
Servicer to master service the Mortgage Loans and oversee the servicing by
the
Servicers and the Securities Administrator to fulfill its obligations hereunder
with respect to securities and tax reporting, which shall include, but not
be
limited to: (i) the total amount of Realized Losses, if any, incurred in
connection with any Final Recovery Determinations made during the related
Prepayment Period; and (ii) the respective portions of such Realized Losses
allocable to interest and allocable to principal. Prior to each Determination
Date, each Servicer shall also determine as to each Mortgage Loan: (i) the
total
amount of Realized Losses, if any, incurred in connection with any Deficient
Valuations made during the related Prepayment Period; and (ii) the total amount
of Realized Losses, if any, incurred in connection with Debt Service Reductions
in respect of Monthly Payments due during the related Due Period.
(b) All
Realized Losses on the Mortgage Loans allocated to any REMIC I Regular Interest
pursuant to Section 5.04(c) on the Mortgage Loans shall be allocated by the
Securities Administrator on each Distribution Date as follows: first,
to Net
Monthly Excess Cashflow, second,
to the
Class CE-1 Certificates, third,
to the
Class B-1 Certificates until the Certificate Principal Balance of the Class
B-1
Certificates has been reduced to zero, fourth,
to the
Class M-9 Certificates until the Certificate Principal Balance of the Class
M-9
Certificates has been reduced to zero, fifth,
to the
Class M-8 Certificates until the Certificate Principal Balance of the Class
M-8
Certificates has been reduced to zero; sixth,
to the
Class M-7 Certificates until the Certificate Principal Balance of the Class
M-7
Certificates has been reduced to zero, seventh,
to the
Class M-6 Certificates until the Certificate Principal Balance of the Class
M-6
Certificates has been reduced to zero, eighth,
to the
Class M-5 Certificates until the Certificate Principal Balance of the Class
M-5
Certificates has been reduced to zero, ninth,
to the
Class M-4 Certificates until the Certificate Principal Balance of the Class
M-4
Certificates has been reduced to zero, tenth,
to the
Class M-3 Certificates until the Certificate Principal Balance of the Class
M-3
Certificates has been reduced to zero, eleventh,
to the
Class M-2 Certificates until the Certificate Principal Balance of the Class
M-2
Certificates has been reduced to zero and twelfth,
to the
Class M-1A Certificates and Class M-1B Certificates, on a pro
rata
basis
based on the Certificate Principal Balance of each such Class until the
Certificate Principal Balance of each such class has been reduced to zero.
All
Realized Losses to be allocated to the Certificate Principal Balances of all
Classes on any Distribution Date shall be so allocated after the actual
distributions to be made on such date as provided above. All references above
to
the Certificate Principal Balance of any Class of Certificates shall be to
the
Certificate Principal Balance of such Class immediately prior to the relevant
Distribution Date, before reduction thereof by any Realized Losses, in each
case
to be allocated to such Class of Certificates, on such Distribution Date.
Any
allocation of Realized Losses to a Mezzanine Certificate or Class B-1
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 CE-1 Certificates shall be made by reducing the amount
otherwise payable in respect thereof pursuant to Section 5.01(a)(6). No
allocations of any Realized Losses shall be made to the Certificate Principal
Balances of the Class A Certificates or Class P Certificates.
As
used
herein, an allocation of a Realized Loss on a “pro
rata
basis”
among two or more specified Classes of Certificates means an allocation on
a
pro
rata
basis,
among the various Classes so specified, to each such Class of Certificates
on
the basis of their then outstanding Certificate Principal Balances prior to
giving effect to distributions to be made on such Distribution Date. All
Realized Losses and all other losses allocated to a Class of Certificates
hereunder will be allocated among the, Certificates of such Class in proportion
to the Percentage Interests evidenced thereby.
In
addition, in the event that a Servicer receives any Subsequent Recoveries with
respect to a Mortgage Loan serviced by it, the related Servicer shall deposit
such funds into the related Collection Account pursuant to Section 3.08.
If, after taking into account such Subsequent Recoveries, the amount of a
Realized Loss is reduced, the amount of such Subsequent Recoveries will be
applied to increase the Certificate Principal Balance of the Class of
Subordinate Certificates with the highest payment priority to which Realized
Losses have been allocated, but not by more than the amount of Realized Losses
previously allocated to that Class of Subordinate Certificates pursuant to
this
Section 5.04 and not previously reimbursed to such Class of Subordinate
Certificates with Net Monthly Excess Cashflow pursuant to
Section 5.01(a)(5). The amount of any remaining Subsequent Recoveries will
be applied to sequentially increase the Certificate Principal Balance of the
Subordinate Certificates, beginning with the Class of Subordinate Certificates
with the next highest payment priority, up to the amount of such Realized Losses
previously allocated to such Class of Subordinate Certificates pursuant to
this
Section 5.04 and not previously reimbursed to such Class of Subordinate
Certificates with Net Monthly Excess Cashflow pursuant to
Section 5.01(a)(5). Holders of such Certificates will not be entitled to
any payment in respect of current interest on the amount of such increases
for
any Interest Accrual Period preceding the Distribution Date on which such
increase occurs. Any such increases shall be applied to the Certificate
Principal Balance of each Subordinate Certificate of such Class in accordance
with its respective Percentage Interest.
(c) (i)
All
Realized Losses on the Mortgage Loans shall be allocated on each Distribution
Date, first to REMIC I Regular Interest A-I and, second, to REMIC I Regular
Interest I-1-A through REMIC I Regular Interest I-63-B, starting with the lowest
numerical denomination until such REMIC I Regular Interest has been reduced
to
zero, provided that, for REMIC I Regular Interests with the same numerical
denomination, such Realized Losses shall be allocated pro
rata
between
such REMIC I Regular Interests.
(ii) All
Realized Losses on the Mortgage Loans shall be allocated by the Trustee, based
solely on the instructions of the Securities Administrator, on each Distribution
Date to the following REMIC II Regular Interests in the specified percentages,
as follows: first, to Uncertificated Interest payable to the REMIC II Regular
Interest AA and REMIC II Regular Interest ZZ up to an aggregate amount equal
to
the REMIC II Interest Loss Allocation Amount, 98.00% and 2.00%, respectively;
second, to the Uncertificated Balances of the REMIC II Regular Interest AA
and
REMIC II Regular Interest ZZ up to an aggregate amount equal to the REMIC II
Principal Loss Allocation Amount, 98.00% and 2.00%, respectively; third, to
the
Uncertificated Balances of REMIC II Regular Interest AA, REMIC II Regular
Interest B-1 and REMIC II Regular Interest ZZ, 98.00%, 1.00% and 1.00%,
respectively, until the Uncertificated Balance of REMIC II Regular Interest
B-1
has been reduced to zero; fourth, to the Uncertificated Balances of REMIC II
Regular Interest AA, REMIC II Regular Interest M-9 and REMIC II Regular Interest
ZZ, 98.00%, 1.00% and 1.00%, respectively, until the Uncertificated Balance
of
REMIC II Regular Interest M-9 has been reduced to zero; fifth, to the
Uncertificated Balances of REMIC II Regular Interest AA, REMIC II Regular
Interest M-8 and REMIC II Regular Interest ZZ, 98.00%, 1.00% and 1.00%,
respectively, until the Uncertificated Balance of REMIC II Regular Interest
M-8
has been reduced to zero; sixth, to the Uncertificated Balances of REMIC II
Regular Interest AA, REMIC II Regular Interest M-7 and REMIC II Regular Interest
ZZ, 98.00%, 1.00% and 1.00%, respectively, until the Uncertificated Balance
of
REMIC II Regular Interest M-7 has been reduced to zero; seventh, to the
Uncertificated Balances of REMIC II Regular Interest AA, REMIC II Regular
Interest M-6 and REMIC II Regular Interest ZZ, 98.00%, 1.00% and 1.00%,
respectively, until the Uncertificated Balance of REMIC II Regular Interest
M-6
has been reduced to zero; eighth, to the Uncertificated Balances of REMIC II
Regular Interest AA, REMIC II Regular Interest M-5 and REMIC II Regular Interest
ZZ, 98.00%, 1.00% and 1.00%, respectively, until the Uncertificated Balance
of
REMIC II Regular Interest M-5 has been reduced to zero; ninth, to the
Uncertificated Balances of REMIC II Regular Interest AA, REMIC II Regular
Interest M-4 and REMIC II Regular Interest ZZ, 98.00%, 1.00% and 1.00%,
respectively, until the Uncertificated Balance of REMIC II Regular Interest
M-4
has been reduced to zero; tenth, to the Uncertificated Balances of REMIC II
Regular Interest AA, REMIC II Regular Interest M-3 and REMIC II Regular Interest
ZZ, 98.00%, 1.00% and 1.00%, respectively, until the Uncertificated Balance
of
REMIC II Regular Interest M-3 has been reduced to zero; eleventh, to the
Uncertificated Balances of REMIC II Regular Interest AA, REMIC II Regular
Interest M-2 and REMIC II Regular Interest ZZ, 98.00%, 1.00% and 1.00%,
respectively, until the Uncertificated Balance of REMIC II Regular Interest
M-2
has been reduced to zero; and twelfth, to the Uncertificated Balances of REMIC
II Regular Interest AA, 98.00% REMIC II Regular Interest M-1A and REMIC II
Regular Interest M-1B, 1% and REMIC II Regular Interest ZZ 1.00%, until the
Uncertificated Balances of REMIC II Regular Interest M-1A and REMIC II Regular
Interest M-1B have been reduced to zero.
SECTION
5.05. Compliance
with Withholding Requirements.
Notwithstanding
any other provision of this Agreement, the Trustee and the Securities
Administrator shall comply with all federal withholding requirements respecting
payments to Certificateholders of interest or original issue discount that
the
Trustee reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for such withholding. In the event
the
Securities Administrator does withhold any amount from interest or original
issue discount payments or advances thereof to any Certificateholder pursuant
to
federal withholding requirements, the Securities Administrator shall indicate
the amount withheld to such Certificateholders.
SECTION
5.06. Reports
Filed with Securities and Exchange Commission.
(a) (i) Within
15
days after each Distribution Date (subject to permitted extensions under the
Exchange Act), the Securities Administrator shall prepare and file on behalf
of
the Trust any Form 10-D required by the Exchange Act, in form and substance
as
required by the Exchange Act. The Securities Administrator shall file each
Form
10-D with a copy of the related Monthly Statement attached thereto. Any
disclosure in addition to the Monthly Statement that is required to be included
on Form 10-D (“Additional Form 10-D Disclosure”) shall be determined and
prepared by and at the direction of the Depositor pursuant to the following
paragraph and the Securities Administrator will have no duty or liability for
any failure hereunder to determine or prepare any Additional Form 10-D
Disclosure, except as set forth in the next paragraph.
(ii) As
set
forth on Exhibit
G
hereto,
within 5 calendar days after the related Distribution Date, (A) certain parties
to the ACE Securities Corp., Home Equity Loan Trust, Series 2006-SL1 transaction
shall be required to provide to the Securities Administrator and the Depositor,
to the extent known by a responsible officer thereof, in ▇▇▇▇▇-compatible form,
or in such other form as otherwise agreed upon by the Securities Administrator
and such party, the form and substance of any Additional Form 10-D Disclosure,
if applicable, together with an Additional Disclosure Notification in the form
of Exhibit H hereto (an “Additional Disclosure Notification”) and (B) the
Depositor will approve, as to form and substance, or disapprove, as the case
may
be, the inclusion of the Additional Form 10-D Disclosure on Form 10-D. The
Depositor will be responsible for any reasonable fees and expenses assessed
or
incurred by the Securities Administrator in connection with including any
Additional Form 10-D Disclosure on Form 10-D pursuant to this paragraph.
(iii) After
preparing the Form 10-D, the Securities Administrator shall forward
electronically a draft copy of the Form 10-D to the Depositor (provided that
such Form 10-D includes any Additional Form 10-D Disclosure) and the Master
Servicer for review. No later than the Business Day prior to the date specified
in the next sentence, the Depositor and the Master Servicer shall notify the
Securities Administrator of any changes to or approval of such Form 10-D. No
later than 2 Business Days prior to the 15th
calendar
day after the related Distribution Date, an officer of the Master Servicer
shall
sign the Form 10-D and return an electronic or fax copy of such signed Form
10-D
(with an original executed hard copy to follow by overnight mail) to the
Securities Administrator. If a Form 10-D cannot be filed on time or if a
previously filed Form 10-D needs to be amended, the Securities Administrator
will follow the procedures set forth in Section 5.06(c)(ii). Promptly (but
no
later than 1 Business Day) after filing with the Commission, the Securities
Administrator will make available on its internet website a final executed
copy
of each Form 10-D. Each party to this Agreement acknowledges that the
performance by the Securities Administrator and the Master Servicer of their
duties under this Section 5.06(a) related to the timely preparation, execution
and filing of Form 10-D is contingent upon such parties strictly observing
all
applicable deadlines in the performance of their duties as set forth in this
Agreement. Neither the Securities Administrator nor the Master Servicer shall
have any liability for any loss, expense, damage, claim arising out of or with
respect to any failure to properly prepare, execute and/or timely file such
Form
10-D, where such failure results from the Securities Administrator’s inability
or failure to receive, on a timely basis, any information from any other party
hereto needed to prepare, arrange for execution or file such Form 10-D, not
resulting from its own negligence, bad faith or willful misconduct.
(b) (i) Within
four (4) Business Days after the occurrence of an event requiring disclosure
on
Form 8-K (each such event, a “Reportable
Event”),
and
if requested by the Depositor, the Securities Administrator shall prepare and
file on behalf of the Trust a Form 8-K, as required by the Exchange Act,
provided
that the
Depositor shall file the initial Form 8-K in connection with the issuance of
the
Certificates. Any disclosure or information related to a Reportable Event or
that is otherwise required to be included on Form 8-K (“Form
8-K Disclosure Information”)
shall
be determined and prepared by and at the direction of the Depositor pursuant
to
the following paragraph and the Securities Administrator will have no duty
or
liability for any failure hereunder to determine or prepare any Form 8-K
Disclosure Information or any Form 8-K, except as set forth in the next
paragraph.
(ii) As
set
forth on Exhibit
G
hereto,
for so long as the Trust is subject to the Exchange Act reporting requirements,
no later than 12:00 noon New York time on the 2nd Business Day after the
occurrence of a Reportable Event (i) the parties to the ACE Securities Corp.,
Home Equity Loan Trust, Series 2006-SL1 transaction shall be required to provide
to the Securities Administrator and the Depositor, to the extent known by a
responsible officer thereof, in ▇▇▇▇▇-compatible form, or in such other form
as
otherwise agreed upon by the Securities Administrator and such party, the form
and substance of any Form 8-K Disclosure Information, if applicable, together
with an Additional Disclosure Notification, and (ii) the Depositor will approve,
as to form and substance, or disapprove, as the case may be, the inclusion
of
the Form 8-K Disclosure Information. The Depositor will be responsible for
any
reasonable fees and expenses assessed or incurred by the Securities
Administrator in connection with including any Form 8-K Disclosure Information
on Form 8-K pursuant to this paragraph.
(iii) After
preparing the Form 8-K, the Securities Administrator shall forward
electronically a draft copy of the Form 8-K to the Master Servicer and the
Depositor for review. No later than the Business Day prior to the date specified
in the next sentence, the Depositor and the Master Servicer shall notify the
Securities Administrator of any changes to or approval of such Form 8-K. No
later than 12:00 noon New York time on the 4th
Business
Day after the Reportable Event, an officer of the Master Servicer shall sign
the
Form 8-K and return an electronic or fax copy of such signed Form 8-K (with
an
original executed hard copy to follow by overnight mail) to the Securities
Administrator. If a Form 8-K cannot be filed on time or if a previously filed
Form 8-K needs to be amended, the Securities Administrator will follow the
procedures set forth in Section 5.06(c)(ii). Promptly (but no later than 1
Business Day) after filing with the Commission, the Securities Administrator
will, make available on its internet website a final executed copy of each
Form
8-K that has been prepared and filed by the Securities Administrator. The
parties to this Agreement acknowledge that the performance by the Master
Servicer and the Securities Administrator of their duties under this Section
5.06(b) related to the timely preparation, execution and filing of Form 8-K
is
contingent upon such parties strictly observing all applicable deadlines in
the
performance of their duties under this Agreement. Neither the Master Servicer
nor the Securities Administrator shall have any liability for any loss, expense,
damage, claim arising out of or with respect to any failure to properly prepare,
execute and/or timely file such Form 8-K, where such failure results from the
Securities Administrator’s inability or failure to receive, on a timely basis,
any information from any other party hereto needed to prepare, arrange for
execution or file such Form 8-K, not resulting from its own negligence, bad
faith or willful misconduct.
(c) (i) On
or
prior to January 30 of the first year in which the Securities Administrator
is
able to do so under applicable law, the Securities Administrator shall prepare
and file a Form 15 relating to the automatic suspension of reporting in respect
of the Trust under the Exchange Act.
(ii) In
the
event that the Securities Administrator is unable to timely file with the
Commission all or any required portion of any Form 8-K, 10-D or 10-K required
to
be filed by this Agreement because required disclosure information was either
not delivered to it or delivered to it after the delivery deadlines set forth
in
this Agreement or for any other reason, the Securities Administrator will
promptly notify the Depositor. In the case of Form 10-D and 10-K, the parties
to
this Agreement will cooperate to prepare and file a Form 12b-25 and a 10-DA
and
10-KA, as applicable, pursuant to Rule 12b-25 of the Exchange Act. In the case
of Form 8-K, the Securities Administrator will, upon receipt of all required
Form 8-K Disclosure Information and upon the approval and direction of the
Depositor, include such disclosure information on the next Form 10-D. In the
event that any previously filed Form 8-K, 10-D or 10-K needs to be amended
and
such amendment includes any Additional Form 10-D Disclosure, any Additional
Form
10-K Disclosure or any Form 8-K Disclosure Information or any amendment to
such
disclosure, the Securities Administrator will notify the Depositor if the
amendment pertains to an additional reporting item on such form and the
Depositor will cooperate with the Securities Administrator in preparing any
necessary 8-KA, 10-DA or 10-KA. Any Form 15, Form 12b-25 or any amendment to
Form 8-K, 10-D or 10-K shall be signed by an officer of the Master Servicer
in
charge of the master servicing function. The parties to this Agreement
acknowledge that the performance by the Securities Administrator and the Master
Servicer of their duties under this Section 5.06(c) related to the timely
preparation, execution and filing of Form 15, a Form 12b-25 or any amendment
to
Form 8-K, 10-D or 10-K is contingent upon each such party performing its duties
under this Agreement. Neither the Master Servicer nor the Securities
Administrator shall have any liability for any loss, expense, damage, claim
arising out of or with respect to any failure to properly prepare, execute
and/or timely file any such Form 15, Form 12b-25 or any amendments to Forms
8-K,
10-D or 10-K, where such failure results from the Securities Administrator’s
inability or failure to receive, on a timely basis, any information from any
other party hereto needed to prepare, execute or arrange for execution or file
such Form 15, Form 12b-25 or any amendments to Forms 8-K, 10-D or 10-K, not
resulting from its own negligence, bad faith or willful misconduct.
(d) (i) Within
90
days (including the 90th
day)
after the end of each fiscal year of the Trust or such earlier date as may
be
required by the Exchange Act (the “10-K
Filing Deadline”)
(it
being understood that the fiscal year for the Trust ends on December
31st
of each
year), commencing in March 2007, the Securities Administrator shall prepare
and
file on behalf of the Trust a Form 10-K, in form and substance as required
by
the Exchange Act. Each such Form 10-K shall include the following items, in
each
case to the extent they have been delivered to the Securities Administrator
within the applicable time frames set forth in this Agreement, (i) an annual
compliance statement for each Servicer, each Additional Servicer, the Master
Servicer, the Securities Administrator and any Servicing Function Participant
(other than any Subcontractors) engaged by such parties (each, a “Reporting
Servicer”)
as
described under Section 3.17 and Section 4.15, (ii)(A) the annual reports on
assessment of compliance with servicing criteria for each Reporting Servicer,
as
described under Section 3.18 and Section 4.16, and (B) if each Reporting
Servicer’s report on assessment of compliance with servicing criteria described
under Section 3.18 and Section 4.16 identifies any material instance of
noncompliance, disclosure identifying such instance of noncompliance, or if
each
Reporting Servicer’s report on assessment of compliance with servicing criteria
described under Section 3.18 and Section 4.16 is not included as an exhibit
to
such Form 10-K, disclosure that such report is not included and an explanation
why such report is not included, (iii)(A) the registered public accounting
firm
attestation report for each Reporting Servicer, as described under Section
3.18
and Section 4.17, and (B) if any registered public accounting firm attestation
report described under Section 3.18 and Section 4.17 identifies any material
instance of noncompliance, disclosure identifying such instance of
noncompliance, or if any such registered public accounting firm attestation
report is not included as an exhibit to such Form 10-K, disclosure that such
report is not included and an explanation why such report is not included,
and
(iv) a ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification (“▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification”) as
described in Section 3.19 and Section 4.18. Any disclosure or information in
addition to (i) through (iv) above that is required to be included on Form
10-K
(“Additional
Form 10-K Disclosure”)
shall
be determined and prepared by and at the direction of the Depositor pursuant
to
the following paragraph and the Securities Administrator will have no duty
or
liability for any failure hereunder to determine or prepare any Additional
Form
10-K Disclosure, except as set forth in the next paragraph.
(ii) As
set
forth on Exhibit
G
hereto,
no later than March 15 of each year that the Trust is subject to the Exchange
Act reporting requirements, commencing in 2007, (i) the parties to the ACE
Securities Corp., Home Equity Loan Trust, Series 2006-SL1 transaction shall
be
required to provide to the Securities Administrator and the Depositor, to the
extent known by a responsible officer thereof, in ▇▇▇▇▇-compatible form, or
in
such other form as otherwise agreed upon by the Securities Administrator and
such party, the form and substance of any Additional Form 10-K Disclosure,
if
applicable, together with an Additional Disclosure Notification,
and (ii)
the Depositor will approve, as to form and substance, or disapprove, as the
case
may be, the inclusion of the Additional Form 10-K Disclosure on Form 10-K.
The
Depositor will be responsible for any reasonable fees and expenses assessed
or
incurred by the Securities Administrator in connection with including any
Additional Form 10-K Disclosure on Form 10-K pursuant to this
paragraph.
(iii) After
preparing the Form 10-K, the Securities Administrator shall forward
electronically a draft copy of the Form 10-K to the Master Servicer. If the
Form
10-K contains additional reporting items, the Form 10-K will be sent to the
Depositor for review and approval prior to execution by the Master Servicer.
No
later than the Business Day prior to the date specified in the next sentence,
the Depositor and the Master Servicer shall notify the Securities Administrator
of any changes to or approval of such Form 10-K. No later than 12:00 noon New
York time on the 4th
Business
Day prior to the 10-K Filing deadline, a senior officer of the Master Servicer
in charge of the master servicing function shall sign the Form 10-K and return
an electronic or fax copy of such signed Form 10-K (with an original executed
hard copy to follow by overnight mail) to the Securities Administrator. If
a
Form 10-K cannot be filed on time or if a previously filed Form 10-K needs
to be
amended, the Securities Administrator will follow the procedures set forth
in
Section 5.06(c)(ii). Promptly (but no later than 1 Business Day) after filing
with the Commission, the Securities Administrator will make available on its
internet website a final executed copy of each Form 10-K. The parties to this
Agreement acknowledge that the performance by the Master Servicer and the
Securities Administrator of their respective duties under this Section 5.06(d)
related to the timely preparation, execution and filing of Form 10-K is
contingent upon such parties (and any Additional Servicer or Servicing Function
Participant (other than any Subcontractor)) strictly observing all applicable
deadlines in the performance of their duties under this Section 5.06(d), Section
3.17, Section 3.18, Section 3.19, Section 4.16, Section 4.17 and Section 4.18.
Neither the Master Servicer nor the Securities Administrator shall have any
liability for any loss, expense, damage or claim arising out of or with respect
to any failure to properly prepare, execute and/or timely file such Form 10-K,
where such failure results from the Securities Administrator’s inability or
failure to receive, on a timely basis, any information from any other party
hereto needed to prepare, arrange for execution or file such Form 10-K, not
resulting from its own negligence, bad faith or willful misconduct.
(e) The
Securities Administrator shall indemnify and hold harmless the Depositor, the
Trustee and their respective officers, directors and Affiliates from and against
any losses, damages, penalties, fines, forfeitures, reasonable and necessary
legal fees and related costs, judgments and other costs and expenses arising
out
of or based upon a breach of the Master Servicer’s obligations under this
Section 5.06 or the Master Servicer’s negligence, bad faith or willful
misconduct in connection therewith.
SECTION
5.07. Supplemental
Interest Trust.
(a) On
the
Closing Date, the Securities Administrator shall establish and maintain in
the
name of the Trustee a separate account for the benefit of the holders of the
Offered Certificates (the “Supplemental Interest Trust”). The Supplemental
Interest Trust shall be an Eligible Account, and funds on deposit therein shall
be held separate and apart from, and shall not be commingled with, any other
monies, including, without limitation, other monies of the Trustee or of the
Securities Administrator held pursuant to this Agreement.
(b) On
each
Distribution Date, the Securities Administrator shall withdraw all amounts
which
were deposited in the Supplemental Interest Trust as specifically described
in
this Agreement and the Swap Agreement and distribute such amounts in accordance
with the provisions of Section 5.01 of this Agreement. On each Distribution
Date, the Securities Administrator shall distribute any such amounts to the
Swap
Provider pursuant to the Swap Agreement, first to pay any Net Swap Payment
owed
to the Swap Provider for such Distribution Date, and second to pay any Swap
Termination Payment owed to the Swap Provider not due to a Swap Provider Trigger
Event.
(c) The
Supplemental Interest Trust constitutes an “outside reserve fund” within the
meaning of Treasury Regulation § 1.860G-2(h) and is not an asset of any REMIC.
The Holders of the Class CE-1 Certificates shall be the beneficial owner of
the
Supplemental Interest Trust, subject to the power of the Securities
Administrator to transfer amounts under this Agreement. The Securities
Administrator shall keep records that accurately reflect the funds on deposit
in
the Supplemental Interest Trust. The Securities Administrator shall, at the
written direction of the majority of the Class CE-1 Certificateholders, invest
amounts on deposit in the Supplemental Interest Trust in Permitted Investments.
In the absence of written direction to the Securities Administrator from the
majority of the Class CE-1 Certificateholders, all funds in the Supplemental
Interest Trust shall remain uninvested. On each Distribution Date, the
Securities Administrator shall distribute, not in respect of any REMIC, any
interest earned on the Supplemental Interest Trust to the Holders of the Class
CE-1Certificates.
(d) For
federal income tax purposes, amounts paid to the Supplemental Interest Trust
on
each Distribution Date pursuant to Section 5.01(a)(3), (4) and (5) shall
first be deemed paid to the Supplemental Interest Trust in respect of the Class
IO Interest to the extent of the amount distributable on such Class IO Interest
on such Distribution Date, and any remaining amount shall be deemed paid to
the
Supplemental Interest Trust in respect of a Class IO Distribution Amount. For
federal income tax purposes, the Supplemental Interest Trust will be a
disregarded entity.
(e) The
Securities Administrator shall treat the Holders of Certificates (other than
the
Class P, Class CE-1, Class CE-2 and Residual Certificates) as having entered
into a notional principal contract with respect to the Holders of the Class
CE-1
Certificates. Pursuant to each such notional principal contract, all Holders
of
Certificates (other than the Class P, Class CE-1, Class CE-2 and Residual
Certificates) shall be treated as having agreed to pay, on each Distribution
Date, to the Holder of the Class CE-1 Certificates an aggregate amount equal
to
the excess, if any, of (i) the amount payable on such Distribution Date on
the
Regular Interest ownership of which is represented by such Class of Certificates
over (ii) the amount payable on such Class of Certificates on such Distribution
Date (such excess, a “Class IO Distribution Amount”). A Class IO Distribution
Amount payable from interest collections shall be allocated pro rata among
such
Certificates based on the amount of interest otherwise payable to such
Certificates, and a Class IO Distribution Amount payable from principal
collections shall be allocated to the most subordinate Class of such
Certificates with an outstanding principal balance to the extent of such
balance. In addition, pursuant to such notional principal contract, the Holder
of the Class CE-1 Certificates shall be treated as having agreed to pay Net
WAC
Rate Carryover Amounts to the Holders of the Certificates (other than the Class
CE-1, Class CE-2, Class P and Residual Certificates) in accordance with the
terms of this Agreement. Any payments to such Certificates from amounts deemed
received in respect of this notional principal contract shall not be payments
with respect to a Regular Interest in a REMIC within the meaning of Code Section
860G(a)(1). However, any payment from the Certificates (other than the Class
CE-1, Class CE-2, Class P and Residual Certificates) of a Class IO Distribution
Amount shall be treated for tax purposes as having been received by the Holders
of such Certificates in respect of the Regular Interest ownership of which
is
represented by such Certificates, and as having been paid by such Holders to
the
Supplemental Interest Trust pursuant to the notional principal contract. Thus,
each Certificate (other than the Class P Certificates and Residual Certificates)
shall be treated as representing not only ownership of a Regular Interest in
REMIC III, but also ownership of an interest in, and obligations with respect
to, a notional principal contract.
(f) For
federal tax return and information reporting, the right of the holders of the
Offered Certificates to receive payments from the Supplemental Interest Trust
shall be assigned a value of $10,000.
(g) In
the
event that the Swap Agreement is terminated prior to the Distribution Date
in
April 2011, the Sponsor shall use reasonable efforts to appoint a successor
swap
provider using any Swap Termination Payments paid by the Swap Provider. If
the
Sponsor is unable to locate a qualified successor swap provider, any such Swap
Termination Payments will be remitted to the Securities Administrator for
payment to the holders of the Offered Certificates in accordance with Section
5.01.
SECTION
5.08. Tax
Treatment of Swap Payments and Swap Termination Payments.
For
federal income tax purposes, each holder of an Offered Certificate is deemed
to
own an undivided beneficial ownership interest in a REMIC regular interest
and
the right to receive payments from either the Reserve Fund or the Supplemental
Interest Trust in respect of any Net WAC Rate Carryover Amounts or the
obligation to make payments to the Supplemental Interest Trust. For federal
income tax purposes, the Securities Administrator will account for payments
to
each Offered Certificate and Class B-1 Certificate as follows: each Offered
Certificate and Class B-1 Certificate will be treated as receiving their entire
payment from REMIC III (regardless of any Swap Termination Payment or obligation
under the Swap Agreement) and subsequently paying their portion of any Swap
Termination Payment in respect of each such Class’s obligation under the Swap
Agreement. In the event that any such Class is resecuritized in a REMIC, the
obligation under the Swap Agreement to pay any such Swap Termination Payment
(or
any shortfall in Net Swap Payment), will be made by one or more of the REMIC
Regular Interests issued by the resecuritization REMIC subsequent to such REMIC
Regular Interest receiving its full payment from any such Offered Certificate
or
Class B-1 Certificate. Resecuritization of any Offered Certificate or Class
B-1
Certificate in a REMIC will be permissible only if the Securities Administrator
hereunder is the trustee/securities administrator in such
resecuritization.
The
REMIC
Regular Interest corresponding to an Offered Certificate or Class B-1
Certificate will be entitled to receive interest and principal payments at
the
times and in the amounts equal to those made on the certificate to which it
corresponds, except that (i) the maximum interest rate of that REMIC regular
interest will equal the Net WAC Pass-Through Rate computed for this purpose
by
limiting the Swap Notional Amount of the Swap Agreement to the aggregate Stated
Principal Balance of the Mortgage Loans and (ii) any Swap Termination Payment
will be treated as being payable solely from amounts otherwise payable to the
Class CE-1 Certificates. As a result of the foregoing, the amount of
distributions and taxable income on the REMIC Regular Interest corresponding
to
an Offered Certificate may exceed the actual amount of distributions on the
Offered Certificate.
ARTICLE
VI
THE
CERTIFICATES
SECTION
6.01. The
Certificates.
(a) The
Certificates in the aggregate will represent the entire beneficial ownership
interest in the Mortgage Loans and all other assets included in REMIC I, REMIC
II and REMIC III.
The
Certificates will be substantially in the forms annexed hereto as Exhibits
A-1
through A-6. The Certificates of each Class will be issuable in registered
form
only, in denominations of authorized Percentage Interests as described in the
definition thereof. Each Certificate will share ratably in all rights of the
related Class.
Upon
original issue, the Certificates shall be executed and authenticated by the
Securities Administrator and delivered by the Trustee to and upon the written
order of the Depositor. The Certificates shall be executed by manual or
facsimile signature on behalf of the Trust by the Securities Administrator
by an
authorized signatory. Certificates bearing the manual or facsimile signatures
of
individuals who were at any time the proper officers of the Securities
Administrator shall bind the Trust, notwithstanding that such individuals or
any
of them have ceased to hold such offices prior to the authentication and
delivery of such Certificates or did not hold such offices at the date of such
Certificates. No Certificate shall be entitled to any benefit under this
Agreement or be valid for any purpose, unless there appears on such Certificate
a certificate of authentication substantially in the form provided herein
executed by the Securities Administrator by manual signature, and such
certificate of authentication shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their
authentication.
(b) The
Class
A Certificates and the Mezzanine Certificates shall initially be issued as
one
or more Certificates held by the Book-Entry Custodian or, if appointed to hold
such Certificates as provided below, the Depository and registered in the name
of the Depository or its nominee and, except as provided below, registration
of
such Certificates may not be transferred by the Securities Administrator except
to another Depository that agrees to hold such Certificates for the respective
Certificate Owners with Ownership Interests therein. The Certificate Owners
shall hold their respective Ownership Interests in and to such Certificates
through the book-entry facilities of the Depository and, except as provided
below, shall not be entitled to definitive, fully registered Certificates
(“Definitive Certificates”) in respect of such Ownership Interests. All
transfers by Certificate Owners of their respective Ownership Interests in
the
Book-Entry Certificates shall be made in accordance with the procedures
established by the Depository Participant or brokerage firm representing such
Certificate Owner. Each Depository Participant shall only transfer the Ownership
Interests in the Book-Entry Certificates of Certificate Owners it represents
or
of brokerage firms for which it acts as agent in accordance with the
Depository’s normal procedures. The Securities Administrator is hereby initially
appointed as the Book-Entry Custodian and hereby agrees to act as such in
accordance herewith and in accordance with the agreement that it has with the
Depository authorizing it to act as such. The Book-Entry Custodian may, and,
if
it is no longer qualified to act as such, the Book-Entry Custodian shall,
appoint, by a written instrument delivered to the Depositor, the Servicers
and,
if the Trustee is not the Book-Entry Custodian, the Trustee, any other transfer
agent (including the Depository or any successor Depository) to act as
Book-Entry Custodian under such conditions as the predecessor Book-Entry
Custodian and the Depository or any successor Depository may prescribe, provided
that the predecessor Book-Entry Custodian shall not be relieved of any of its
duties or responsibilities by reason of any such appointment of other than
the
Depository. If the Securities Administrator resigns or is removed in accordance
with the terms hereof, the successor Securities Administrator or, if it so
elects, the Depository shall immediately succeed to its predecessor’s duties as
Book-Entry Custodian. The Depositor shall have the right to inspect, and to
obtain copies of, any Certificates held as Book-Entry Certificates by the
Book-Entry Custodian.
(c) The
Class
B-1, Class CE-1 and Class CE-2 Certificates initially offered and sold in
offshore transactions in reliance on Regulation S shall be issued in the form
of
a temporary global certificate in definitive, fully registered form (each,
a
“Regulation S Temporary Global Certificate”), which shall be deposited with the
Securities Administrator or an agent of the Securities Administrator as
custodian for the Depository and registered in the name of Cede & Co. as
nominee of the Depository for the account of designated agents holding on behalf
of Euroclear or Clearstream. Beneficial interests in each Regulation S Temporary
Global Certificate may be held only through Euroclear or Clearstream; provided,
however, that such interests may be exchanged for interests in a Definitive
Certificate in accordance with the requirements described in Section 6.02.
After the expiration of the Release Date, a beneficial interest in a Regulation
S Temporary Global Certificate may be exchanged for a beneficial interest in
the
related permanent global certificate of the same Class (each, a “Regulation S
Permanent Global Certificate”), in accordance with the procedures set forth in
Section 6.02. Each Regulation S Permanent Global Certificate shall be
deposited with the Securities Administrator or an agent of the Securities
Administrator as custodian for the Depository and registered in the name of
Cede
& Co. as nominee of the Depository.
The
Class
B-1 Certificates offered and sold to Qualified Institutional Buyers (“QIBs”) in
reliance on Rule 144A under the Securities Act (“Rule 144A”) or institutional
investors that are accredited investors within the meaning of Rule 501(a)(1),
(2), (3) or (7) of Regulation D under the Securities Act (“Institutional
Accredited Investors”) will be issued in the form of Book-Entry
Certificates.
(d) The
Class
CE-1 Certificates, Class CE-2 Certificates and Class P Certificates offered
and
sold to QIBs in reliance on Rule 144A will be issued in the form of Definitive
Certificates.
(e) The
Trustee, the Servicers, the Securities Administrator, the Master Servicer and
the Depositor may for all purposes (including the making of payments due on
the
Book-Entry Certificates and Global Certificates) deal with the Depository as
the
authorized representative of the Certificate Owners with respect to the
Book-Entry Certificates and Global Certificates for the purposes of exercising
the rights of Certificateholders hereunder. The rights of Certificate Owners
with respect to the Book-Entry Certificates and Global Certificates shall be
limited to those established by law and agreements between such Certificate
Owners and the Depository Participants and brokerage firms representing such
Certificate Owners. Multiple requests and directions from, and votes of, the
Depository as Holder of the Book-Entry Certificates and Global Certificates
with
respect to any particular matter shall not be deemed inconsistent if they are
made with respect to different Certificate Owners. The Securities Administrator
may establish a reasonable record date in connection with solicitations of
consents from or voting by Certificateholders and shall give notice to the
Depository of such record date.
If
(i)(A)
the Depositor advises the Securities Administrator in writing that the
Depository is no longer willing or able to properly discharge its
responsibilities as Depository, and (B) the Depositor is unable to locate a
qualified successor, (ii) the Depositor at its option advises the Securities
Administrator in writing that it elects to terminate the book-entry system
through the Depository or (iii) after the occurrence of a Servicer Event of
Default, Certificate Owners representing in the aggregate not less than 51%
of
the Ownership Interests of the Book-Entry Certificates advise the Securities
Administrator through the Depository, in writing, that the continuation of
a
book-entry system through the Depository is no longer in the best interests
of
the Certificate Owners, the Securities Administrator shall notify all
Certificate Owners, through the Depository, of the occurrence of any such event
and of the availability of Definitive Certificates to Certificate Owners
requesting the same. With respect to a Global Certificate, the related
Certificate Owner (other than a Holder of a Regulation S Temporary Global
Certificate) may request that its interest in a Global Certificate be exchanged
for a Definitive Certificate. Upon surrender to the Securities Administrator
of
the Book-Entry Certificates by the Book-Entry Custodian or the Depository,
as
applicable, or the Global Certificates by the Depository accompanied by
registration instructions from the Depository for registration of transfer,
the
Securities Administrator shall cause the Definitive Certificates to be issued.
Such Definitive Certificates will be issued in minimum denominations of $10,000
except that any beneficial ownership that was represented by a Book-Entry
Certificate, or a Global Certificate, as applicable in an amount less than
$10,000 immediately prior to the issuance of a Definitive Certificate shall
be
issued in a minimum denomination equal to the amount represented by such
Book-Entry Certificate or a Global Certificate, as applicable. None of the
Depositor, the Servicers, the Master Servicer, the Securities Administrator
or
the Trustee shall be liable for any delay in the delivery of such instructions
and may conclusively rely on, and shall be protected in relying on, such
instructions. Upon the issuance of Definitive Certificates all references herein
to obligations imposed upon or to be performed by the Depository shall be deemed
to be imposed upon and performed by the Securities Administrator, to the extent
applicable with respect to such Definitive Certificates, and the Securities
Administrator shall recognize the Holders of the Definitive Certificates as
Certificateholders hereunder.
SECTION
6.02. Registration
of Transfer and Exchange of Certificates.
(a) The
Securities Administrator shall cause to be kept at one of the offices or
agencies to be appointed by the Securities Administrator in accordance with
the
provisions of Section 9.11, a Certificate Register for the Certificates in
which, subject to such reasonable regulations as it may prescribe, the
Securities Administrator shall provide for the registration of Certificates
and
of transfers and exchanges of Certificates as herein provided.
(b) No
transfer of any Class B-1 Certificate, Class CE-1 Certificate, Class CE-2
Certificate, Class P Certificate or Residual Certificate shall be made unless
that transfer is made pursuant to an effective registration statement under
the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. In the event that such a transfer of a Class
B-1
Certificate, Class CE-1 Certificate, Class CE-2 Certificate, Class P Certificate
or Residual Certificate is to be made without registration or qualification
(other than in connection with the initial transfer of any such Certificate
by
the Depositor), the Securities Administrator shall require receipt of: (i)
if
such transfer is purportedly being made in reliance upon Rule 144A under the
Securities Act, written certifications from the Certificateholder desiring
to
effect the transfer and from such Certificateholder’s prospective transferee,
substantially in the form attached hereto as Exhibit B-1; (ii) if such transfer
is purportedly being made in reliance upon Rule 501(a) under the Securities
Act,
written certifications from the Certificateholder desiring to effect the
transfer and from such Certificateholder’s prospective transferee, substantially
in the form attached hereto as Exhibit B-2; (iii) if such transfer is
purportedly being made in reliance on Regulation S, a written certification
from
the prospective transferee, substantially in the form attached hereto as Exhibit
B-1 and (iv) in all other cases, an Opinion of Counsel satisfactory to the
Securities Administrator that such transfer may be made without such
registration or qualification (which Opinion of Counsel shall not be an expense
of the Trust Fund or of the Depositor, the Trustee, the Master Servicer, the
Securities Administrator or the Servicers), together with copies of the written
certification(s) of the Certificateholder desiring to effect the transfer and/or
such Certificateholder’s prospective transferee upon which such Opinion of
Counsel is based, if any. Neither of the Depositor nor the Securities
Administrator is obligated to register or qualify any such Certificates under
the Securities Act or any other securities laws or to take any action not
otherwise required under this Agreement to permit the transfer of such
Certificates without registration or qualification. Any Certificateholder
desiring to effect the transfer of any such Certificate shall, and does hereby
agree to, indemnify the Trustee, the Depositor, the Master Servicer, the
Securities Administrator and the Servicers against any liability that may result
if the transfer is not so exempt or is not made in accordance with such federal
and state laws.
A
holder
of a beneficial interest in a Regulation S Temporary Global Certificate must
provide Euroclear or Clearstream, as the case may be, with a certificate in
the
form of Annex A to Exhibit B-1 hereto certifying that the beneficial owner
of
the interest in such Global Certificate is not a U.S. Person (as defined in
Regulation S), and Euroclear or Clearstream, as the case may be, must provide
to
the Trustee and Securities Administrator a certificate in the form of Exhibit
B-1 hereto prior to (i) the payment of interest or principal with respect to
such holder’s beneficial interest in the Regulation S Temporary Global
Certificate and (ii) any exchange of such beneficial interest for a beneficial
interest in a Regulation S Permanent Global Certificate.
(c) No
transfer of a Class CE-1 Certificate, Class CE-2 Certificate, Class P
Certificate or a Residual Certificate or any interest therein shall be made
to
any Plan subject to ERISA or Section 4975 of the Code, any Person acting,
directly or indirectly, on behalf of any such Plan or any Person acquiring
such
Certificates with “Plan Assets” of a Plan within the meaning of the Department
of Labor regulation promulgated at 29 C.F.R. § 2510.3-101 (“Plan Assets”) unless
the Securities Administrator is provided with an Opinion of Counsel on which
the
Depositor, the Master Servicer, the Securities Administrator, the Trustee and
the Servicers may rely, which establishes to the satisfaction of the Securities
Administrator that the purchase of such Certificates is permissible under
applicable law, will not constitute or result in any prohibited transaction
under ERISA or Section 4975 of the Code and will not subject the Depositor,
the Servicers, the Trustee, the Master Servicer, the Securities Administrator
or
the Trust Fund to any obligation or liability (including obligations or
liabilities under ERISA or Section 4975 of the Code) in addition to those
undertaken in this Agreement, which Opinion of Counsel shall not be an expense
of the Depositor, the Servicers, the Trustee, the Master Servicer, the
Securities Administrator, the Trust Fund. An Opinion of Counsel will not be
required in connection with the initial transfer of any such Certificate by
the
Depositor to an affiliate of the Depositor (in which case, the Depositor or
any
affiliate thereof shall have deemed to have represented that such affiliate
is
not a Plan or a Person investing Plan Assets) and the Securities Administrator
shall be entitled to conclusively rely upon a representation (which, upon the
request of the Securities Administrator, shall be a written representation)
from
the Depositor of the status of such transferee as an affiliate of the
Depositor.
For
so
long as the Supplemental Interest Trust is in existence, each beneficial owner
of a Offered Certificate or any interest therein, shall be deemed to have
represented, by virtue of its acquisition or holding of the Offered Certificate,
or interest therein, that either (i) it is not a Plan or (ii)(A) it is an
accredited investor within the meaning of Prohibited Transaction Exemption
2002-41, as amended from time to time (the “Exemption”) and (B) the acquisition
and holding of such Certificate and the separate right to receive payments
from
the Supplemental Interest Trust are eligible for the exemptive relief available
under Prohibited Transaction Class Exemption (“PTCE”) 84-14 (for transactions by
independent “qualified professional asset managers”), 91-38 (for transactions by
bank collective investment funds), 90-1 (for transactions by insurance company
pooled separate accounts), 95-60 (for transactions by insurance company general
accounts) or 96-23 (for transactions effected by “in-house asset managers”) in
the case of a Mezzanine Certificate or PTCE 95-60 in the case of a Class B
Certificate.
Each
Transferee of a Mezzanine Certificate, a Class B Certificate or any interest
therein that is acquired after the termination of the Supplemental Interest
Trust will be deemed to have represented by virtue of its purchase or holding
of
such Certificate (or interest therein) that either (a) such Transferee is not
a
Plan or purchasing such Certificate with Plan Assets, (b) in the case of a
Mezzanine Certificate, it has acquired and is holding such Certificate in
reliance on Prohibited Transaction Exemption (“PTE”) 94-84 or FAN 97-03E, as
amended by PTE 97-34, 62 Fed. Reg. 39021 (July 21, 1997), PTE 2000-58, 65 Fed.
Reg. 67765 (November 13, 2000) and PTE 2002-41, 67 Fed. Reg. 54487 (August
22,
2002) (the “Exemption”), and that it understands that there are certain
conditions to the availability of the Exemption including that such Certificate
must be rated, at the time of purchase, not lower than “BBB-” (or its
equivalent) by a Rating Agency or (c) the following conditions are satisfied:
(i) such Transferee is an insurance company, (ii) the source of funds used
to
purchase or hold such Certificate (or interest therein) is an “insurance company
general account” (as defined in PTCE 95-60, and (iii) the conditions set forth
in Sections I and III of PTCE 95-60 have been satisfied.
If
any
Certificate or any interest therein is acquired or held in violation of the
conditions described in this Section 6.02(c), the next preceding permitted
beneficial owner will be treated as the beneficial owner of that Certificate,
retroactive to the date of transfer to the purported beneficial owner. Any
purported beneficial owner whose acquisition or holding of any certificate
or
interest therein was effected in violation of the conditions described in this
Section 6.02(c) shall indemnify and hold harmless the Depositor, the
Trustee, the Servicers, the Master Servicer, the Securities Administrator and
the Trust Fund from and against any and all liabilities, claims, costs or
expenses incurred by those parties as a result of that acquisition or
holding.
(d) vi)
Each
Person who has or who acquires any Ownership Interest in a Residual Certificate
shall be deemed by the acceptance or acquisition of such Ownership Interest
to
have agreed to be bound by the following provisions and to have irrevocably
authorized the Securities Administrator or its designee under clause (iii)(A)
below to deliver payments to a Person other than such Person and to negotiate
the terms of any mandatory sale under clause (iii)(B) below and to execute
all
instruments of Transfer and to do all other things necessary in connection
with
any such sale. The rights of each Person acquiring any Ownership Interest in
a
Residual Certificate are expressly subject to the following
provisions:
(A) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall be a Permitted Transferee and shall promptly notify the Securities
Administrator of any change or impending change in its status as a Permitted
Transferee.
(B) In
connection with any proposed Transfer of any Ownership Interest in a Residual
Certificate, the Securities Administrator shall require delivery to it, and
shall not register the Transfer of any Residual Certificate until its receipt
of, an affidavit and agreement (a “Transfer Affidavit and Agreement,” in the
form attached hereto as Exhibit B-3) from the proposed Transferee, in form
and
substance satisfactory to the Securities Administrator, representing and
warranting, among other things, that such Transferee is a Permitted Transferee,
that it is not acquiring its Ownership Interest in the Residual Certificate
that
is the subject of the proposed Transfer as a nominee, trustee or agent for
any
Person that is not a Permitted Transferee, that for so long as it retains its
Ownership Interest in a Residual Certificate, it will endeavor to remain a
Permitted Transferee, and that it has reviewed the provisions of this
Section 6.02(d) and agrees to be bound by them.
(C) Notwithstanding
the delivery of a Transfer Affidavit and Agreement by a proposed Transferee
under clause (B) above, if an authorized officer of the Securities Administrator
who is assigned to this transaction has actual knowledge that the proposed
Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest
in a Residual Certificate to such proposed Transferee shall be
effected.
(D) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall agree (x) to require a Transfer Affidavit and Agreement from any other
Person to whom such Person attempts to transfer its Ownership Interest in a
Residual Certificate and (y) not to transfer its Ownership Interest unless
it
provides a Transferor Affidavit (in the form attached hereto as Exhibit B-2)
to
the Securities Administrator stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee.
(E) Each
Person holding or acquiring an Ownership Interest in a Residual Certificate,
by
purchasing an Ownership Interest in such Certificate, agrees to give the
Securities Administrator written notice that it is a “pass-through interest
holder” within the meaning of temporary Treasury regulation
Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership
Interest in a Residual Certificate, if it is, or is holding an Ownership
Interest in a Residual Certificate on behalf of, a “pass-through interest
holder.”
(ii) The
Securities Administrator will register the Transfer of any Residual Certificate
only if it shall have received the Transfer Affidavit and Agreement and all
of
such other documents as shall have been reasonably required by the Securities
Administrator as a condition to such registration. In addition, no Transfer
of a
Residual Certificate shall be made unless the Securities Administrator shall
have received a representation letter from the Transferee of such Certificate
to
the effect that such Transferee is a Permitted Transferee.
(iii) (1)If
any
purported Transferee shall become a Holder of a Residual Certificate in
violation of the provisions of this Section 6.02(d), then the last
preceding Permitted Transferee shall be restored, to the extent permitted by
law, to all rights as holder thereof retroactive to the date of registration
of
such Transfer of such Residual Certificate. The Securities Administrator shall
be under no liability to any Person for any registration of Transfer of a
Residual Certificate that is in fact not permitted by this Section 6.02(d)
or for making any payments due on such Certificate to the holder thereof or
for
taking any other action with respect to such holder under the provisions of
this
Agreement.
(B) If
any
purported Transferee shall become a holder of a Residual Certificate in
violation of the restrictions in this Section 6.02(d) and to the extent
that the retroactive restoration of the rights of the holder of such Residual
Certificate as described in clause (iii)(A) above shall be invalid, illegal
or
unenforceable, then the Securities Administrator shall have the right, without
notice to the holder or any prior holder of such Residual Certificate, to sell
such Residual Certificate to a purchaser selected by the Securities
Administrator on such terms as the Securities Administrator may choose. Such
purported Transferee shall promptly endorse and deliver each Residual
Certificate in accordance with the instructions of the Securities Administrator.
Such purchaser may be the Securities Administrator itself or any Affiliate
of
the Securities Administrator. The proceeds of such sale, net of the commissions
(which may include commissions payable to the Securities Administrator or its
Affiliates), expenses and taxes due, if any, will be remitted by the Securities
Administrator to such purported Transferee. The terms and conditions of any
sale
under this clause (iii)(B) shall be determined in the sole discretion of the
Securities Administrator, and the Securities Administrator shall not be liable
to any Person having an Ownership Interest in a Residual Certificate as a result
of its exercise of such discretion.
(iv) The
Securities Administrator shall make available to the Internal Revenue Service
and those Persons specified by the REMIC Provisions all information necessary
to
compute any tax imposed (A) as a result of the Transfer of an Ownership Interest
in a Residual Certificate to any Person who is a Disqualified Organization,
including the information described in Treasury regulations sections
1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the “excess inclusions” of
such Residual Certificate and (B) as a result of any regulated investment
company, real estate investment trust, common trust fund, partnership, trust,
estate or organization described in Section 1381 of the Code that holds an
Ownership Interest in a Residual Certificate having as among its record holders
at any time any Person which is a Disqualified Organization. Reasonable
compensation for providing such information may be charged or collected by
the
Securities Administrator.
(v) The
provisions of this Section 6.02(d) set forth prior to this subsection (v)
may be modified, added to or eliminated, provided that there shall have been
delivered to the Securities Administrator at the expense of the party seeking
to
modify, add to or eliminate any such provision the following:
(A) written
notification from each Rating Agency to the effect that the modification,
addition to or elimination of such provisions will not cause such Rating Agency
to downgrade its then-current ratings of any Class of Certificates;
and
(B) an
Opinion of Counsel, in form and substance satisfactory to the Securities
Administrator, to the effect that such modification of, addition to or
elimination of such provisions will not cause any Trust REMIC to cease to
qualify as a REMIC and will not cause any Trust REMIC, as the case may be,
to be
subject to an entity-level tax caused by the Transfer of any Residual
Certificate to a Person that is not a Permitted Transferee or a Person other
than the prospective transferee to be subject to a REMIC-tax caused by the
Transfer of a Residual Certificate to a Person that is not a Permitted
Transferee.
(e) Subject
to the preceding subsections, upon surrender for registration of transfer of
any
Certificate at any office or agency of the Securities Administrator maintained
for such purpose pursuant to Section 9.11, the Securities Administrator
shall execute, authenticate and deliver, in the name of the designated
Transferee or Transferees, one or more new Certificates of the same Class of
a
like aggregate Percentage Interest.
(f) At
the
option of the Holder thereof, any Certificate may be exchanged for other
Certificates of the same Class with authorized denominations and a like
aggregate Percentage Interest, upon surrender of such Certificate to be
exchanged at any office or agency of the Securities Administrator maintained
for
such purpose pursuant to Section 9.11. Whenever any Certificates are so
surrendered for exchange, the Securities Administrator shall execute,
authenticate and deliver, the Certificates which the Certificateholder making
the exchange is entitled to receive. Every Certificate presented or surrendered
for transfer or exchange shall (if so required by the Securities Administrator)
be duly endorsed by, or be accompanied by a written instrument of transfer
in
the form satisfactory to the Securities Administrator duly executed by, the
Holder thereof or his attorney duly authorized in writing. In addition, with
respect to each Class R Certificate, the holder thereof may exchange, in the
manner described above, such Class R Certificate for two separate certificates,
each representing such holder's respective Percentage Interest in the Class
R-I
Interest and the Class R-II Interest, respectively, in each case that was
evidenced by the Class R Certificate being exchanged.
(g) No
service charge to the Certificateholders shall be made for any transfer or
exchange of Certificates, but the Securities Administrator may require payment
of a sum sufficient to cover any tax or governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
(h) All
Certificates surrendered for transfer and exchange shall be canceled and
destroyed by the Securities Administrator in accordance with its customary
procedures.
SECTION
6.03. Mutilated,
Destroyed, Lost or Stolen Certificates.
If
(i)
any mutilated Certificate is surrendered to the Securities Administrator, or
the
Securities Administrator receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate and of the ownership thereof,
and
(ii) there is delivered to Securities Administrator such security or indemnity
as may be required by it to save it harmless, then, in the absence of actual
knowledge by the Securities Administrator that such Certificate has been
acquired by a protected purchaser, the Securities Administrator, shall execute,
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of the same Class
and
of like denomination and Percentage Interest. Upon the issuance of any new
Certificate under this Section, the Securities Administrator may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Securities Administrator) connected therewith. Any
replacement Certificate issued pursuant to this Section shall constitute
complete and indefeasible evidence of ownership in the applicable REMIC created
hereunder, as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
SECTION
6.04. Persons
Deemed Owners.
The
Depositor, the Servicers, the Trustee, the Master Servicer, the Securities
Administrator and any agent of any of them may treat the Person in whose name
any Certificate is registered as the owner of such Certificate for the purpose
of receiving distributions pursuant to Section 4.01 and for all other
purposes whatsoever, and none of the Depositor, the Servicers, the Trustee,
the
Master Servicer, the Securities Administrator or any agent of any of them shall
be affected by notice to the contrary.
SECTION
6.05. Certain
Available Information.
On
or
prior to the date of the first sale of any Class B-1 Certificate, Class CE-1
Certificate, Class CE-2 Certificate, Class P Certificate or Residual Certificate
to an Independent third party, the Depositor shall provide to the Securities
Administrator ten copies of any private placement memorandum or other disclosure
document used by the Depositor in connection with the offer and sale of such
Certificate. In addition, if any such private placement memorandum or disclosure
document is revised, amended or supplemented at any time following the delivery
thereof to the Securities Administrator, the Depositor promptly shall inform
the
Securities Administrator of such event and shall deliver to the Securities
Administrator ten copies of the private placement memorandum or disclosure
document, as revised, amended or supplemented. The Securities Administrator
shall maintain at its office as set forth in Section 12.05 hereof and shall
make available free of charge during normal business hours for review by any
Holder of a Certificate or any Person identified to the Securities Administrator
as a prospective transferee of a Certificate, originals or copies of the
following items: (i) in the case of a Holder or prospective transferee of a
Class B-1 Certificate, Class CE-1 Certificate, Class CE-2 Certificate, Class
P
Certificate or Residual Certificate, the related private placement memorandum
or
other disclosure document relating to such Class of Certificates, in the form
most recently provided to the Securities Administrator; and (ii) in all cases,
(A) this Agreement and any amendments hereof entered into pursuant to
Section 11.01, (B) all monthly statements required to be delivered to
Certificateholders of the relevant Class pursuant to Section 5.02 since the
Closing Date, and all other notices, reports, statements and written
communications delivered to the Certificateholders of the relevant Class
pursuant to this Agreement since the Closing Date and (C) any copies of all
Officers’ Certificates of the Servicers since the Closing Date delivered to the
Master Servicer to evidence such Person’s determination that any P&I Advance
or Servicing Advance was, or if made, would be a Nonrecoverable P&I Advance
or Nonrecoverable Servicing Advance. Copies and mailing of any and all of the
foregoing items will be available from the Securities Administrator upon request
at the expense of the Person requesting the same.
ARTICLE
VII
THE
DEPOSITOR, THE SERVICERS AND THE MASTER SERVICER
SECTION
7.01. Liability
of the Depositor, the Servicers and the Master Servicer.
The
Depositor, each Servicer and the Master Servicer each shall be liable in
accordance herewith only to the extent of the obligations specifically imposed
by this Agreement upon them in their respective capacities as Depositor, a
Servicer and Master Servicer and undertaken hereunder by the Depositor, each
Servicer and the Master Servicer herein.
SECTION
7.02. Merger
or Consolidation of the Depositor, the Servicers or the Master
Servicer.
Subject
to the following paragraph, the Depositor will keep in full effect its
existence, rights and franchises as a corporation under the laws of the
jurisdiction of its incorporation. Ocwen will keep in full effect its existence,
rights and franchises as a limited liability company and GMAC will keep in
full
force and effect its existence, rights and franchises as a corporation. Subject
to the following paragraph, the Master Servicer will keep in full effect its
existence, rights and franchises as a national banking association. The
Depositor, each Servicer and the Master Servicer each will obtain and preserve
its qualification to do business as a foreign entity in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage Loans
and to perform its respective duties under this Agreement.
The
Depositor, any Servicer or the Master Servicer may be merged or consolidated
with or into any Person, or transfer all or substantially all of its assets
to
any Person, in which case any Person resulting from any merger or consolidation
to which the Depositor, a Servicer or the Master Servicer shall be a party,
or
any Person succeeding to the business of the Depositor, such Servicer or the
Master Servicer, shall be the successor of the Depositor, such Servicer or
the
Master Servicer, as the case may be, hereunder, without the execution or filing
of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding; provided, however, that any
successor to a Servicer or the Master Servicer shall meet the eligibility
requirements set forth in clauses (i) and (iii) of the last paragraph of
Section 8.02(a) or Section 7.06, as applicable.
SECTION
7.03. Limitation
on Liability of the Depositor, the Servicers, the Master Servicer and
Others.
None
of
the Depositor, the Servicers, the Securities Administrator, the Master Servicer
or any of the directors, officers, employees or agents of the Depositor, the
Servicer or the Master Servicer shall be under any liability to the Trust Fund
or the Certificateholders for any action taken or for refraining from the taking
of any action in good faith pursuant to this Agreement, or for errors in
judgment; provided, however, that this provision shall not protect the
Depositor, a Servicer, the Securities Administrator, the Master Servicer or
any
such person against any breach of warranties, representations or covenants
made
herein or against any specific liability imposed on any such Person pursuant
hereto or against any liability which would otherwise be imposed by reason
of
willful misfeasance, bad faith or negligence, with respect to GMAC or gross
negligence with respect to each party other than GMAC, in the performance of
duties or by reason of reckless disregard of obligations and duties hereunder.
The Depositor, each Servicer, the Securities Administrator, the Master Servicer
and any director, officer, employee or agent of the Depositor, each Servicer,
the Securities Administrator and the Master Servicer may rely in good faith
on
any document of any kind which, prima facie, is properly executed and submitted
by any Person respecting any matters arising hereunder. The Depositor, each
Servicer, the Securities Administrator, the Master Servicer and any director,
officer, employee or agent of the Depositor, each Servicer, the Securities
Administrator or the Master Servicer shall be indemnified and held harmless
by
the Trust Fund against any loss, liability or expense incurred in connection
with any legal action relating to this Agreement, the Certificates or any Credit
Risk Management Agreement or any loss, liability or expense incurred other
than
by reason of willful misfeasance, bad faith or gross negligence in the
performance of duties hereunder or by reason of reckless disregard of
obligations and duties hereunder. None of the Depositor, any Servicer, the
Securities Administrator or the Master Servicer shall be under any obligation
to
appear in, prosecute or defend any legal action unless such action is related
to
its respective duties under this Agreement and, in its opinion, does not involve
it in any expense or liability; provided, however, that each of the Depositor,
each Servicer, the Securities Administrator and the Master Servicer may in
its
discretion undertake any such action which it may deem necessary or desirable
with respect to this Agreement and the rights and duties of the parties hereto
and the interests of the Certificateholders hereunder. In such event, the legal
expenses and costs of such action and any liability resulting therefrom (except
any loss, liability or expense incurred by reason of willful misfeasance, bad
faith or gross negligence in the performance of duties hereunder or by reason
of
reckless disregard of obligations and duties hereunder) shall be expenses,
costs
and liabilities of the Trust Fund, and the Depositor, the related Servicer,
the
Securities Administrator and the Master Servicer shall be entitled to be
reimbursed therefor from the related Collection Account or the Distribution
Account as and to the extent provided in Article III and Article IV, any such
right of reimbursement being prior to the rights of the Certificateholders
to
receive any amount in the related Collection Account and the Distribution
Account.
Notwithstanding
anything to the contrary contained herein, no Servicer shall be liable for
any
actions or inactions prior to the Cut-off Date of any prior servicer of the
related Mortgage Loans and the Master Servicer shall not be liable for any
action or inaction of any Servicer, except to the extent expressly provided
herein, or the Credit Risk Management Agreement.
SECTION
7.04. Limitation
on Resignation of the Servicers.
(a) Except
as
expressly provided herein, no Servicer shall neither assign all or substantially
all of its rights under this Agreement or the servicing hereunder nor delegate
all or substantially all of its duties hereunder nor sell or otherwise dispose
of all or substantially all of its property or assets without, in each case,
the
prior written consent of the Master Servicer, which consent shall not be
unreasonably withheld; provided, that in each case, there must be delivered
to
the Trustee and the Master Servicer a letter from each Rating Agency to the
effect that such transfer of servicing or sale or disposition of assets will
not
result in a qualification, withdrawal or downgrade of the then-current rating
of
any of the Certificates. Notwithstanding the foregoing, each Servicer, without
the consent of the Trustee or the Master Servicer, may retain third-party
contractors to perform certain servicing and loan administration functions,
including without limitation hazard insurance administration, tax payment and
administration, flood certification and administration, collection services
and
similar functions, provided, however, that the retention of such contractors
by
a Servicer shall not limit the obligation of such Servicer to service the
related Mortgage Loans pursuant to the terms and conditions of this Agreement.
No Servicer shall resign from the obligations and duties hereby imposed on
it
except (i) upon determination that its duties hereunder are no longer
permissible under applicable law, or (ii) upon the related Servicer’s written
proposal of a successor servicer reasonably acceptable to each of the Sponsor,
the Depositor and the Master Servicer. No such resignation under clause (i)
above shall become effective unless evidenced by an Opinion of Counsel to such
effect obtained at the expense of such Servicer and delivered to the Trustee
and
the Rating Agencies. No such resignation of a Servicer under clause (ii) shall
be effective unless:
(i) the
proposed successor Servicer is (1) an affiliate of the Master Servicer that
services mortgage loans similar to the Mortgage Loans in the jurisdictions
in
which the related Mortgaged Properties are located or (2) the proposed successor
Servicer has a rating of at least “Above Average” by S&P and either a rating
of at least “RPS2” by Fitch or a rating of at least “SQ2” by
▇▇▇▇▇’▇;
(ii) the
Rating Agencies have confirmed to the Trustee that the appointment of the
proposed successor servicer as the servicer under this Agreement will not result
in the reduction or withdrawal of the then current ratings of any of the
Certificates; and
(iii) the
proposed successor Servicer has a net worth of at least
$25,000,000.
Notwithstanding
anything to the contrary, no resignation of a Servicer shall become effective
until the Master Servicer or a successor Servicer shall have assumed such
Servicer’s responsibilities, duties, liabilities (other than those liabilities
arising prior to the appointment of such successor) and obligations under this
Agreement.
(b) Except
as
expressly provided herein, no Servicer shall assign or transfer any of its
rights, benefits or privileges hereunder to any other Person, or delegate to
or
subcontract with, or authorize or appoint any other Person to perform any of
the
duties, covenants or obligations to be performed by such Servicer hereunder.
The
foregoing prohibition on assignment shall not prohibit a Servicer from
designating a Sub-Servicer as payee of any indemnification amount payable to
such Servicer hereunder; provided, however, that as provided in Section 3.02,
no
Sub-Servicer shall be a third-party beneficiary hereunder and the parties hereto
shall not be required to recognize any Sub-Servicer as an indemnitee under
this
Agreement.
SECTION
7.05. Limitation
on Resignation of the Master Servicer.
The
Master Servicer shall not resign from the obligations and duties hereby imposed
on it except upon determination that its duties hereunder are no longer
permissible under applicable law. Any such determination pursuant to the
preceding sentence permitting the resignation of the Master Servicer shall
be
evidenced by an Opinion of Counsel to such effect obtained at the expense of
the
Master Servicer and delivered to the Trustee and the Rating Agencies. No
resignation of the Master Servicer shall become effective until the Trustee
or a
successor Master Servicer meeting the criteria specified in Section 7.06
shall have assumed the Master Servicer’s responsibilities, duties, liabilities
(other than those liabilities arising prior to the appointment of such
successor) and obligations under this Agreement.
SECTION
7.06. Assignment
of Master Servicing.
The
Master Servicer may sell and assign its rights and delegate its duties and
obligations in its entirety as Master Servicer under this Agreement; provided,
however, that: (i) the purchaser or transferee accept in writing such assignment
and delegation and assume the obligations of the Master Servicer hereunder
(a)
shall have a net worth of not less than $25,000,000 (unless otherwise approved
by each Rating Agency pursuant to clause (ii) below); (b) shall be reasonably
satisfactory to the Trustee (as evidenced in a writing signed by the Trustee);
and (c) shall execute and deliver to the Trustee an agreement, in form and
substance reasonably satisfactory to the Trustee, which contains an assumption
by such Person of the due and punctual performance and observance of each
covenant and condition to be performed or observed by it as master servicer
under this Agreement, any custodial agreement from and after the effective
date
of such agreement; (ii) each Rating Agency shall be given prior written notice
of the identity of the proposed successor to the Master Servicer and each Rating
Agency’s rating of the Certificates in effect immediately prior to such
assignment, sale and delegation will not be downgraded, qualified or withdrawn
as a result of such assignment, sale and delegation, as evidenced by a letter
to
such effect delivered to the Master Servicer and the Trustee; and (iii) the
Master Servicer assigning and selling the master servicing shall deliver to
the
Trustee an Officer’s Certificate and an Opinion of Independent counsel, each
stating that all conditions precedent to such action under this Agreement have
been completed and such action is permitted by and complies with the terms
of
this Agreement. No such assignment or delegation shall affect any liability
of
the Master Servicer arising out of acts or omissions prior to the effective
date
thereof.
SECTION
7.07. Rights
of the Depositor in Respect of the Servicers and the Master
Servicer.
Each
of
the Master Servicer and the Servicers shall afford (and any Sub-Servicing or
Subcontracting Agreement shall provide that each Sub-Servicer or Subcontractor,
as applicable shall afford) the Depositor and the Trustee, upon reasonable
notice, during normal business hours, access to all records maintained by the
Master Servicer or the related Servicer (and any such Sub-Servicer or
Subcontractor, as applicable) in respect of the related Servicer’s rights and
obligations hereunder and access to officers of the Master Servicer or the
related Servicer (and those of any such Sub-Servicer or Subcontractor, as
applicable) responsible for such obligations, and the Master Servicer shall
have
access to all such records maintained by the related Servicer and any
Sub-Servicers or Subcontractors. Upon request, each of the Master Servicer
and
such Servicer shall furnish to the Depositor and the Trustee its (and any such
Sub-Servicer’s or Subcontractor’s) most recent financial statements and such
other information relating to the Master Servicer’s or such Servicer’s capacity
to perform its obligations under this Agreement as it possesses (and that any
such Sub-Servicer or Subcontractor possesses). To the extent the Depositor
and
the Trustee are made aware by the Master Servicer or the related Servicer that
such information is not otherwise available to the public, the Depositor and
the
Trustee shall not disseminate any information obtained pursuant to the preceding
two sentences without the Master Servicer’s or the related Servicer’s written
consent, except as required pursuant to this Agreement or to the extent that
it
is appropriate to do so (i) to its legal counsel, auditors, taxing authorities
or other governmental agencies and the Certificateholders, (ii) pursuant to
any
law, rule, regulation, order, judgment, writ, injunction or decree of any court
or governmental authority having jurisdiction over the Depositor and the Trustee
or the Trust Fund, and in any case, the Depositor or the Trustee, (iii)
disclosure of any and all information that is or becomes publicly known, or
information obtained by the Trustee from sources other than the Depositor,
the
related Servicer or the Master Servicer, (iv) disclosure as required pursuant
to
this Agreement or (v) disclosure of any and all information (A) in any
preliminary or final offering circular, registration statement or contract
or
other document pertaining to the transactions contemplated by the Agreement
approved in advance by the Depositor, the related Servicer or the Master
Servicer or (B) to any affiliate, independent or internal auditor, agent,
employee or attorney of the Trustee having a need to know the same, provided
that the Trustee advises such recipient of the confidential nature of the
information being disclosed, shall use its best efforts to assure the
confidentiality of any such disseminated non-public information. Nothing in
this
Section 7.07 shall limit the obligation of the Servicer to comply with any
applicable law prohibiting disclosure of information regarding the Mortgagors
and the failure of the related Servicer to provide access as provided in this
Section 7.07 as a result of such obligation shall not constitute a breach
of this Section. Nothing in this Section 7.07 shall require the related
Servicer to collect, create, collate or otherwise generate any information
that
it does not generate in its usual course of business. No Servicer shall be
required to make copies of or ship documents to any party unless provisions
have
been made for the reimbursement of the costs thereof. The Depositor may, but
is
not obligated to, enforce the obligations of the Master Servicer and the
Servicers under this Agreement and may, but is not obligated to, perform, or
cause a designee to perform, any defaulted obligation of the Master Servicer
or
any Servicer under this Agreement or exercise the rights of the Master Servicer
or any Servicer under this Agreement; provided that neither the Master Servicer
nor the Servicer shall be relieved of any of its obligations under this
Agreement by virtue of such performance by the Depositor or its designee. The
Depositor shall not have any responsibility or liability for any action or
failure to act by the Master Servicer or the Servicer and is not obligated
to
supervise the performance of the Master Servicer or any Servicer under this
Agreement or otherwise.
SECTION
7.08. Duties
of the Credit Risk Manager.
For
and
on behalf of the Depositor, the Credit Risk Manager will provide reports and
recommendations concerning certain delinquent and defaulted Mortgage Loans,
and
as to the collection of any Prepayment Charges with respect to the Mortgage
Loans. Such reports and recommendations will be based upon information provided
to the Credit Risk Manager pursuant to the Credit Risk Management Agreements,
and the Credit Risk Manager shall look solely to the Servicers and/or Master
Servicer for all information and data (including loss and delinquency
information and data) relating to the servicing of the related Mortgage Loans.
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 related Servicer, the Master Servicer, the Securities Administrator,
the
Trustee, and each Rating Agency. Notwithstanding the foregoing, the termination
of the Credit Risk Manager pursuant to this Section shall not become
effective until the appointment of a successor Credit Risk Manager. The Trustee
is hereby authorized to enter into any Credit Risk Management Agreement
necessary to effect the foregoing.
SECTION
7.09. Limitation
Upon Liability of the Credit Risk Manager.
Neither
the Credit Risk Manager, nor any of its directors, officers, employees, or
agents 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 made in good faith pursuant to this Agreement, in reliance upon
information provided by the Servicer under the related Credit Risk Management
Agreement, or for 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 or bad faith
in
its performance of its duties. 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 related Servicer pursuant to the
related Credit Risk Management Agreement in the performance of its duties
thereunder and hereunder.
SECTION
7.10. Removal
of the Credit Risk Manager.
The
Credit Risk Manager may be removed as Credit Risk Manager by Certificateholders
holding not less than 66 2/3% of the Voting Rights in the Trust Fund, in the
exercise of its or their sole discretion. The Certificateholders shall provide
written notice of the Credit Risk Manager’s removal to the Trustee. Upon receipt
of such notice, the Trustee shall provide written notice to the Credit Risk
Manager of its removal, which shall be effective upon receipt of such notice
by
the Credit Risk Manager, with a copy to the Securities Administrator and the
Master Servicer.
SECTION
7.11. Transfer
of Servicing by Sponsor.
The
Sponsor may, at its option, transfer the servicing responsibilities of Ocwen
and/or GMAC as a Servicer with respect to the related Mortgage Loans at any
time
without cause. No such transfer shall become effective unless and until a
successor to Ocwen or GMAC, as 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
meets the eligibility criteria set forth in Section 7.04 and (ii) all amounts
reimbursable to Ocwen or GMAC, as applicable, under this Agreement shall have
been paid by the successor appointed pursuant to the terms of this Section
7.11
or by the Sponsor including without limitation, all ▇▇▇▇▇▇▇▇▇▇▇▇ ▇&▇
Advances and Servicing Advances made by Ocwen or GMAC, as applicable, accrued
and unpaid Servicing Fees and all out-of-pocket expenses of the related Servicer
incurred in connection with the transfer of servicing to such successor. The
Sponsor shall provide a copy of the written confirmation of the Rating Agencies
to the Trustee, the Securities Administrator and the Master Servicer. In
connection with such appointment and assumption described herein, the Sponsor
may make such arrangements for the compensation of such successor out of
payments on Mortgage Loans as it and such successor shall agree; provided,
however, that no such compensation shall be in excess of that permitted by
Ocwen
or GMAC, as applicable, hereunder. The Sponsor shall take such action,
consistent with this Agreement, as shall be necessary to effectuate any such
succession.
ARTICLE
VIII
DEFAULT
SECTION
8.01. Servicer
Events of Default.
(a) “Servicer
Event of Default,” wherever used herein, means any one of the following
events:
(i) any
failure by a Servicer to remit to the Securities Administrator for distribution
to the Certificateholders any payment (other than a P&I Advance required to
be made from its own funds on any Servicer Remittance Date pursuant to Section
5.03 of the Agreement) required to be made by such Servicer under the terms
of
the Certificates and this Agreement which continues unremedied for a period
of
(i) one Business Day with respect to Ocwen and (ii) two Business Days, with
respect to GMAC after the date upon which written notice of such failure,
requiring the same to be remedied, shall have been given to such Servicer by
the
Depositor or the Trustee (in which case notice shall be provided by telecopy),
or to such Servicer, the Depositor, the Trustee and by the Holders of
Certificates entitled to at least 25% of the Voting Rights; or
(ii) any
failure on the part of a Servicer duly to observe or perform in any material
respect any other of the covenants or agreements on the part of such Servicer
contained in this Agreement, or the material breach by a Servicer of any
representation and warranty contained in Section 2.05 of the Agreement, which
continues unremedied for a period of thirty (30) days after the date on which
written notice of such failure, or as otherwise set forth in this Agreement,
requiring the same to be remedied, shall have been given to such Servicer by
the
Depositor or the Trustee or to such Servicer, the Depositor and the Trustee
by
the Holders of Certificates entitled to at least 25% of the Voting Rights;
provided, however, that in the case of a failure that cannot be cured within
thirty (30) days, the cure period may be extended for an additional thirty
(30)
days if such Servicer can demonstrate to the reasonable satisfaction of the
Trustee that the Servicer is diligently pursuing remedial action;
or
(iii) a
decree
or order of a court or agency or supervisory authority having jurisdiction
in
the premises in an involuntary case under any present or future federal or
state
bankruptcy, insolvency or similar law or the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt, marshalling
of
assets and liabilities or similar proceeding, or for the winding-up or
liquidation of its affairs, shall have been entered against a Servicer and
such
decree or order shall have remained in force undischarged or unstayed for a
period of (i) ninety (90) days with respect to Ocwen or (ii) 60 days with
respect to GMAC; or
(iv) a
Servicer shall consent to the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings of or relating to it or of or relating to
all
or substantially all of its property; or
(v) a
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;
(vi) failure
by a Servicer to duly perform, within the required time period, its obligations
under Sections 3.17, 3.18 or 3.19; or
(vii) any
failure of a Servicer to make any P&I Advance on any Servicer Remittance
Date required to be made from its own funds pursuant to Section 5.03 which
continues unremedied until 3:00 p.m. New York time on the Business Day
immediately following the Servicer Remittance Date; or
(viii) failure
of the Servicer to maintain at least an “average” rating from the Rating
Agencies.
If
a
Servicer Event of Default described in clauses (i) through (vi) or (viii) of
this Section shall occur, then, and in each and every such case, so long as
such Servicer Event of Default shall not have been remedied, the Depositor
or
the Trustee may, and at the written direction of the Holders of Certificates
entitled to at least 51% of Voting Rights, the Trustee shall, by notice in
writing to the defaulting Servicer (and to the Depositor if given by the Trustee
or to the Trustee if given by the Depositor) with a copy to the Master Servicer
and each Rating Agency, terminate all of the rights and obligations of the
defaulting Servicer in its capacity as a Servicer under this Agreement, to
the
extent permitted by law, and in and to the related Mortgage Loans and the
proceeds thereof. If a Servicer Event of Default described in clause (vii)
hereof shall occur, the Trustee shall, by notice in writing to the defaulting
Servicer, the Depositor and the Master Servicer, terminate all of the rights
and
obligations of the defaulting Servicer in its capacity as a Servicer under
this
Agreement and in and to the related Mortgage Loans and the proceeds thereof.
Subject to Section 8.02 of this Agreement, on or after the receipt by the
defaulting Servicer of such written notice, all authority and power of the
defaulting Servicer under this Agreement, whether with respect to the
Certificates (other than as a Holder of any Certificate) or the related Mortgage
Loans or otherwise, shall pass to and be vested in the Master Servicer pursuant
to and under this Section, and, without limitation, the Master Servicer is
hereby authorized and empowered, as attorney-in-fact or otherwise, to execute
and deliver, on behalf of and at the expense of the defaulting Servicer, any
and
all documents and other instruments and to do or accomplish all other acts
or
things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment
of
the related Mortgage Loans and related documents, or otherwise. The defaulting
Servicer agrees promptly (and in any event no later than ten (10) Business
Days
subsequent to such notice) to provide the Master Servicer with all documents
and
records requested by it to enable it to assume the defaulting Servicer’s
functions under this Agreement, and to cooperate with the Master Servicer in
effecting the termination of the defaulting Servicer’s responsibilities and
rights under this Agreement, including, without limitation, the transfer within
one (1) Business Day to the Master Servicer for administration by it of all
cash
amounts which at the time shall be or should have been credited by the
defaulting Servicer to the related Collection Account held by or on behalf
of
the defaulting Servicer or thereafter be 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 P&I Advances, Servicing Advances, accrued and unpaid
Servicing Fees or otherwise, and shall continue to be entitled to the benefits
of Section 7.03 of this Agreement, notwithstanding any such termination,
with respect to events occurring prior to such termination). Reimbursement
of
▇▇▇▇▇▇▇▇▇▇▇▇ ▇&▇ Advances, Servicing Advances and accrued and unpaid
Servicing Fees shall be made on a first in, first out (“FIFO”) basis no later
than the Servicer Remittance Date. For purposes of this Section 8.01(a),
the Trustee shall not be deemed to have knowledge of a Servicer Event of Default
unless a Responsible Officer of the Trustee assigned to and working in the
Trustee’s Corporate Trust Office has actual knowledge thereof or unless written
notice of any event which is in fact such a Servicer Event of Default is
received by the Trustee at its Corporate Trust Office and such notice references
the Certificates, the Trust or this Agreement. The Trustee shall promptly notify
the Master Servicer and the Rating Agencies of the occurrence of a Servicer
Event of Default of which it has knowledge as provided above.
The
Master Servicer shall be entitled to be reimbursed by the defaulting Servicer
(or from amounts on deposit in the Distribution Account if the defaulting
Servicer is unable to fulfill its obligations hereunder) for all reasonable
out-of-pocket or third party costs associated with the transfer of servicing
from the defaulting Servicer, including without limitation, any reasonable
out-of-pocket or third party costs or expenses associated with the complete
transfer of all servicing data and the completion, correction or manipulation
of
such servicing data as may be required by the Master Servicer to correct any
errors or insufficiencies in the servicing data or otherwise to enable the
Master Servicer to service the related Mortgage Loans properly and effectively,
upon presentation of reasonable documentation of such costs and
expenses.
(b) “Master
Servicer Event of Default,” wherever used herein, means any one of the following
events:
(i) any
failure on the part of the Master Servicer duly to observe or perform in any
material respect any other of the covenants or agreements on the part of the
Master Servicer contained in this Agreement, or the breach by the Master
Servicer of any representation and warranty contained in Section 2.04,
which continues unremedied for a period of 30 days after the date on which
written notice of such failure, or as otherwise set forth in this Agreement,
requiring the same to be remedied, shall have been given to the Master Servicer
by the Depositor or the Trustee or to the Master Servicer, the Depositor and
the
Trustee by the Holders of Certificates entitled to at least 25% of the Voting
Rights; or
(ii) a
decree
or order of a court or agency or supervisory authority having jurisdiction
in
the premises in an involuntary case under any present or future federal or
state
bankruptcy, insolvency or similar law or the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt, marshalling
of
assets and liabilities or similar proceeding, or for the winding-up or
liquidation of its affairs, shall have been entered against the Master Servicer
and such decree or order shall have remained in force undischarged or unstayed
for a period of 90 days; or
(iii) the
Master Servicer shall consent to the appointment of a conservator or receiver
or
liquidator in any insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings of or relating to it or of or relating to
all
or substantially all of its property; or
(iv) the
Master Servicer shall admit in writing its inability to pay its debts generally
as they become due, file a petition to take advantage of any applicable
insolvency or reorganization statute, make an assignment for the benefit of
its
creditors, or voluntarily suspend payment of its obligations; or
(v) failure
by the Master Servicer to duly perform, within the required time period, its
obligations under Sections 4.15, 4.16, 4.17 and 4.18.
If
a
Master Servicer Event of Default shall occur, then, and in each and every such
case, so long as such Master Servicer Event of Default shall not have been
remedied, the Depositor or the Trustee may, and at the written direction of
the
Holders of Certificates entitled to at least 51% of Voting Rights, the Trustee
shall, by notice in writing to the Master Servicer (and to the Depositor if
given by the Trustee or to the Trustee if given by the Depositor) with a copy
to
each Rating Agency, terminate all of the rights and obligations of the Master
Servicer in its capacity as Master Servicer under this Agreement, to the extent
permitted by law, and in and to the Mortgage Loans and the proceeds thereof.
On
or after the receipt by the Master Servicer of such written notice, all
authority and power of the Master Servicer under this Agreement, whether with
respect to the Certificates (other than as a Holder of any Certificate) or
the
Mortgage Loans or otherwise including, without limitation, the compensation
payable to the Master Servicer under this Agreement, shall pass to and be vested
in the Trustee pursuant to and under this Section, and, without limitation,
the
Trustee is hereby authorized and empowered, as attorney-in-fact or otherwise,
to
execute and deliver, on behalf of and at the expense of the Master Servicer,
any
and all documents and other instruments and to do or accomplish all other acts
or things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment
of
the Mortgage Loans and related documents, or otherwise. The Master Servicer
agrees promptly (and in any event no later than ten Business Days subsequent
to
such notice) to provide the Trustee with all documents and records requested
by
it to enable it to assume the Master Servicer’s functions under this Agreement,
and to cooperate with the Trustee in effecting the termination of the Master
Servicer’s responsibilities and rights under this Agreement (provided, however,
that the Master Servicer shall continue to be entitled to receive all amounts
accrued or owing to it under this Agreement on or prior to the date of such
termination and shall continue to be entitled to the benefits of
Section 7.03, notwithstanding any such termination, with respect to events
occurring prior to such termination). For purposes of this Section 8.01(b),
the Trustee shall not be deemed to have knowledge of a Master Servicer Event
of
Default unless a Responsible Officer of the Trustee assigned to and working
in
the Trustee’s Corporate Trust Office has actual knowledge thereof or unless
written notice of any event which is in fact such a Master Servicer Event of
Default is received by the Trustee and such notice references the Certificates,
the Trust or this Agreement. The Trustee shall promptly notify the Rating
Agencies of the occurrence of a Master Servicer Event of Default of which it
has
knowledge as provided above.
Notwithstanding
the foregoing, the Trustee may, if it shall be unwilling to continue to act,
or
shall, if it is unable to so act, petition a court of competent jurisdiction
to
appoint, or appoint on its own behalf, any established housing and home finance
institution servicer, master servicer, servicing or mortgage servicing
institution having a net worth of not less than $25,000,000 and meeting such
other standards for a successor master servicer as are set forth in this
Agreement, as the successor to such Master Servicer in the assumption of all
of
the responsibilities, duties or liabilities of a master servicer.
To
the
extent that the costs and expenses of the Trustee related to the termination
of
the Master Servicer, appointment of a successor Master Servicer or the transfer
and assumption of the master servicing by the Trustee (including, without
limitation, (i) all legal costs and expenses and all due diligence costs and
expenses associated with an evaluation of the potential termination of the
Master Servicer as a result of a Master Servicer Event of Default and (ii)
all
costs and expenses associated with the complete transfer of the master
servicing, including all servicing files and all servicing data and the
completion, correction or manipulation of such servicing data as may be required
by the successor Master Servicer to correct any errors or insufficiencies in
the
servicing data or otherwise to enable the successor Master Servicer to master
service the Mortgage Loans in accordance with this Agreement) are not fully
and
timely reimbursed by the terminated Master Servicer, the Trustee shall be
entitled to reimbursement of such costs and expenses from the Distribution
Account.
Neither
the Trustee nor any other successor master servicer shall be deemed to be in
default hereunder by reason of any failure to make, or any delay in making,
any
distribution hereunder or any portion thereof or any failure to perform, or
any
delay in performing, any duties or responsibilities hereunder, in either case
caused by the failure of the Master Servicer to deliver or provide, or any
delay
in delivering or providing, any cash, information, documents or records to
it.
SECTION
8.02. Master
Servicer to Act; Appointment of Successor.
(a) On
and
after the time a Servicer receives a notice of termination, the Master Servicer
shall be the successor in all respects to such Servicer in its capacity as
a
Servicer under this Agreement and the transactions set forth or provided for
herein, and all the responsibilities, duties and liabilities relating thereto
and arising thereafter shall be assumed by the Master Servicer (except for
any
representations or warranties of such Servicer under this Agreement, the
responsibilities, duties and liabilities contained in Section 2.03 of this
Agreement and the obligation to deposit amounts in respect of losses pursuant
to
Section 3.10(b) of this Agreement) by the terms and provisions hereof including,
without limitation, such Servicer’s obligations to make P&I Advances
pursuant to Section 5.03 of this Agreement; provided, however, that if the
Master Servicer is prohibited by law or regulation from obligating itself to
make advances regarding delinquent mortgage loans, then the Master Servicer
shall not be obligated to make P&I Advances pursuant to Section 5.03 of this
Agreement; and provided further, that any failure to perform such duties or
responsibilities caused by such Servicer’s failure to provide information
required by Section 8.01 shall not be considered a default by the Master
Servicer as successor to such Servicer hereunder; provided, however, that (1)
it
is understood and acknowledged by the parties hereto that there will be a period
of transition (not to exceed 120 days) before the actual servicing functions
can
be fully transferred to the Master Servicer or any successor Servicer appointed
in accordance with the following provisions and (2) any failure to perform
such
duties or responsibilities caused by such Servicer’s failure to provide
information required by Section 8.01 of this Agreement shall not be considered
a
default by the Master Servicer as successor to such Servicer. As compensation
therefor, the Master Servicer shall be entitled to the Servicing Fee and all
funds relating to the related Mortgage Loans to which the terminated Servicer
would have been entitled if it had continued to act hereunder. Notwithstanding
the above, the Master Servicer may, if it shall be unwilling to so act, or
shall, if it is unable to so act promptly appoint or petition a court of
competent jurisdiction to appoint, a Person that satisfies the eligibility
criteria set forth below as the successor to the terminated Servicer under
this
Agreement in the assumption of all or any part of the responsibilities, duties
or liabilities of the terminated Servicer under this Agreement.
Notwithstanding
anything herein to the contrary, in no event shall the Trustee or the Master
Servicer be liable for any Servicing Fee or for 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 set forth or provided for herein.
Any
successor Servicer appointed under this Agreement must (i) be an established
mortgage loan servicing institution that is a ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac
approved seller/servicer, (ii) be approved by each Rating Agency by a written
confirmation from each Rating Agency that the appointment of such successor
Servicer would not result in the reduction or withdrawal of the then current
ratings of any outstanding Class of Certificates, (iii) have a net worth of
not
less than $25,000,000 and (iv) assume all the responsibilities, duties or
liabilities of the related Servicer (other than liabilities of the related
Servicer hereunder incurred prior to termination of the related Servicer under
Section 8.01 herein) under this Agreement as if originally named as a party
to this Agreement.
(b) (1)
All
servicing transfer costs (including, without limitation, servicing transfer
costs of the type described in Section 8.02(a) of this Agreement and
incurred by the Trustee, the Master Servicer and any successor Servicer under
paragraph (b)(2) below) in connection with the termination of a Servicer shall
be paid by the terminated Servicer upon presentation of reasonable documentation
of such costs, and if such predecessor or initial Servicer, as applicable,
defaults in its obligation to pay such costs, the successor Servicer, the Master
Servicer and the Trustee shall be entitled to reimbursement therefor from the
assets of the Trust Fund.
(2) No
appointment of a successor to a Servicer under this Agreement shall be effective
until the assumption by the successor of all of such Servicer’s
responsibilities, duties and liabilities hereunder. In connection with such
appointment and assumption described herein, the Trustee may make such
arrangements for the compensation of such successor out of payments on the
related Mortgage Loans as it and such successor shall agree; provided, however,
that no such compensation shall be in excess of that permitted the related
Servicer as such hereunder. The Depositor, the Trustee and such successor shall
take such action, consistent with this Agreement, as shall be necessary to
effectuate any such succession. Pending appointment of a successor to the
related Servicer under this Agreement, the Master Servicer shall act in such
capacity as hereinabove provided.
SECTION
8.03. Notification
to Certificateholders.
(a) Upon
any
termination of a Servicer or the Master Servicer pursuant to
Section 8.01(a) or (b) or any appointment of a successor to a Servicer or
the Master Servicer pursuant to Section 8.02 of this Agreement, the Trustee
shall give prompt written notice thereof to the Certificateholders at their
respective addresses appearing in the Certificate Register.
(b) Not
later
than the later of sixty (60) days after the occurrence of any event, which
constitutes or which, with notice or lapse of time or both, would constitute
a
Servicer Event of Default or a Master Servicer Event of Default or five (5)
days
after a Responsible Officer of the Trustee becomes aware of the occurrence
of
such an event, the Trustee shall transmit by mail to all Holders of Certificates
notice of each such occurrence, unless such default or Servicer Event of Default
or Master Servicer Event of Default shall have been cured or
waived.
SECTION
8.04. Waiver
of Servicer Events of Default.
The
Holders representing at least 66% of the Voting Rights evidenced by all Classes
of Certificates affected by any default, Servicer Event of Default or Master
Servicer Event of Default hereunder may waive such default, Servicer Event
of
Default or Master Servicer Event of Default; provided, however, that a Servicer
Event of Default under clause (i) or (vii) of Section 8.01(a) of this
Agreement may be waived only by all of the Holders of the Regular Certificates.
Upon any such waiver of a default, Servicer Event of Default or Master Servicer
Event of Default, such default, Servicer Event of Default or Master Servicer
Event of Default shall cease to exist and shall be deemed to have been remedied
for every purpose hereunder. No such waiver shall extend to any subsequent
or
other default, Servicer Event of Default or Master Servicer Event of Default
or
impair any right consequent thereon except to the extent expressly so
waived.
ARTICLE
IX
CONCERNING
THE TRUSTEE AND THE SECURITIES ADMINISTRATOR
SECTION
9.01. Duties
of Trustee and Securities Administrator.
The
Trustee, prior to the occurrence of a Master Servicer Event of Default and
after
the curing or waiver of all Master Servicer Events of Default which may have
occurred, and the Securities Administrator each undertake to perform such duties
and only such duties as are specifically set forth in this Agreement as duties
of the Trustee and the Securities Administrator, respectively. During the
continuance of a Master Servicer Event of Default, the Trustee shall exercise
such of the rights and powers vested in it by this Agreement, and use the same
degree of care and skill in its exercise as a prudent person would exercise
or
use under the circumstances in the conduct of such person’s own affairs. Any
permissive right of the Trustee enumerated in this Agreement shall not be
construed as a duty.
Each
of
the Trustee and the Securities Administrator, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to it, which are specifically required to be furnished
pursuant to any provision of this Agreement, shall examine them to determine
whether they conform to the requirements of this Agreement. If any such
instrument is found not to conform to the requirements of this Agreement in
a
material manner, the Trustee or the Securities Administrator, as the case may
be, shall take such action as it deems appropriate to have the instrument
corrected, and if the instrument is not corrected to its satisfaction, the
Securities Administrator will provide notice to the Trustee thereof and the
Trustee will provide notice to the Certificateholders.
The
Trustee shall promptly remit to the related Servicer any complaint, claim,
demand, notice or other document (collectively, the “Notices”) delivered to the
Trustee as a consequence of the assignment of any Mortgage Loan hereunder and
relating to the servicing of the Mortgage Loans; provided than any such notice
(i) is delivered to the Trustee at its Corporate Trust Office, (ii) contains
information sufficient to permit the Trustee to make a determination that the
real property to which such document relates is a Mortgaged Property. The
Trustee shall have no duty hereunder with respect to any Notice it may receive
or which may be alleged to have been delivered to or served upon it unless
such
Notice is delivered to it or served upon it at its Corporate Trust Office and
such Notice contains the information required pursuant to clause (ii) of the
preceding sentence.
No
provision of this Agreement shall be construed to relieve the Trustee or the
Securities Administrator from liability for its own negligent action, its own
negligent failure to act or its own misconduct; provided, however,
that:
(i) Prior
to
the occurrence of a Master Servicer Event of Default, and after the curing
or
waiver of all such Master Servicer Events of Default which may have occurred
with respect to the Trustee and at all times with respect to the Securities
Administrator, the duties and obligations of the Trustee shall be determined
solely by the express provisions of this Agreement, neither the Trustee nor
the
Securities Administrator shall be liable except for the performance of such
duties and obligations as are specifically set forth in this Agreement, no
implied covenants or obligations shall be read into this Agreement against
the
Trustee or the Securities Administrator and, in the absence of bad faith on
the
part of the Trustee or the Securities Administrator, respectively, the Trustee
or the Securities Administrator, respectively, may conclusively rely, as to
the
truth of the statements and the correctness of the opinions expressed therein,
upon any certificates or opinions furnished to the Trustee or the Securities
Administrator, respectively, that conform to the requirements of this
Agreement;
(ii) Neither
the Trustee nor the Securities Administrator shall be liable for an error of
judgment made in good faith by a Responsible Officer or Responsible Officers
of
the Trustee or an officer or officers of the Securities Administrator,
respectively, unless it shall be proved that the Trustee or the Securities
Administrator, respectively, was negligent in ascertaining the pertinent facts;
and
(iii) Neither
the Trustee nor the Securities Administrator shall be liable with respect to
any
action taken, suffered or omitted to be taken by it in good faith in accordance
with the direction of the Holders of Certificates entitled to at least 25%
of
the Voting Rights relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee or the Securities
Administrator or exercising any trust or power conferred upon the Trustee or
the
Securities Administrator under this Agreement.
SECTION
9.02. Certain
Matters Affecting Trustee and Securities Administrator.
(a) Except
as
otherwise provided in Section 9.01 of this Agreement:
(i) The
Trustee and the Securities Administrator may request and rely upon and shall
be
protected in acting or refraining from acting upon any resolution, Officers’
Certificate, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal, bond
or
other paper or document reasonably believed by it to be genuine and to have
been
signed or presented by the proper party or parties;
(ii) The
Trustee and the Securities Administrator may consult with counsel of its
selection and any advice of such counsel or any Opinion of Counsel shall be
full
and complete authorization and protection in respect of any action taken or
suffered or omitted by it hereunder in good faith and in accordance with such
advice or Opinion of Counsel;
(iii) Neither
the Trustee nor the Securities Administrator shall be under any obligation
to
exercise any of the trusts or powers vested in it by this Agreement or to
institute, conduct or defend any litigation hereunder or in relation hereto
at
the request, order or direction of any of the Certificateholders, pursuant
to
the provisions of this Agreement, unless such Certificateholders shall have
offered to the Trustee or the Securities Administrator, as the case may be,
reasonable security or indemnity satisfactory to it against the costs, expenses
and liabilities which may be incurred therein or thereby; nothing contained
herein shall, however, relieve the Trustee of the obligation, upon the
occurrence of a Master Servicer Event of Default (which has not been cured
or
waived), to exercise such of the rights and powers vested in it by this
Agreement, and to use the same degree of care and skill in their exercise as
a
prudent person would exercise or use under the circumstances in the conduct
of
such person’s own affairs;
(iv) Neither
the Trustee nor the Securities Administrator shall be liable for any action
taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Agreement;
(v) Prior
to
the occurrence of a Master Servicer Event of Default hereunder and after the
curing or waiver of all Master Servicer Events of Default which may have
occurred with respect to the Trustee and at all times with respect to the
Securities Administrator, neither the Trustee nor the Securities Administrator
shall be bound to make any investigation into the facts or matters stated in
any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or document, unless
requested in writing to do so by the Holders of Certificates entitled to at
least 25% of the Voting Rights; provided, however, that if the payment within
a
reasonable time to the Trustee or the Securities Administrator of the costs,
expenses or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee or the Securities Administrator,
as applicable, not reasonably assured to the Trustee or the Securities
Administrator by such Certificateholders, the Trustee or the Securities
Administrator, as applicable, may require reasonable indemnity satisfactory
to
it against such expense, or liability from such Certificateholders as a
condition to taking any such action;
(vi) The
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and the Trustee
shall not be responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder;
(vii) The
Trustee shall not be liable for any loss resulting from the investment of funds
held in the Collection Account, for any loss resulting from the investment
of
funds held in the Reserve Fund or for any loss resulting from the redemption
or
sale of any such investment as therein authorized;
(viii) The
Trustee shall not be deemed to have notice of any default, Master Servicer
Event
of Default or Servicer Event of Default unless a Responsible Officer of the
Trustee has actual knowledge thereof or unless written notice of any event
which
is in fact such a default is received by a Responsible Officer of the Trustee
at
the Corporate Trust Office of the Trustee, and such notice references the
Certificates and this Agreement; and
(ix) The
rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to,
and
shall be enforceable by, each agent, custodian and other Person employed to
act
hereunder.
(b) All
rights of action under this Agreement or under any of the Certificates,
enforceable by the Trustee, may be enforced by it without the possession of
any
of the Certificates, or the production thereof at the trial or other proceeding
relating thereto, and any such suit, action or proceeding instituted by the
Trustee shall be brought in its name for the benefit of all the Holders of
such
Certificates, subject to the provisions of this Agreement.
(c) The
Trustee is hereby directed by the Depositor to execute the Swap Agreement on
behalf of the Supplemental Interest Trust in the form presented to it by the
Depositor and shall have no responsibility for the contents of the Swap
Agreement, including, without limitation, the representations and warranties
contained therein. Any funds payable by the Trustee on behalf of the
Supplemental Interest Trust under the Swap Agreement shall be paid from funds
of
the Supplemental Interest Trust in accordance with the terms and provisions
of
the Swap Agreement. Notwithstanding anything to the contrary contained herein
or
in the Swap Agreement, the Trustee shall not be required to make any payments
to
the counterparty under the Swap Agreement.
(d) None
of
the Securities Administrator, the Master Servicer, the Servicers, the Sponsor,
the Depositor, the Custodian or the Trustee shall be responsible for the acts
or
omissions of the others or the Swap Provider, it being understood that this
Agreement shall not be construed to render those partners joint venturers or
agents of one another.
SECTION
9.03. Trustee
and Securities Administrator not Liable for Certificates or Mortgage
Loans.
The
recitals contained herein and in the Certificates (other than the signature
of
the Securities Administrator, the authentication of the Securities Administrator
on the Certificates, the acknowledgments of the Trustee contained in Article
II
and the representations and warranties of the Trustee in Section 9.12 of
this Agreement) shall be taken as the statements of the Depositor and neither
the Trustee nor the Securities Administrator assumes any responsibility for
their correctness. Neither the Trustee nor the Securities Administrator makes
any representations or warranties as to the validity or sufficiency of this
Agreement (other than as specifically set forth in Section 9.12) of this
Agreement, the Swap Agreement or of the Certificates (other than the signature
of the Securities Administrator and authentication of the Securities
Administrator on the Certificates) or of any Mortgage Loan or related document.
The Trustee and the Securities Administrator shall not be accountable for the
use or application by the Depositor of any of the Certificates or of the
proceeds of such Certificates, or for the use or application of any funds paid
to the Depositor or the Master Servicer in respect of the Mortgage Loans or
deposited in or withdrawn from any Collection Account by the related Servicer,
other than with respect to the Securities Administrator any funds held by it
or
on behalf of the Trustee in accordance with Section 3.23 and 3.24 of this
Agreement.
SECTION
9.04. Trustee
and Securities Administrator May Own Certificates.
Each
of
the Trustee and the Securities Administrator in its individual capacity or
any
other capacity may become the owner or pledgee of Certificates and may transact
business with other interested parties and their Affiliates with the same rights
it would have if it were not Trustee or the Securities
Administrator.
SECTION
9.05. Fees
and Expenses of Trustee and Securities Administrator.
The
fees
of the Trustee and the Securities Administrator hereunder, of ▇▇▇▇▇ Fargo as
the
Custodian under the ▇▇▇▇▇ Fargo Custodial Agreement or of DBNTC as the Custodian
under the DBNTC Custodial Agreement shall be paid in accordance with a side
letter agreement with the Master Servicer and at the sole expense of the Master
Servicer. In addition, the Trustee, the Securities Administrator, the Custodians
and any director, officer, employee or agent of the Trustee, the Securities
Administrator and the Custodians shall be indemnified by the Trust and held
harmless against any loss, liability or expense (including reasonable attorney’s
fees and expenses) incurred by the Trustee, the Custodians or the Securities
Administrator in connection with any claim or legal action or any pending or
threatened claim or legal action arising out of or in connection with the
acceptance or administration of its respective obligations and duties under
this
Agreement, including the Swap Agreement and any and all other agreements related
hereto, other than any loss, liability or expense (i) for which the Trustee
is
indemnified by the Master Servicer or any Servicer, (ii) that constitutes a
specific liability of the Trustee or the Securities Administrator pursuant
to
Section 11.01(g) of this Agreement or (iii) any loss, liability or expense
incurred by reason of willful misfeasance, bad faith or negligence in the
performance of duties hereunder by the Trustee or the Securities Administrator
or by reason of reckless disregard of obligations and duties hereunder. In
no
event shall the Trustee or the Securities Administrator be liable for special,
indirect or consequential loss or damage of any kind whatsoever (including
but
not limited to lost profits), even if it has been advised of the likelihood
of
such loss or damage and regardless of the form of action. The Master Servicer
agrees to indemnify the Trustee, from, and hold the Trustee harmless against,
any loss, liability or expense (including reasonable attorney’s fees and
expenses) incurred by the Trustee by reason of the Master Servicer’s willful
misfeasance, bad faith or gross negligence in the performance of its duties
under this Agreement or by reason of the Master Servicer’s reckless disregard of
its obligations and duties under this Agreement. In addition, the Sponsor agrees
to indemnify the Trustee for, and to hold the Trustee harmless against, any
loss, liability or expense arising out of, or in connection with, the provisions
set forth in the last paragraph of Section 2.01 of this Agreement,
including, without limitation, all costs, liabilities and expenses (including
reasonable legal fees and expenses) of investigating and defending itself
against any claim, action or proceeding, pending or threatened, relating to
the
provisions of such paragraph. The indemnities in this Section 9.05 shall
survive the termination or discharge of this Agreement and the resignation
or
removal of the Master Servicer, the Trustee, the Securities Administrator or
the
Custodians. Any payment hereunder made by the Master Servicer to the Trustee
shall be from the Master Servicer’s own funds, without reimbursement from REMIC
I therefor.
SECTION
9.06. Eligibility
Requirements for Trustee and Securities Administrator.
The
Trustee and the Securities Administrator shall at all times be a corporation
or
an association (other than the Depositor, the Sponsor, the Master Servicer
or
any Affiliate of the foregoing) organized and doing business under the laws
of
any state or the United States of America, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus of at
least $50,000,000 (or a member of a bank holding company whose capital and
surplus is at least $50,000,000) and subject to supervision or examination
by
federal or state authority. If such corporation or association publishes reports
of conditions at least annually, pursuant to law or to the requirements of
the
aforesaid supervising or examining authority, then for the purposes of this
Section the combined capital and surplus of such corporation or association
shall be deemed to be its combined capital and surplus as set forth in its
most
recent report of conditions so published. In case at any time the Trustee or
the
Securities Administrator, as applicable, shall cease to be eligible in
accordance with the provisions of this Section, the Trustee or the Securities
Administrator, as applicable, shall resign immediately in the manner and with
the effect specified in Section 9.07 of this Agreement.
SECTION
9.07. Resignation
and Removal of Trustee and Securities Administrator.
The
Trustee and the Securities Administrator may at any time resign and be
discharged from the trust hereby created by giving written notice thereof to
the
Depositor, to the Master Servicer, to the Securities Administrator (or the
Trustee, if the Securities Administrator resigns) and to the Certificateholders.
Upon receiving such notice of resignation, the Depositor shall promptly appoint
a successor trustee or successor securities administrator by written instrument,
in duplicate, which instrument shall be delivered to the resigning Trustee
or
Securities Administrator, as applicable, and to the successor trustee or
successor securities administrator, as applicable. A copy of such instrument
shall be delivered to the Certificateholders, the Trustee, the Securities
Administrator and the Master Servicer by the Depositor. If no successor trustee
or successor securities administrator shall have been so appointed and have
accepted appointment within thirty (30) days after the giving of such notice
of
resignation, the resigning Trustee or Securities Administrator, as the case
may
be, may, at the expense of the Trust Fund, petition any court of competent
jurisdiction for the appointment of a successor trustee, successor securities
administrator, Trustee or Securities Administrator, as applicable.
If
at any
time the Trustee or the Securities Administrator shall cease to be eligible
in
accordance with the provisions of Section 9.06 of this Agreement and shall
fail to resign after written request therefor by the Depositor, or if at any
time the Trustee or the Securities Administrator shall become incapable of
acting, or shall be adjudged bankrupt or insolvent, or a receiver of the Trustee
or the Securities Administrator or of its property shall be appointed, or any
public officer shall take charge or control of the Trustee or the Securities
Administrator or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the Depositor may remove the Trustee or the
Securities Administrator, as applicable and appoint a successor trustee or
successor securities administrator, as applicable, by written instrument, in
duplicate, which instrument shall be delivered to the Trustee or the Securities
Administrator so removed and to the successor trustee or successor securities
administrator. A copy of such instrument shall be delivered to the
Certificateholders, the Trustee, the Securities Administrator and the Master
Servicer by the Depositor.
The
Holders of Certificates entitled to at least 51% of the Voting Rights may at
any
time remove the Trustee or the Securities Administrator and appoint a successor
trustee or successor securities administrator by written instrument or
instruments, in triplicate, signed by such Holders or their attorneys-in-fact
duly authorized, one complete set of which instruments shall be delivered to
the
Depositor, one complete set to the Trustee or the Securities Administrator
so
removed and one complete set to the successor so appointed. A copy of such
instrument shall be delivered to the Certificateholders, the Trustee (in the
case of the removal of the Securities Administrator), the Securities
Administrator (in the case of the removal of the Trustee) and the Master
Servicer by the Depositor.
Any
resignation or removal of the Trustee or the Securities Administrator and
appointment of a successor trustee or successor securities administrator
pursuant to any of the provisions of this Section shall not become
effective until acceptance of appointment by the successor trustee or successor
securities administrator, as applicable, as provided in
Section 9.08.
Notwithstanding
anything to the contrary contained herein, the Master Servicer and the
Securities Administrator shall at all times be the same Person.
SECTION
9.08. Successor
Trustee or Securities Administrator.
Any
successor trustee or successor securities administrator appointed as provided
in
Section 9.07 of this Agreement shall execute, acknowledge and deliver to
the Depositor and its predecessor trustee or predecessor securities
administrator an instrument accepting such appointment hereunder, and thereupon
the resignation or removal of the predecessor trustee or predecessor securities
administrator shall become effective and such successor trustee or successor
securities administrator without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of
its
predecessor hereunder, with the like effect as if originally named as trustee
or
securities administrator herein. The predecessor trustee or predecessor
securities administrator shall deliver to the successor trustee or successor
securities administrator all Mortgage Loan Documents and related documents
and
statements to the extent held by it hereunder, as well as all monies, held
by it
hereunder, and the Depositor and the predecessor trustee or predecessor
securities administrator shall execute and deliver such instruments and do
such
other things as may reasonably be required for more fully and certainly vesting
and confirming in the successor trustee or successor securities administrator
all such rights, powers, duties and obligations.
No
successor trustee or successor securities administrator shall accept appointment
as provided in this Section unless at the time of such acceptance such
successor trustee or successor securities administrator shall be eligible under
the provisions of Section 9.06 and the appointment of such successor
trustee or successor securities administrator shall not result in a downgrading
of any Class of Certificates by any Rating Agency, as evidenced by a letter
from
each Rating Agency.
Upon
acceptance of appointment by a successor trustee or successor securities
administrator as provided in this Section, the Depositor shall mail notice
of
the succession of such trustee hereunder to all Holders of Certificates at
their
addresses as shown in the Certificate Register. If the Depositor fails to mail
such notice within ten (10) days after acceptance of appointment by the
successor trustee or successor securities administrator, the successor trustee
or successor securities administrator shall cause such notice to be mailed
at
the expense of the Depositor.
SECTION
9.09. Merger
or Consolidation of Trustee or Securities Administrator.
Any
corporation or association into which the Trustee or the Securities
Administrator may be merged or converted or with which it may be consolidated
or
any corporation or association resulting from any merger, conversion or
consolidation to which the Trustee or the Securities Administrator shall be
a
party, or any corporation or association succeeding to the business of the
Trustee or the Securities Administrator shall be the successor of the Trustee
or
the Securities Administrator hereunder, provided such corporation or association
shall be eligible under the provisions of Section 9.06 of this Agreement,
without the execution or filing of any paper or any further act on the part
of
any of the parties hereto, anything herein to the contrary
notwithstanding.
SECTION
9.10. Appointment
of Co-Trustee or Separate Trustee.
Notwithstanding
any other provisions hereof, at any time, for the purpose of meeting any legal
requirements of any jurisdiction in which any part of the REMIC I or property
securing the same may at the time be located, the Trustee shall have the power
and shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee to act as co-trustee or co-trustees, jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of REMIC
I, and to vest in such Person or Persons, in such capacity, and for the benefit
of the Holders of the Certificates, such title to REMIC I, or any part thereof,
and, subject to the other provisions of this Section 9.10, such powers,
duties, obligations, rights and trusts as the Trustee may consider necessary
or
desirable. No co-trustee or separate trustee hereunder shall be required to
meet
the terms of eligibility as a successor trustee under Section 9.06
hereunder and no notice to Holders of Certificates of the appointment of
co-trustee(s) or separate trustee(s) shall be required under Section 9.08
hereof.
In
the
case of any appointment of a co-trustee or separate trustee pursuant to this
Section 9.10 all rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and exercised or
performed by the Trustee and such separate trustee or co-trustee jointly, except
to the extent that under any law of any jurisdiction in which any particular
act
or acts are to be performed by the Trustee (whether as Trustee hereunder or
as
successor to a defaulting Master Servicer hereunder), the Trustee shall be
incompetent or unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations (including the holding of title to REMIC
I or any portion thereof in any such jurisdiction) shall be exercised and
performed by such separate trustee or co-trustee at the direction of the
Trustee.
Any
notice, request or other writing given to the Trustee shall be deemed to have
been given to each of the then separate trustees and co-trustees, as effectively
as if given to each of them. Every instrument appointing any separate trustee
or
co-trustee shall refer to this Agreement and the conditions of this Article
IX.
Each separate trustee and co-trustee, upon its acceptance of the trust
conferred, shall be vested with the estates or property specified in its
instrument of appointment, either jointly with the Trustee, or separately,
as
may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee.
Any
separate trustee or co-trustee may, at any time, constitute the Trustee, its
agent or attorney-in-fact, with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Agreement
on
its behalf and in its name. If any separate trustee or co-trustee shall die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee or co-trustee.
SECTION
9.11. Appointment
of Office or Agency.
The
Certificates may be surrendered for registration of transfer or exchange at
the
Securities Administrator’s office located at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and presented for final distribution at the
Corporate Trust Office of the Securities Administrator where notices and demands
to or upon the Securities Administrator in respect of the Certificates and
this
Agreement may be served.
SECTION
9.12. Representations
and Warranties.
The
Trustee hereby represents and warrants to the Master Servicer, the Securities
Administrator, the Servicers and the Depositor as applicable, as of the Closing
Date, that:
(i) It
is a
national banking association duly organized, validly existing and in good
standing under the laws of the United States of America.
(ii) The
execution and delivery of this Agreement by it, and the performance and
compliance with the terms of this Agreement by it, will not violate its articles
of association or bylaws or constitute a default (or an event which, with notice
or lapse of time, or both, would constitute a default) under, or result in
the
breach of, any material agreement or other instrument to which it is a party
or
which is applicable to it or any of its assets.
(iii) It
has
the full power and authority to enter into and consummate all transactions
contemplated by this Agreement, has duly authorized the execution, delivery
and
performance of this Agreement, and has duly executed and delivered this
Agreement.
(iv) This
Agreement, assuming due authorization, execution and delivery by the other
parties hereto, constitutes a valid, legal and binding obligation of it,
enforceable against it in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, receivership, reorganization, moratorium
and
other laws affecting the enforcement of creditors’ rights generally, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) It
is not
in violation of, and its execution and delivery of this Agreement and its
performance and compliance with the terms of this Agreement will not constitute
a violation of, any law, any order or decree of any court or arbiter, or any
order, regulation or demand of any federal, state or local governmental or
regulatory authority, which violation, in its good faith and reasonable
judgment, is likely to affect materially and adversely either the ability of
it
to perform its obligations under this Agreement or its financial
condition.
(vi) No
litigation is pending or, to the best of its knowledge, threatened against
it,
which would prohibit it from entering into this Agreement or, in its good faith
reasonable judgment, is likely to materially and adversely affect either the
ability of it to perform its obligations under this Agreement or its financial
condition.
ARTICLE
X
TERMINATION
▇▇▇▇▇▇▇
▇▇.▇▇. ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ or Liquidation of All Mortgage Loans.
(a) Subject
to Section 10.02 of this Agreement, the respective obligations and
responsibilities under this Agreement of the Depositor, the Master Servicer,
the
Securities Administrator, the Servicer and the Trustee (other than the
obligations of the Master Servicer to the Trustee pursuant to Section 9.05
of this Agreement and of the Servicers to make remittances to the Securities
Administrator and the Securities Administrator to make payments in respect
of
the REMIC I Regular Interests, or the Classes of Certificates as hereinafter
set
forth) shall terminate upon payment to the Certificateholders and the deposit
of
all amounts held by or on behalf of the Trustee and required hereunder to be
so
paid or deposited on the Distribution Date coinciding with or following the
earlier to occur of (i) the purchase by the Terminator (as defined below) of
all
Mortgage Loans and each REO Property remaining in REMIC I and (ii) the final
payment or other liquidation (or any advance with respect thereto) of the last
Mortgage Loan or REO Property remaining in REMIC I; provided, however, that
in
no event shall the trust created hereby continue beyond the earlier of (i)
the
expiration of 21 years from the death of the last survivor of the descendants
of
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late ambassador of the United States to the Court of
St.
▇▇▇▇▇, living on the date hereof and (ii) the Last Scheduled Distribution Date.
The purchase by the Terminator of all Mortgage Loans and each REO Property
remaining in REMIC I shall be at a price (the “Termination Price”) equal to the
sum of (i) the greater of (A) the aggregate Purchase Price of all the Mortgage
Loans included in REMIC I, plus the appraised value of each REO Property, if
any, included in REMIC I, such appraisal to be conducted by an appraiser
mutually agreed upon by the Master Servicer and the Trustee in their reasonable
discretion and (B) the aggregate fair market value of all of the assets of
REMIC
I (as determined by the Master Servicer and the Trustee, as of the close of
business on the third Business Day next preceding the date upon which notice
of
any such termination is furnished to Certificateholders pursuant to the third
paragraph of this Section 10.01), (ii) any amounts due and owing to the
Swap Provider under the Swap Agreement as of the termination date plus (iii)
any
amounts due the Servicers and the Master Servicer in respect of unpaid Servicing
Fees and outstanding P&I Advances and Servicing Advances.
(b) The
Master Servicer or, if the Master Servicer fails to exercise such optional
termination right, the first of either GMAC or Ocwen to fulfill the requirements
set forth in this paragraph (either the Master Servicer, GMAC or Ocwen, the
“Terminator”) shall have the right to purchase all of the Mortgage Loans and
each REO Property remaining in REMIC I pursuant to clause (i) of the preceding
paragraph no later than the Determination Date in the month immediately
preceding the Distribution Date on which the Certificates will be retired;
provided, however, that the Terminator may elect to purchase all of the Mortgage
Loans and each REO Property remaining in REMIC I pursuant to clause (i) above
only if the aggregate Scheduled Principal Balance of the Mortgage Loans and
each
REO Property remaining in the Trust Fund at the time of such election is reduced
to less than or equal to 10% of the aggregate Scheduled Principal Balance of
the
Mortgage Loans as of the Cut-off Date. By acceptance of the Residual
Certificates, the Holder of the Residual Certificates agrees, in connection
with
any termination hereunder, to assign and transfer any portion of the Termination
Price in excess of par, and to the extent received in respect of such
termination, to pay any such amounts to the Holders of the Class CE-1
Certificates. Notwithstanding the foregoing, the optional termination right
may
only be exercised by one of the Servicers if (1) such Servicer receives written
notification from the Master Servicer that the Master Servicer will not exercise
such optional termination right or (2) such Servicer does not receive such
written notification from the Master Servicer, and the Master Servicer fails
to
exercise its optional termination right by the third Distribution Date following
the date such right became exercisable; provided, however, in no event shall
a
Servicer exercise its optional termination right under (1) or (2) above unless
it first provides written notice to the Authorized Officers of the Sponsor
that
it intends to exercise such optional termination right and such notice is
received by the Sponsor prior to the Sponsor’s receipt of such notice from the
other Servicers.
(c) Notice
of
the liquidation of the Certificates shall be given promptly by the Securities
Administrator by letter to the Certificateholders mailed (a) in the event such
notice is given in connection with the purchase of the Mortgage Loans and each
REO Property by the Master Servicer, not earlier than the 15th day and not
later
than the 25th day of the month next preceding the month of the final
distribution on the Certificates or (b) otherwise during the month of such
final
distribution on or before the Determination Date in such month, in each case
specifying (i) the Distribution Date upon which the Trust Fund will terminate
and the final payment in respect of the REMIC I Regular Interests or the
Certificates will be made upon presentation and surrender of the related
Certificates at the office of the Securities Administrator therein designated,
(ii) the amount of any such final payment, (iii) that no interest shall accrue
in respect of the REMIC I Regular Interests or Certificates from and after
the
Interest Accrual Period relating to the final Distribution Date therefor and
(iv) that the Record Date otherwise applicable to such Distribution Date is
not
applicable, payments being made only upon presentation and surrender of the
Certificates at the office of the Securities Administrator. In the event such
notice is given in connection with the purchase of all of the Mortgage Loans
and
each REO Property remaining in REMIC I by the Master Servicer, the Master
Servicer shall deliver to the Securities Administrator for deposit in the
Distribution Account not later than the Business Day prior to the Distribution
Date on which the final distribution on the Certificates an amount in
immediately available funds equal to the above-described Termination Price.
The
Securities Administrator shall remit to the Servicers, the Master Servicer,
the
Trustee and the Custodians from such funds deposited in the Distribution Account
(i) any amounts which the Servicers would be permitted to withdraw and retain
from the Collection Account pursuant to Section 3.09 of this Agreement as
if such funds had been deposited therein (including all unpaid Servicing Fees,
Master Servicing Fees and all outstanding P&I Advances and Servicing
Advances) and (ii) any other amounts otherwise payable by the Securities
Administrator to the Master Servicer, the Trustee, the Custodian, the Servicers
and the Swap Provider from amounts on deposit in the Distribution Account
pursuant to the terms of this Agreement prior to making any final distributions
pursuant to Section 10.01(d) below. Upon certification to the Trustee by
the Securities Administrator of the making of such final deposit, the Trustee
shall promptly release or cause to be released to the Master Servicer the
Mortgage Files for the remaining Mortgage Loans, and Trustee shall execute
all
assignments, endorsements and other instruments delivered to it and necessary
to
effectuate such transfer.
(d) Upon
presentation of the Certificates by the Certificateholders on the final
Distribution Date, the Securities Administrator shall distribute to each
Certificateholder so presenting and surrendering its Certificates the amount
otherwise distributable on such Distribution Date in accordance with
Section 5.01 in respect of the Certificates so presented and surrendered.
Any funds not distributed to any Holder or Holders of Certificates being retired
on such Distribution Date because of the failure of such Holder or Holders
to
tender their Certificates shall, on such date, be set aside and held in trust
and credited to the account of the appropriate non-tendering Holder or Holders.
If any Certificates as to which notice has been given pursuant to this
Section 10.01 shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Securities Administrator
shall mail a second notice to the remaining non-tendering Certificateholders
to
surrender their Certificates for cancellation in order to receive the final
distribution with respect thereto. If within one year after the second notice
all such Certificates shall not have been surrendered for cancellation, the
Securities Administrator shall, directly or through an agent, mail a final
notice to the remaining non-tendering Certificateholders concerning surrender
of
their Certificates. The costs and expenses of maintaining the funds in trust
and
of contacting such Certificateholders shall be paid out of the assets remaining
in the trust funds. If within one (1) year after the final notice any such
Certificates shall not have been surrendered for cancellation, the Securities
Administrator shall pay to the Depositor all such amounts, and all rights of
non-tendering Certificateholders in or to such amounts shall thereupon cease.
No
interest shall accrue or be payable to any Certificateholder on any amount
held
in trust by the Securities Administrator as a result of such Certificateholder’s
failure to surrender its Certificate(s) on the final Distribution Date for
final
payment thereof in accordance with this Section 10.01. Any such amounts
held in trust by the Securities Administrator shall be held uninvested in an
Eligible Account.
SECTION
10.02. Additional
Termination Requirements.
(a) In
the
event that the Terminator purchases all the Mortgage Loans and each REO Property
or the final payment on or other liquidation of the last Mortgage Loan or REO
Property remaining in REMIC I pursuant to Section 10.01, the Trust Fund
shall be terminated in accordance with the following additional
requirements:
(i) The
Trustee shall specify the first day in the 90-day liquidation period in a
statement attached to each Trust REMIC’s final Tax Return pursuant to Treasury
regulation Section 1.860F-1 and shall satisfy all requirements of a
qualified liquidation under Section 860F of the Code and any regulations
thereunder, as evidenced by an Opinion of Counsel obtained by and at the expense
of the Terminator;
(ii) During
such 90-day liquidation period and, at or prior to the time of making of the
final payment on the Certificates, the Trustee shall sell all of the assets
of
REMIC I to the Terminator for cash; and
(iii) At
the
time of the making of the final payment on the Certificates, the Securities
Administrator shall distribute or credit, or cause to be distributed or
credited, to the Holders of the Residual Certificates all cash on hand in the
Trust Fund (other than cash retained to meet claims), and the Trust Fund shall
terminate at that time.
(b) At
the
expense of the Terminator (or, if the Trust Fund is being terminated as a result
of the occurrence of the event described in clause (ii) of the first paragraph
of Section 10.01, at the expense of the Trust Fund), the Terminator shall
prepare or cause to be prepared the documentation required in connection with
the adoption of a plan of liquidation of each Trust REMIC pursuant to this
Section 10.02.
(c) By
their
acceptance of Certificates, the Holders thereof hereby agree to authorize the
Trustee to specify the 90-day liquidation period for each Trust REMIC, which
authorization shall be binding upon all successor
Certificateholders.
ARTICLE
XI
REMIC
PROVISIONS
SECTION
11.01. REMIC
Administration.
(a) The
Trustee shall elect to treat each Trust REMIC as a REMIC under the Code and,
if
necessary, under applicable state law. Each such election will be made by the
Securities Administrator on Form 1066 or other appropriate federal tax or
information return or any appropriate state return for the taxable year ending
on the last day of the calendar year in which the Certificates are issued.
For
the purposes of the REMIC election in respect of REMIC I, the REMIC I Regular
Interests shall be designated as the Regular Interests in REMIC I and the Class
R-I Interest shall be designated as the Residual Interests in REMIC I. For
the
purposes of the REMIC election in respect of REMIC II, the Class R-II Interest
shall be designated as the Regular Interests in REMIC II and the Class R-II
Interest shall be designated as the Residual Interest in REMIC II. The Class
A
Certificates, the Mezzanine Certificates, the Class B-1 Certificates, the Class
P Certificates, the Class CE-1 Certificates and the Class CE-2 Certificates
(exclusive of any right to receive payments from the Reserve Fund) shall be
designated as the Regular Interests in REMIC III and the Class R-III Interest
shall be designated as the Residual Interests in REMIC III. The Trustee shall
not permit the creation of any “interests” in each Trust REMIC (within the
meaning of Section 860G of the Code) other than the REMIC I Regular
Interests, REMIC II Regular Interests and the interests represented by the
Certificates.
(b) The
Closing Date is hereby designated as the “Startup Day” of each Trust REMIC
within the meaning of Section 860G(a)(9) of the Code.
(c) The
Securities Administrator shall be reimbursed for any and all expenses relating
to any tax audit of the Trust Fund (including, but not limited to, any
professional fees or any administrative or judicial proceedings with respect
to
each Trust REMIC that involve the Internal Revenue Service or state tax
authorities), including the expense of obtaining any tax related Opinion of
Counsel except as specified herein. The Securities Administrator, as agent
for
each Trust REMIC’s tax matters person shall (i) act on behalf of the Trust Fund
in relation to any tax matter or controversy involving any Trust REMIC and
(ii)
represent the Trust Fund in any administrative or judicial proceeding relating
to an examination or audit by any governmental taxing authority with respect
thereto. The holder of the largest Percentage Interest of each Class of Residual
Certificates shall be designated, in the manner provided under Treasury
regulations section 1.860F-4(d) and Treasury regulations section
301.6231(a)(7)-1, as the tax matters person of the related REMIC created
hereunder. By their acceptance thereof, the holder of the largest Percentage
Interest of the Residual Certificates hereby agrees to irrevocably appoint
the
Securities Administrator or an Affiliate as its agent to perform all of the
duties of the tax matters person for the Trust Fund.
(d) The
Securities Administrator shall prepare and file and the Trustee shall sign
all
of the Tax Returns in respect of each REMIC created hereunder. The expenses
of
preparing and filing such returns shall be borne by the Securities Administrator
without any right of reimbursement therefor.
(e) The
Securities Administrator shall perform on behalf of each Trust REMIC all
reporting and other tax compliance duties that are the responsibility of such
REMIC under the Code, the REMIC Provisions or other compliance guidance issued
by the Internal Revenue Service or any state or local taxing authority. Among
its other duties, as required by the Code, the REMIC Provisions or other such
compliance guidance, the Securities Administrator shall provide (i) to any
Transferor of a Residual Certificate such information as is necessary for the
application of any tax relating to the transfer of a Residual Certificate to
any
Person who is not a Permitted Transferee upon receipt of additional reasonable
compensation, (ii) to the Certificateholders such information or reports as
are
required by the Code or the REMIC Provisions including reports relating to
interest, original issue discount and market discount or premium (using the
Prepayment Assumption as required) and (iii) to the Internal Revenue Service
the
name, title, address and telephone number of the person who will serve as the
representative of each Trust REMIC. The Depositor shall provide or cause to
be
provided to the Securities Administrator, within ten (10) days after the Closing
Date, all information or data that the Securities Administrator reasonably
determines to be relevant for tax purposes as to the valuations and issue prices
of the Certificates, including, without limitation, the price, yield, prepayment
assumption and projected cash flow of the Certificates.
(f) To
the
extent in the control of the Trustee or the Securities Administrator, each
such
Person (i) shall take such action and shall cause each REMIC created hereunder
to take such action as shall be necessary to create or maintain the status
thereof as a REMIC under the REMIC Provisions, (ii) shall not take any action,
cause the Trust Fund to take any action or fail to take (or fail to cause to
be
taken) any action that, under the REMIC Provisions, if taken or not taken,
as
the case may be, could (A) endanger the status of each Trust REMIC as a REMIC
or
(B) result in the imposition of a tax upon the Trust Fund (including but not
limited to the tax on prohibited transactions as defined in
Section 860F(a)(2) of the Code and the tax on contributions to a REMIC set
forth in Section 860G(d) of the Code) (either such event, an “Adverse REMIC
Event”) unless such action or inaction is permitted under this Agreement or the
Trustee and the Securities Administrator have received an Opinion of Counsel,
addressed to the them (at the expense of the party seeking to take such action
but in no event at the expense of the Trustee or the Securities Administrator)
to the effect that the contemplated action will not, with respect to any Trust
REMIC, endanger such status or result in the imposition of such a tax, nor
(iii)
shall the Securities Administrator take or fail to take any action (whether
or
not authorized hereunder) as to which the Trustee has advised it in writing
that
it has received an Opinion of Counsel to the effect that an Adverse REMIC Event
could occur with respect to such action; provided that the Securities
Administrator may conclusively rely on such Opinion of Counsel and shall incur
no liability for its action or failure to act in accordance with such Opinion
of
Counsel. In addition, prior to taking any action with respect to any Trust
REMIC
or the respective assets of each, or causing any Trust REMIC to take any action,
which is not contemplated under the terms of this Agreement, the Securities
Administrator will consult with the Trustee or its designee, in writing, with
respect to whether such action could cause an Adverse REMIC Event to occur
with
respect to any Trust REMIC, and the Securities Administrator shall not take
any
such action or cause any Trust REMIC to take any such action as to which the
Trustee has advised it in writing that an Adverse REMIC Event could occur.
The
Trustee may consult with counsel to make such written advice, and the cost
of
same shall be home by the party seeking to take the action not permitted by
this
Agreement, but in no event shall such cost be an expense of the
Trustee.
(g) In
the
event that any tax is imposed on “prohibited transactions” of any REMIC created
hereunder as defined in Section 860F(a)(2) of the Code, on the “net income
from foreclosure property” of such REMIC as defined in Section 860G(c) of
the Code, on any contributions to any such REMIC after the Startup Day therefor
pursuant to Section 860G(d) of the Code, or any other tax is imposed by the
Code or any applicable provisions of state or local tax laws, such tax shall
be
charged (i) to the Trustee pursuant to Section 11.03 of this Agreement, if
such tax arises out of or results from a breach by the Trustee of any of its
obligations under this Article XI, (ii) to the Securities Administrator pursuant
to Section 11.03 of this Agreement, if such tax arises out of or results
from a breach by the Securities Administrator of any of its obligations under
this Article XI, (iii) to the Master Servicer pursuant to Section 11.03 of
this Agreement, if such tax arises out of or results from a breach by the Master
Servicer of any of its obligations under Article IV or under this Article XI,
(iv) to the related Servicer pursuant to Section 11.03 of this Agreement,
if such tax arises out of or results from a breach by such Servicer of any
of
its obligations under Article III or under this Article XI, or (v) in all other
cases, against amounts on deposit in the Distribution Account and shall be
paid
by withdrawal therefrom.
(h) The
Securities Administrator shall, for federal income tax purposes, maintain books
and records with respect to each Trust REMIC on a calendar year and on an
accrual basis.
(i) Following
the Startup Day, neither the Securities Administrator nor the Trustee shall
accept any contributions of assets to any Trust REMIC other than in connection
with any Qualified Substitute Mortgage Loan delivered in accordance with
Section 2.03 unless it shall have received an Opinion of Counsel to the
effect that the inclusion of such assets in the Trust Fund will not cause the
related REMIC to fail to qualify as a REMIC at any time that any Certificates
are outstanding or subject such REMIC to any tax under the REMIC Provisions
or
other applicable provisions of federal, state and local law or
ordinances.
(j) Neither
the Trustee nor the Securities Administrator shall knowingly enter into any
arrangement by which any Trust REMIC will receive a fee or other compensation
for services nor permit either REMIC to receive any income from assets other
than “qualified mortgages” as defined in Section 860G(a)(3) of the Code or
“permitted investments” as defined in Section 860G(a)(5) of the
Code.
(k) The
Securities Administrator shall apply for an employer identification number
with
the Internal Revenue Service via a Form SS-4 or other comparable method for
each
REMIC. In connection with the foregoing, the Securities Administrator shall
provide the name and address of the person who can be contacted to obtain
information required to be reported to the holders of Regular Interests in
each
REMIC as required by IRS Form 8811.
SECTION
11.02. Prohibited
Transactions and Activities.
None
of
the Depositor, the Servicers, the Securities Administrator, the Master Servicer
or the Trustee shall sell, dispose of or substitute for any of the Mortgage
Loans (except in connection with (i) the foreclosure of a Mortgage Loan,
including but not limited to, the acquisition or sale of a Mortgaged Property
acquired by deed in lieu of foreclosure, (ii) the bankruptcy of REMIC I, (iii)
the termination of REMIC I pursuant to Article X of this Agreement, (iv) a
substitution pursuant to Article II of this Agreement or (v) a purchase of
Mortgage Loans pursuant to Article II of this Agreement), nor acquire any assets
for any Trust REMIC (other than REO Property acquired in respect of a defaulted
Mortgage Loan), nor sell or dispose of any investments in the Collection Account
or the Distribution Account for gain, nor accept any contributions to any Trust
REMIC after the Closing Date (other than a Qualified Substitute Mortgage Loan
delivered in accordance with Section 2.03), unless it has received an
Opinion of Counsel, addressed to the Trustee and the Securities Administrator
(at the expense of the party seeking to cause such sale, disposition,
substitution, acquisition or contribution but in no event at the expense of
the
Trustee) that such sale, disposition, substitution, acquisition or contribution
will not (a) affect adversely the status of any Trust REMIC as a REMIC or (b)
cause any Trust REMIC to be subject to a tax on “prohibited transactions” or
“contributions” pursuant to the REMIC Provisions.
SECTION
11.03. Indemnification.
(a) The
Trustee agrees to be liable for any taxes and costs incurred by the Trust Fund,
the Depositor, the Master Servicer, the Securities Administrator or the
Servicers including, without limitation, any reasonable attorneys fees imposed
on or incurred by the Trust Fund, the Depositor, the Master Servicer, the
Securities Administrator or the Servicer as a result of the Trustee’s failure to
perform its covenants set forth in this Article XI in accordance with the
standard of care of the Trustee set forth in this Agreement.
(b) GMAC
agrees to indemnify the Trust Fund, the Depositor, Ocwen, the Master Servicer,
the Securities Administrator and the Trustee for any taxes and costs including
any reasonable attorneys’ fees imposed on or incurred by the Trust Fund, the
Depositor, the Master Servicer, the Securities Administrator or the Trustee,
as
a result of GMAC’s failure to perform its covenants set forth in Article III in
accordance with the standard of care of GMAC set forth in this
Agreement.
(c) Ocwen
agrees to indemnify the Trust Fund, the Depositor, GMAC, the Master Servicer,
the Securities Administrator and the Trustee for any taxes and costs including
any reasonable attorneys’ fees imposed on or incurred by the Trust Fund, the
Depositor, the Master Servicer, the Securities Administrator or the Trustee,
as
a result of a Ocwen’s failure to perform its covenants set forth in Article III
in accordance with the standard of care of Ocwen set forth in this
Agreement.
(d) The
Master Servicer agrees to indemnify the Trust Fund, the Depositor, the Servicers
and the Trustee for any taxes and costs including any reasonable attorneys’ fees
imposed on or incurred by the Trust Fund, the Depositor, the Servicers or the
Trustee, as a result of the Master Servicer’s failure to perform its covenants
set forth in Article IV in accordance with the standard of care of the Master
Servicer set forth in this Agreement.
(e) The
Securities Administrator agrees to be liable for any taxes and costs incurred
by
the Trust Fund, the Depositor, the Servicers or the Trustee including any
reasonable attorneys’ fees imposed on or incurred by the Trust Fund, the
Depositor, the Servicers or the Trustee as a result of the Securities
Administrator’s failure to perform its covenants set forth in this Article XI in
accordance with the standard of care of the Securities Administrator set forth
in this Agreement.
ARTICLE
XII
MISCELLANEOUS
PROVISIONS
SECTION
12.01. Amendment.
This
Agreement may be amended from time to time by the Depositor, each Servicer,
the
Master Servicer, the Securities Administrator and the Trustee, but without
the
consent of any of the Certificateholders, (i) to cure any ambiguity or defect,
(ii) to correct, modify or supplement any provisions herein (including to give
effect to the expectations of Certificateholders), (iii) to ensure compliance
with Regulation AB or (iv) to make any other provisions with respect to matters
or questions arising under this Agreement which shall not be inconsistent with
the provisions of this Agreement and that such action shall not, as evidenced
by
an Opinion of Counsel delivered to the Trustee, 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. No amendment shall
be
deemed to adversely affect in any material respect the interests of any
Certificateholder who shall have consented thereto, and no Opinion of Counsel
shall be required to address the effect of any such amendment on any such
consenting Certificateholder.
This
Agreement may also be amended from time to time by the Depositor, each Servicer,
the Master Servicer, the Securities Administrator and the Trustee with the
consent of the Swap Provider and the Holders of Certificates entitled to at
least 66% of the Voting Rights for the purpose of adding any provisions to
or
changing in any manner or eliminating any of the provisions of this Agreement
or
of modifying in any manner the rights of the Holders of Certificates; provided,
however, that no such amendment shall (i) reduce in any manner the amount of,
or
delay the timing of, payments received on Mortgage Loans which are required
to
be distributed on any Certificate without the consent of the Holder of such
Certificate, (ii) adversely affect in any material respect the interests of
the
Holders of any Class of Certificates in a manner, other than as described in
(i), without the consent of the Holders of Certificates of such Class evidencing
at least 66% of the Voting Rights allocated to such Class, or (iii) modify
the
consents required by the immediately preceding clauses (i) and (ii) without
the
consent of the Holders of all Certificates then outstanding. Notwithstanding
any
other provision of this Agreement, for purposes of the giving or withholding
of
consents pursuant to this Section 12.01, Certificates registered in the
name of the Depositor or a Servicer or any Affiliate thereof shall be entitled
to Voting Rights with respect to matters affecting such Certificates. Without
limiting the generality of the foregoing, any amendment to this Agreement
required in connection with the compliance with or the clarification of any
reporting obligations described in Section 5.06 hereof shall not require
the consent of any Certificateholder and without the need for any Opinion of
Counsel or Rating Agency confirmation.
Notwithstanding
any contrary provision of this Agreement, the Trustee shall not consent to
any
amendment to this Agreement unless it shall have first received an Opinion
of
Counsel to the effect that such amendment is permitted hereunder and will not
result in the imposition of any tax on any Trust REMIC pursuant to the REMIC
Provisions or cause any Trust REMIC to fail to qualify as a REMIC at any time
that any Certificates are outstanding and that such amendment is authorized
or
permitted by this Agreement.
Promptly
after the execution of any such amendment the Trustee shall furnish a copy
of
such amendment to each Certificateholder.
It
shall
not be necessary for the consent of Certificateholders under this
Section 12.01 to approve the particular form of any proposed amendment, but
it shall be sufficient if such consent shall approve the substance thereof.
The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
The
cost
of any Opinion of Counsel to be delivered pursuant to this Section 12.01
shall be borne by the Person seeking the related amendment, but in no event
shall such Opinion of Counsel be an expense of the Trustee.
The
Trustee may, but shall not be obligated to enter into any amendment pursuant
to
this Section that affects its rights, duties and immunities under this
Agreement or otherwise.
SECTION
12.02. Recordation
of Agreement; Counterparts.
To
the
extent permitted by applicable law, this Agreement is subject to recordation
in
all appropriate public offices for real property records in all the counties
or
other comparable jurisdictions in which any or all of the properties subject
to
the Mortgages are situated, and in any other appropriate public recording office
or elsewhere, such recordation to be effected by the Depositor at the expense
of
the Certificateholders, but only upon direction of the Trustee accompanied
by an
Opinion of Counsel to the effect that such recordation materially and
beneficially affects the interests of the Certificateholders.
For
the
purpose of facilitating the recordation of this Agreement as herein provided
and
for other purposes, this Agreement may be executed simultaneously in any number
of counterparts, each of which counterparts shall be deemed to be an original,
and such counterparts shall constitute but one and the same
instrument.
SECTION
12.03. Limitation
on Rights of Certificateholders.
The
death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust Fund, nor entitle such Certificateholder’s legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust Fund, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
No
Certificateholder shall have any right to vote (except as expressly provided
for
herein) or in any manner otherwise control the operation and management of
the
Trust Fund, or the obligations of the parties hereto, nor shall anything herein
set forth, or contained in the terms of any of the Certificates, be construed
so
as to constitute the Certificateholders from time to time as partners or members
of an association; nor shall any Certificateholder be under any liability to
any
third person by reason of any action taken by the parties to this Agreement
pursuant to any provision hereof.
No
Certificateholder shall have any right by virtue of any provision of this
Agreement to institute any suit, action or proceeding in equity or at law upon
or under or with respect to this Agreement, unless such Holder previously shall
have given to the Trustee a written notice of default and of the continuance
thereof, as hereinbefore provided, and unless also the Holders of Certificates
entitled to at least 25% of the Voting Rights shall have made written request
upon the Trustee to institute such action, suit or proceeding in its own name
as
Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to
be
incurred therein or thereby, and the Trustee, for 15 days after its receipt
of
such notice, request and offer of indemnity, shall have neglected or refused
to
institute any such action, suit or proceeding. It is understood and intended,
and expressly covenanted by each Certificateholder with every other
Certificateholder. and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatsoever by virtue of any provision of
this
Agreement to affect, disturb or prejudice the rights of the Holders of any
other
of such Certificates, or to obtain or seek to obtain priority over or preference
to any other such Holder, or to enforce any right under this Agreement, except
in the manner herein provided and for the equal, ratable and common benefit
of
all Certificateholders. For the protection and enforcement of the provisions
of
this Section, each and every Certificateholder and the Trustee shall be entitled
to such relief as can be given either at law or in equity.
SECTION
12.04. Governing
Law.
This
Agreement shall be construed in accordance with the laws of the State of New
York and the obligations, rights and remedies of the parties hereunder shall
be
determined in accordance with such laws without regard to conflicts of laws
principles thereof other than Section 5-1401 of the New York General Obligations
Law which shall govern.
SECTION
12.05. Notices.
All
directions, demands and notices hereunder shall be in writing and shall be
deemed to have been duly given when received if sent by facsimile, receipt
confirmed, if personally delivered at or mailed by first class mail, postage
prepaid, or by express delivery service or delivered in any other manner
specified herein, to (a) in the case of the Depositor, ACE Securities Corp.,
AMACAR GROUP, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇), or such
other address or telecopy number as may hereafter be furnished to the Servicers,
the Master Servicer, the Securities Administrator and the Trustee in writing
by
the Depositor, (b) in the case of the Ocwen, Ocwen Loan Servicing, LLC, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Secretary (telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇), or such other address
or
telecopy number as may hereafter be furnished to GMAC, the Trustee, the Master
Servicer, the Securities Administrator, GMAC Mortgage Corporation, and the
Depositor in writing by Ocwen, (c) in the case of GMAC, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
or such
other address or telecopy number as may hereafter be furnished to Ocwen, the
Trustee, the Master Servicer, the Securities Administrator and the Depositor
in
writing by GMAC, (d) in the case of the Master Servicer and the Securities
Administrator, ▇.▇. ▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and for overnight delivery
to ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Ace Securities
Corp., 2006-SL1 (telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇), or such other address or
telecopy number as may hereafter be furnished to the Trustee, the Depositor
and
the Servicers in writing by the Master Servicer or the Securities Administrator
and (e) in the case of the Trustee, at the Corporate Trust Office or such other
address or telecopy number as the Trustee may hereafter be furnish to the
Servicers, the Master Servicer, the Securities Administrator and the Depositor
in writing by the Trustee. Any notice required or permitted to be given to
a
Certificateholder shall be given by first class mail, postage prepaid, at the
address of such Holder as shown in the Certificate Register. Any notice so
mailed within the time prescribed in this Agreement shall be conclusively
presumed to have been duly given when mailed, whether or not the
Certificateholder receives such notice. A copy of any notice required to be
telecopied hereunder also shall be mailed to the appropriate party in the manner
set forth above.
SECTION
12.06. 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
12.07. Notice
to Rating Agencies.
The
Trustee shall use its best efforts promptly to provide notice to the Rating
Agencies with respect to each of the following of which a Responsible Officer
has actual knowledge:
1. Any
material change or amendment to this Agreement;
2. The
occurrence of any Servicer Event of Default or Master Servicer Event of Default
that has not been cured or waived;
3. The
resignation or termination of a Servicer, the Master Servicer or the
Trustee;
4. The
repurchase or substitution of Mortgage Loans pursuant to or as contemplated
by
Section 2.03 of this Agreement;
5. The
final
payment to the Holders of any Class of Certificates;
6. Any
change in the location of the Distribution Account; and
7. Any
event
that would result in the inability of the Trustee as successor Servicer to
make
advances regarding delinquent Mortgage Loans.
In
addition, the Securities Administrator shall promptly make available to each
Rating Agency copies of each report to Certificateholders described in
Section 5.02 of this Agreement.
Each
Servicer shall make available to each Rating Agency copies of the
following:
1. Each
Annual Statement of Compliance described in Section 3.17 of this Agreement;
and
2. Each
Assessment of Compliance and Attestation Report described in
Section 3.18.
Any
such
notice pursuant to this Section 12.07 shall be in writing and shall be
deemed to have been duly given if personally delivered at or mailed by first
class mail, postage prepaid, or by express delivery service to Standard &
Poor’s, a division of the ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; and to ▇▇▇▇▇’▇ Investors Service, Inc., ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ or such other addresses as the Rating Agencies may
designate in writing to the parties hereto.
SECTION
12.08. Article
and Section References.
All
article and section references used in this Agreement, unless otherwise
provided, are to articles and sections in this Agreement.
SECTION
12.09. Grant
of Security Interest.
It
is the
express intent of the parties hereto that the conveyance of the Mortgage Loans
by the Depositor to the Trustee, on behalf of the Trust and for the benefit
of
the Certificateholders, be, and be construed as, a sale of the Mortgage Loans
by
the Depositor and not a pledge of the Mortgage Loans to secure a debt or other
obligation of the Depositor. However, in the event that, notwithstanding the
aforementioned intent of the parties, the Mortgage Loans are held to be property
of the Depositor, then, (a) it is the express intent of the parties that such
conveyance be deemed a pledge of the Mortgage Loans by the Depositor to the
Trustee, on behalf of the Trust and for the benefit of the Certificateholders,
to secure a debt or other obligation of the Depositor and (b)(1) this Agreement
shall also be deemed to be a security agreement within the meaning of Articles
8
and 9 of the Uniform Commercial Code as in effect from time to time in the
State
of New York; (2) the conveyance provided for in Section 2.01 shall be
deemed to be a grant by the Depositor to the Trustee, on behalf of the Trust
and
for the benefit of the Certificateholders, of a security interest in all of
the
Depositor’s right, title and interest in and to the Mortgage Loans and all
amounts payable to the holders of the Mortgage Loans in accordance with the
terms thereof and all proceeds of the conversion, voluntary or involuntary,
of
the foregoing into cash, instruments, securities or other property, including
without limitation all amounts, other than investment earnings, from time to
time held or invested in the Collection Account and the Distribution Account,
whether in the form of cash, instruments, securities or other property; (3)
the
obligations secured by such security agreement shall be deemed to be all of
the
Depositor’s obligations under this Agreement, including the obligation to
provide to the Certificateholders the benefits of this Agreement relating to
the
Mortgage Loans and the Trust Fund; and (4) notifications to persons holding
such
property, and acknowledgments, receipts or confirmations from persons holding
such property, shall be deemed notifications to, or acknowledgments, receipts
or
confirmations from, financial intermediaries, bailees or agents (as applicable)
of the Trustee for the purpose of perfecting such security interest under
applicable law. Accordingly, the Depositor hereby grants to the Trustee, on
behalf of the Trust and for the benefit of the Certificateholders, a security
interest in the Mortgage Loans and all other property described in clause (2)
of
the preceding sentence, for the purpose of securing to the Trustee the
performance by the Depositor of the obligations described in clause (3) of
the
preceding sentence. Notwithstanding the foregoing, the parties hereto intend
the
conveyance pursuant to Section 2.01 to be a true, absolute and
unconditional sale of the Mortgage Loans and assets constituting the Trust
Fund
by the Depositor to the Trustee, on behalf of the Trust and for the benefit
of
the Certificateholders.
SECTION
12.10. Survival
of Indemnification.
Any
and
all indemnities to be provided by any party to this Agreement shall survive
the
termination and resignation of any party hereto and the termination of this
Agreement.
SECTION
12.11. Intention
of the Parties and Interpretation.
Each of
the parties acknowledges and agrees that the purpose of Sections 3.17, 3.18,
3.19, 4.15, 4.16, 4.17, 4.18 and 5.06 of this Agreement is to facilitate
compliance by the Sponsor, the Master Servicer, the Securities Administrator
and
the Depositor with the provisions of Regulation AB promulgated by the SEC under
the Exchange Act (17 C.F.R. §§ 229.1100 - 229.1123), as such may be amended from
time to time and subject to clarification and interpretive advice as may be
issued by the staff of the SEC from time to time. Therefore, each of the parties
agrees that (a) the obligations of the parties hereunder shall be interpreted
in
such a manner as to accomplish that purpose, (b) the parties’ obligations
hereunder will be supplemented and modified as necessary to be consistent with
any such amendments, interpretive advice or guidance, convention or consensus
among active participants in the asset-backed securities markets, advice of
counsel, or otherwise in respect of the requirements of Regulation AB, (c)
the
parties shall comply with requests made by the Sponsor or the Depositor for
delivery of additional or different information as the Sponsor or the Depositor
may determine in good faith is necessary to comply with the provisions of
Regulation AB, and (d) no amendment of this Agreement shall be required to
effect any such changes in the parties’ obligations as are necessary to
accommodate evolving interpretations of the provisions of Regulation
AB.
IN
WITNESS WHEREOF, the Depositor, the Servicers, the Master Servicer, the
Securities Administrator and the Trustee have caused their names to be signed
hereto by their respective officers thereunto duly authorized, in each case
as
of the day and year first above written.
ACE
SECURITIES CORP.,
as
Depositor
By:
___________________________
Name:
Title:
By:
___________________________
Name:
Title:
OCWEN
LOAN SERVICING, LLC
as
a
Servicer
By:
___________________________
Name:
Title:
GMAC
MORTGAGE CORPORATION
as
a
Servicer
By:
___________________________
Name:
Title:
HSBC
BANK
USA, NATIONAL ASSOCIATION
not
in
its individual capacity but solely as Trustee
By:
___________________________
Name:
Title:
▇▇▇▇▇
FARGO BANK, N.A.
as
Master
Servicer and Securities Administrator
By:
___________________________
Name:
Title:
Acknowledged
and Agreed for purposes of Section 7.11 and Section
9.05:
DB
STRUCTURED PRODUCTS, INC.
By:
___________________________
Name:
Title:
By:
___________________________
Name:
Title:
Acknowledged
and Agreed for purposes of Section 7.08, 7.09 and
7.10:
▇▇▇▇▇▇▇
FIXED INCOME SERVICES INC.
By:
___________________________
Name:
Title:
|
STATE
OF
|
)
|
|
)
ss.:
|
|
|
COUNTY
OF
|
)
|
On
the
___ day of January 2006, before me, a notary public in and for said State,
personally appeared _____________________ known to me to be a
_____________________ of ACE Securities Corp., one of the corporations that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
|
Notary
Public
|
[Notarial
Seal] My
commission expires
|
STATE
OF
|
)
|
|
)
ss.:
|
|
|
COUNTY
OF
|
)
|
On
the
___ day of January 2006, before me, a notary public in and for said State,
personally appeared _____________________ known to me to be a
_____________________ of ACE Securities Corp., one of the corporations that
executed the within instrument, and also known to me to be the person who
executed it on behalf of said corporation, and acknowledged to me that such
corporation executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
|
Notary
Public
|
[Notarial
Seal] My
commission expires
|
STATE
OF
|
)
|
|
)
ss.:
|
|
|
COUNTY
OF
|
)
|
On
the
___ day of January 2006, before me, a notary public in and for said State,
personally appeared _____________________ known to me to be a
_____________________ of Ocwen Loan Servicing, LLC, one of the limited liability
companies that executed the within instrument, and also known to me to be the
person who executed it on behalf of said limited liability company, and
acknowledged to me that such federally chartered savings bank 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] My
commission expires
|
STATE
OF
|
)
|
|
)
ss.:
|
|
|
COUNTY
OF
|
)
|
On
the
___ day of January 2006, before me, a notary public in and for said State,
personally appeared _____________________ known to me to be a
_____________________ of GMAC Mortgage Corporation, one of the limited
partnerships that executed the within instrument, and also known to me to be
the
person who executed it on behalf of said corporation, and acknowledged to me
that such limited partnership 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] My
commission expires
|
STATE
OF
|
)
|
|
)
ss.:
|
|
|
COUNTY
OF
|
)
|
On
the
___ day of January 2006, before me, a notary public in and for said State,
personally appeared _____________________ known to me to be a
_____________________ of ▇▇▇▇▇ Fargo Bank, N.A., one of the national banking
associations that executed the within instrument, and also known to me to be
the
person who executed it on behalf of said national banking association, and
acknowledged to me that such national banking association executed the within
instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
|
Notary
Public
|
[Notarial
Seal] My
commission expires
|
STATE
OF
|
)
|
|
)
ss.:
|
|
|
COUNTY
OF
|
)
|
On
the
___ day of January 2006, before me, a notary public in and for said State,
personally appeared _____________________ known to me to be a
_____________________ of HSBC Bank USA, National Association, one of the
national banking associations that executed the within instrument, and also
known to me to be the person who executed it on behalf of said national banking
association, and acknowledged to me that such national banking association
executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
|
Notary
Public
|
[Notarial
Seal] My
commission expires
EXHIBIT
A-1
FORM
OF
CLASS A CERTIFICATE
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (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.
PRIOR
TO THE TERMINATION OF THE SUPPLEMENTAL INTEREST TRUST, ANY PERSON ACQUIRING
A
CERTIFICATE DIRECTLY OR INDIRECTLY BY, ON BEHALF OF, OR WITH PLAN ASSETS
OF AN
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT TO
TITLE I
OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR SECTION
4975 OF THE CODE, SHALL BE DEEMED TO HAVE MADE THE REPRESENTATIONS IN SECTION
6.02(c) OF THE POOLING AND SERVICING AGREEMENT.
|
Series
2006-SL1, Class A
|
Aggregate
Certificate Principal Balance of the Class A Certificates as of
the Issue
Date: $_____________
|
|
|
Pass-Through
Rate: Variable
|
Denomination:
$____________
|
|
|
Date
of Pooling and Servicing Agreement and Cut-off Date: January 1,
2006
|
Master
Servicer: ▇▇▇▇▇ Fargo Bank, N.A.
|
|
|
First
Distribution Date: February 25, 2006
|
Trustee:
HSBC Bank USA, National Association
|
|
|
No.__
|
Issue
Date: January 27, 2006
|
|
|
CUSIP:________________
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY
BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
ASSET
BACKED PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a Trust Fund (the “Trust Fund”) consisting
primarily of a pool of conventional one- to four-family, fixed-rate second
lien
mortgage loans (the “Mortgage Loans”) formed and sold by
ACE
SECURITIES CORP.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN ACE SECURITIES
CORP., THE MASTER SERVICER, THE SECURITIES ADMINISTRATOR, THE SERVICERS,
THE
TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR
THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY
OF THE
UNITED STATES.
This
certifies that ________________ is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the aggregate
Certificate Principal Balance of the Class A Certificates as of the Issue
Date)
in that certain beneficial ownership interest evidenced by all of the Class
A
Certificates in REMIC III created pursuant to a Pooling and Servicing Agreement,
dated as specified above (the “Agreement”), among ACE Securities Corp., as
depositor (hereinafter called the “Depositor”, which term includes any successor
entity under the Agreement), ▇▇▇▇▇ Fargo Bank, N.A. as master servicer (the
“Master Servicer”) and securities administrator (the “Securities
Administrator”), GMAC Mortgage Corporation as a servicer (“GMAC”), Ocwen Loan
Servicing, LLC as a servicer (“Ocwen,” together with GMAC, each a “Servicer” and
together the “Servicers”) and HSBC Bank USA, National Association as trustee
(the “Trustee”), a summary of certain of the pertinent provisions of which is
set forth hereafter. To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Agreement. This Certificate
is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of
the
acceptance hereof assents and by which such Holder is bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following such 25th
day (a
“Distribution Date”), commencing on the First Distribution Date specified above,
to the Person in whose name this Certificate is registered on the Business
Day
immediately preceding such Distribution Date (the “Record Date”), in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to the Holders of Class A Certificates
on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will
be made
or caused to be made by the Securities Administrator by wire transfer in
immediately available funds to the account of the Person entitled thereto
if
such Person shall have so notified the Securities Administrator in writing
at
least five (5) Business Days prior to the Record Date immediately prior to
such
Distribution Date and is the registered owner of Class A Certificates the
aggregate initial Certificate Principal Balance of which is in excess of
the
lesser of (i) $5,000,000 or (ii) two-thirds of the aggregate initial Certificate
Principal Balance of the Class A Certificates, or otherwise by check mailed
by
first class mail to the address of the Person entitled thereto, as such name
and
address shall appear on the Certificate Register. Notwithstanding the above,
the
final distribution on this Certificate will be made after due notice by the
Securities Administrator of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency appointed
by the Securities Administrator for that purpose as provided in the
Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable with
respect
to this Certificate on any Distribution Date shall be a rate per annum equal
to
the lesser of (i) One-Month LIBOR plus [_____]%, in the case of each
Distribution Date through and including the Distribution Date on which the
aggregate principal balance of the Mortgage Loans (and properties acquired
in
respect thereof) remaining in the Trust Fund is reduced to less than or equal
to
10% of the aggregate principal balance of the Mortgage Loans as of the Cut-off
Date, or One-Month LIBOR plus [_____]%, in the case of any Distribution Date
thereafter and (ii) the applicable Net WAC Pass-Through Rate for such
Distribution Date.
This
Certificate is one of a duly authorized issue of Certificates designated
as
Asset Backed Pass-Through Certificate of the Series specified on the face
hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate Principal
Balance of the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans and payments received pursuant to
the
Swap Agreement, all as more specifically set forth herein and in the Agreement.
As provided in the Agreement, withdrawals from the Collection Accounts and
the
Distribution Account may be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the Mortgage
Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Trustee, the Securities Administrator, the Servicers
and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Trustee, the Securities Administrator
and
the Servicers with the consent of the Swap Provider and the Holders of
Certificates entitled to at least 66% of the Voting Rights. Any such consent
by
the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange herefor or in lieu hereof whether
or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without
the
consent of the Holders of any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices
or
agencies appointed by the Securities Administrator as provided in the Agreement,
duly endorsed by, or accompanied by an assignment in the form below or other
written instrument of transfer in form satisfactory to the Securities
Administrator duly executed by, the Holder hereof or such Holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the
same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or
transferees.
Prior
to
the termination of the Supplemental Interest Trust, any transfer of this
Certificate to a Plan subject to ERISA or Section 4975 of the Code, any Person
acting, directly or indirectly, on behalf of any such Plan or any person
using
Plan Assets to acquire this Certificate by its acceptance thereof shall be
deemed to make the representations in Section 6.02(c) of the
Agreement.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in
the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates
of the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
No
service charge will be made for any such registration of transfer or exchange
of
Certificates, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in
connection with any transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trustee, the Securities Administrator,
the
Servicers and any agent of the Depositor, the Master Servicer, the Trustee,
the
Securities Administrator or a Servicer may treat the Person in whose name
this
Certificate is registered as the owner hereof for all purposes, and none
of the
Depositor, the Master Servicer, the Trustee, the Securities Administrator,
the
Servicers nor any such agent shall be affected by notice to the
contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Securities Administrator and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining
in
REMIC I and (ii) the purchase by the party designated in the Agreement at
a
price determined as provided in the Agreement from REMIC I of all the Mortgage
Loans and all property acquired in respect of such Mortgage Loans. The Agreement
permits, but does not require, the party designated in the Agreement to purchase
from REMIC I all the Mortgage Loans and all property acquired in respect
of any
Mortgage Loan at a price determined as provided in the Agreement. The exercise
of such right will effect early retirement of the Certificates; however,
such
right to purchase is subject to the aggregate Scheduled Principal Balance
of the
Mortgage Loans (and properties acquired in respect thereof) at the time of
purchase being less than or equal to 10% of the aggregate principal balance
of
the Mortgage Loans as of the Cut-off Date.
The
recitals contained herein shall be taken as statements of the Depositor and
neither the Trustee nor the Securities Administrator assumes any responsibility
for their correctness.
Unless
the certificate of authentication hereon has been executed by the Securities
Administrator, by manual signature, this Certificate shall not be entitled
to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Securities Administrator has caused this Certificate
to be
duly executed.
Dated:
|
▇▇▇▇▇
FARGO BANK, N.A.
as
Securities Administrator
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Officer
|
|||||||||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Class A Certificates referred to in the within-mentioned
Agreement.
|
▇▇▇▇▇
FARGO BANK, N.A.
as
Securities Administrator
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory
|
|||||||||||||
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
|
TEN
COM -
|
as
tenants in common
|
UNIF
GIFT MIN ACT -
|
Custodian
_______________
(Cust)
(Minor)
under
Uniform Gifts
to
Minors Act
|
|
TEN
ENT -
|
as
tenants by the entireties
|
________________
(State)
|
|
|
JT
TEN -
|
as
joint tenants with right
if
survivorship and not as
tenants
in common
|
||
|
Additional
abbreviations may also be used though not in the above
list.
|
|||
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
a
Percentage Interest equal to ____%
evidenced by the within Asset Backed Pass-Through Certificate and hereby
authorize(s) the registration of transfer of such interest to assignee on
the
Certificate Register of the Trust Fund.
I
(we)
further direct the Securities Administrator to issue a new Certificate of
a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
________________________________________________
|
.
|
|
Dated:
|
|
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-2A
FORM
OF
CLASS M-[1A][2][3] CERTIFICATE
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY TO THE DEPOSITOR OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF
CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON
IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES TO THE EXTENT DESCRIBED
IN THE AGREEMENT REFERRED TO HEREIN. THIS CERTIFICATE IS SUBORDINATE TO THE
CLASS A CERTIFICATES [[,/AND] CLASS M-1A CERTIFICATES, CLASS M-1B CERTIFICATES
[,/AND] CLASS M-2 CERTIFICATES TO THE EXTENT DESCRIBED IN THE AGREEMENT REFERRED
TO HEREIN.
ANY
TRANSFEREE OF THIS CERTIFICATE SHALL BE DEEMED TO MAKE THE REPRESENTATIONS
SET
FORTH IN SECTION 6.02(c) OF THE AGREEMENT REFERRED TO
HEREIN.
THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DECREASED BY THE
PRINCIPAL PAYMENTS HEREON AND REALIZED LOSSES ALLOCABLE HERETO AS DESCRIBED
IN
THE AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE
OF
THE CERTIFICATES, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL
BE
DIFFERENT FROM THE DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE
MAY ASCERTAIN ITS CERTIFICATE PRINCIPAL BALANCE BY INQUIRY OF THE SECURITIES
ADMINISTRATOR NAMED HEREIN.
|
Series
2006-SL1, Class M-[1A][2][3]
|
Aggregate
Certificate Principal Balance of the Class M-[1A][2][3] Certificates
as of
the Issue Date: $______________
|
|
|
Pass-Through
Rate: Fixed
|
Denomination:
$______________
|
|
|
Date
of Pooling and Servicing Agreement
and
Cut-off Date: January 1, 2006
|
Master
Servicer: ▇▇▇▇▇ Fargo Bank, N.A.
|
|
|
First
Distribution Date: February 25, 2006
|
Trustee:
HSBC Bank USA, National Association
|
|
|
No.___
|
Issue
Date: January 27, 2006
|
|
|
CUSIP:_________________
|
ASSET
BACKED PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a Trust Fund (the “Trust Fund”) consisting
primarily of a pool of conventional one- to four-family, fixed -rate second
lien
mortgage loans (the “Mortgage Loans”) formed and sold by
ACE
SECURITIES CORP.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN ACE SECURITIES
CORP., THE MASTER SERVICER, THE SECURITIES ADMINISTRATOR, THE SERVICERS,
THE
TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR
THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY
OF THE
UNITED STATES.
This
certifies that _____________________ is the registered owner of a Percentage
Interest (obtained by dividing the denomination of this Certificate by the
aggregate Certificate Principal Balance of the Class M-[1A][2][3] Certificates
as of the Issue Date) in that certain beneficial ownership interest evidenced
by
all the Class M-[1A][2][3] Certificates in REMIC III created pursuant to
a
Pooling and Servicing Agreement, dated as specified above (the “Agreement”),
among ACE Securities Corp., as depositor (hereinafter called the “Depositor”,
which term includes any successor entity under the Agreement), ▇▇▇▇▇ Fargo
Bank,
N.A. as master servicer (the “Master Servicer”) and securities administrator
(the “Securities Administrator”), GMAC Mortgage Corporation as a servicer
(“GMAC”), Ocwen Loan Servicing, LLC as a servicer (“Ocwen,” together with GMAC,
each a “Servicer” and together the “Servicers”) and HSBC Bank USA, National
Association, as trustee (the “Trustee”), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions
and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is
bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following such 25th
day (a
“Distribution Date”), commencing on the First Distribution Date specified above,
to the Person in whose name this Certificate is registered on the last Business
Day of the month immediately preceding the month in which such Distribution
Date
occurs (the “Record Date”), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of Class M-[1A][2][3] Certificates on such Distribution Date
pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will
be made
or caused to be made by the Securities Administrator by wire transfer in
immediately available funds to the account of the Person entitled thereto
if
such Person shall have so notified the Securities Administrator in writing
at
least five (5) Business Days prior to the Record Date immediately prior to
such
Distribution Date and is the registered owner of Class M-[1A][2][3] Certificates
the aggregate initial Certificate Principal Balance of which is in excess
of the
lesser of (i) $5,000,000 or (ii) two-thirds of the aggregate initial Certificate
Principal Balance of the Class M-[1A][2][3] Certificates, or otherwise by
check
mailed by first class mail to the address of the Person entitled thereto,
as
such name and address shall appear on the Certificate Register. Notwithstanding
the above, the final distribution on this Certificate will be made after
due
notice by the Securities Administrator of the pendency of such distribution
and
only upon presentation and surrender of this Certificate at the office or
agency
appointed by the Securities Administrator for that purpose as provided in
the
Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable with
respect
to this Certificate on any Distribution Date shall equal a rate per annum
equal
to the lesser of (i) [____]% in the case of each Distribution Date through
and including the Distribution Date on which the aggregate principal balance
of
the Mortgage Loans (and properties acquired in respect thereof) remaining
in the
Trust Fund is reduced to less than or equal to 10% of the aggregate principal
balance of the Mortgage Loans as of the Cut-off Date, or [_____]%, in the
case
of any Distribution Date thereafter and (ii) the applicable Net WAC Pass-Through
Rate for such Distribution Date.
This
Certificate is one of a duly authorized issue of Certificates designated
as
Asset Backed Pass-Through Certificate of the Series specified on the face
hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate Principal
Balance of the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans and payments received pursuant to
the
Swap Agreement, all as more specifically set forth herein and in the Agreement.
As provided in the Agreement, withdrawals from the Collection Accounts and
the
Distribution Account may be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the Mortgage
Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Trustee, the Securities Administrator, the Servicers
and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Trustee, the Securities Administrator
and
the Servicers with the consent of the Swap Provider and the Holders of
Certificates entitled to at least 66% of the Voting Rights. Any such consent
by
the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange herefor or in lieu hereof whether
or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without
the
consent of the Holders of any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices
or
agencies appointed by the Securities Administrator as provided in the Agreement,
duly endorsed by, or accompanied by an assignment in the form below or other
written instrument of transfer in form satisfactory to the Securities
Administrator duly executed by, the Holder hereof or such Holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the
same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or
transferees.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in
the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates
of the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
Any
transferee of this Certificate shall be deemed to make the representations
set
forth in Section 6.02(c) of the Agreement.
No
service charge will be made for any such registration of transfer or exchange
of
Certificates, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in
connection with any transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trustee, the Securities Administrator,
the
Servicers and any agent of the Depositor, the Master Servicer, the Trustee,
the
Securities Administrator or a Servicer may treat the Person in whose name
this
Certificate is registered as the owner hereof for all purposes, and none
of the
Depositor, the Master Servicer, the Trustee, the Securities Administrator,
the
Servicers nor any such agent shall be affected by notice to the
contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Securities Administrator and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining
in
REMIC I and (ii) the purchase by the party designated in the Agreement at
a
price determined as provided in the Agreement from REMIC I of all the Mortgage
Loans and all property acquired in respect of such Mortgage Loans. The Agreement
permits, but does not require, the party designated in the Agreement to purchase
from REMIC I all the Mortgage Loans and all property acquired in respect
of any
Mortgage Loan at a price determined as provided in the Agreement. The exercise
of such right will effect early retirement of the Certificates; however,
such
right to purchase is subject to the aggregate Scheduled Principal Balance
of the
Mortgage Loans (and properties acquired in respect thereof) at the time of
purchase being less than or equal to 10% of the aggregate principal balance
of
the Mortgage Loans as of the Cut-off Date.
The
recitals contained herein shall be taken as statements of the Depositor and
neither the Trustee nor the Securities Administrator assume any responsibility
for their correctness.
Unless
the certificate of authentication hereon has been executed by the Securities
Administrator by manual signature, this Certificate shall not be entitled
to any
benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Securities Administrator has caused this Certificate
to be
duly executed.
Dated:
|
▇▇▇▇▇
FARGO BANK, N.A.
as
Securities Administrator
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Officer
|
|||||||||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Class M-[1A][2][3]Certificates referred to in the within-mentioned
Agreement.
|
▇▇▇▇▇
FARGO BANK, N.A.
as
Securities Administrator
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory
|
|||||||||||||
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
|
TEN
COM -
|
as
tenants in common
|
UNIF
GIFT MIN ACT -
|
Custodian
_____________
(Cust)
(Minor)
under
Uniform Gifts
to
Minors Act
|
|
TEN
ENT -
|
as
tenants by the entireties
|
________________
(State)
|
|
|
JT
TEN -
|
as
joint tenants with right
if
survivorship and not as
tenants
in common
|
||
|
Additional
abbreviations may also be used though not in the above
list.
|
|||
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
a
Percentage Interest equal to _____% evidenced by the within Asset Backed
Pass-Through Certificate and hereby authorize(s) the registration of transfer
of
such interest to assignee on the Certificate Register of the Trust
Fund.
I
(we)
further direct the Securities Administrator to issue a new Certificate of
a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
______________________________________________________________
|
.
|
|
Dated:
|
|
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-2B
FORM
OF
CLASS M-[1B][4][5][6][7][8][9] CERTIFICATE
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY TO THE DEPOSITOR OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF
CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON
IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES [[,/AND] CLASS M-1A
CERTIFICATES [,/AND], CLASS M-1B CERTIFICATES [,/AND] CLASS M-2 CERTIFICATES
[,/AND] CLASS M-3 CERTIFICATES [,/AND] CLASS M-4 CERTIFICATES [,/AND] CLASS
M-5
CERTIFICATES] [,/AND] CLASS M-6 CERTIFICATES [,/AND] CLASS M-7 CERTIFICATES
[,/AND] CLASS M-8 CERTIFICATES TO THE EXTENT DESCRIBED IN THE AGREEMENT REFERRED
TO HEREIN.
ANY
TRANSFEREE OF THIS CERTIFICATE SHALL BE DEEMED TO MAKE THE REPRESENTATIONS
SET
FORTH IN SECTION 6.02(c) OF THE AGREEMENT REFERRED TO
HEREIN.
THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DECREASED BY THE
PRINCIPAL PAYMENTS HEREON AND REALIZED LOSSES ALLOCABLE HERETO AS DESCRIBED
IN
THE AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE
OF
THE CERTIFICATES, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL
BE
DIFFERENT FROM THE DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE
MAY ASCERTAIN ITS CERTIFICATE PRINCIPAL BALANCE BY INQUIRY OF THE SECURITIES
ADMINISTRATOR NAMED HEREIN.
|
Series
2006-SL1, Class M-[1B][4][5][6][7][8][9]
|
Aggregate
Certificate Principal Balance of the Class M--[1B][4][5][6][7][8][9]
Certificates as of the Issue Date: $______________
|
|
|
Pass-Through
Rate: Variable
|
Denomination:
$______________
|
|
|
Date
of Pooling and Servicing Agreement
and
Cut-off Date: January 1, 2006
|
Master
Servicer: ▇▇▇▇▇ Fargo Bank, N.A.
|
|
|
First
Distribution Date: February 25, 2006
|
Trustee:
HSBC Bank USA, National Association
|
|
|
No.___
|
Issue
Date: January 27, 2006
|
|
|
CUSIP:_________________
|
ASSET
BACKED PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a Trust Fund (the “Trust Fund”) consisting
primarily of a pool of conventional one- to four-family, fixed -rate second
lien
mortgage loans (the “Mortgage Loans”) formed and sold by
ACE
SECURITIES CORP.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN ACE SECURITIES
CORP., THE MASTER SERVICER, THE SECURITIES ADMINISTRATOR, THE SERVICERS,
THE
TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR
THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY
OF THE
UNITED STATES.
This
certifies that _____________________ is the registered owner of a Percentage
Interest (obtained by dividing the denomination of this Certificate by the
aggregate Certificate Principal Balance of the Class M-[1B][4][5][6][7][8][9]
Certificates as of the Issue Date) in that certain beneficial ownership interest
evidenced by all the Class M-[1B][4][5][6][7][8][9] Certificates in REMIC
III
created pursuant to a Pooling and Servicing Agreement, dated as specified
above
(the “Agreement”), among ACE Securities Corp., as depositor (hereinafter called
the “Depositor”, which term includes any successor entity under the Agreement),
▇▇▇▇▇ Fargo Bank, N.A. as master servicer (the “Master Servicer”) and securities
administrator (the “Securities Administrator”), GMAC Mortgage Corporation as a
servicer ( “GMAC”), Ocwen Loan Servicing, LLC as a servicer (“Ocwen,” together
with GMAC, each a “Servicer” and together the “Servicers”) and HSBC Bank USA,
National Association, as trustee (the “Trustee”), a summary of certain of the
pertinent provisions of which is set forth hereafter. To the extent not defined
herein, the capitalized terms used herein have the meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder
of
this Certificate by virtue of the acceptance hereof assents and by which
such
Holder is bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following such 25th
day (a
“Distribution Date”), commencing on the First Distribution Date specified above,
to the Person in whose name this Certificate is registered on the last Business
Day of the month immediately preceding the month in which such Distribution
Date
occurs (the “Record Date”), in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to the Holders of Class M-[1B][4][5][6][7][8][9] Certificates on such
Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will
be made
or caused to be made by the Securities Administrator by wire transfer in
immediately available funds to the account of the Person entitled thereto
if
such Person shall have so notified the Securities Administrator in writing
at
least five (5) Business Days prior to the Record Date immediately prior to
such
Distribution Date and is the registered owner of Class M-[1B][4][5][6][7][8][9]
Certificates the aggregate initial Certificate Principal Balance of which
is in
excess of the lesser of (i) $5,000,000 or (ii) two-thirds of the aggregate
initial Certificate Principal Balance of the Class M-[1B][4][5][6][7][8][9]
Certificates, or otherwise by check mailed by first class mail to the address
of
the Person entitled thereto, as such name and address shall appear on the
Certificate Register. Notwithstanding the above, the final distribution on
this
Certificate will be made after due notice by the Securities Administrator
of the
pendency of such distribution and only upon presentation and surrender of
this
Certificate at the office or agency appointed by the Securities Administrator
for that purpose as provided in the Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable with
respect
to this Certificate on any Distribution Date shall equal a rate per annum
equal
to the lesser of (i) One-Month LIBOR plus [____]%, in the case of each
Distribution Date through and including the Distribution Date on which the
aggregate principal balance of the Mortgage Loans (and properties acquired
in
respect thereof) remaining in the Trust Fund is reduced to less than or equal
to
10% of the aggregate principal balance of the Mortgage Loans as of the Cut-off
Date, or One-Month LIBOR plus [____]%, in the case of any Distribution Date
thereafter and (ii) the applicable Net WAC Pass-Through Rate for such
Distribution Date.
This
Certificate is one of a duly authorized issue of Certificates designated
as
Asset Backed Pass-Through Certificate of the Series specified on the face
hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate Principal
Balance of the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans and payments received pursuant to
the
Swap Agreement, all as more specifically set forth herein and in the Agreement.
As provided in the Agreement, withdrawals from the Collection Accounts and
the
Distribution Account may be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the Mortgage
Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Trustee, the Securities Administrator, the Servicers
and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Trustee, the Securities Administrator
and
the Servicers with the consent of the Swap Provider and the Holders of
Certificates entitled to at least 66% of the Voting Rights. Any such consent
by
the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange herefor or in lieu hereof whether
or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without
the
consent of the Holders of any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices
or
agencies appointed by the Securities Administrator as provided in the Agreement,
duly endorsed by, or accompanied by an assignment in the form below or other
written instrument of transfer in form satisfactory to the Securities
Administrator duly executed by, the Holder hereof or such Holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the
same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or
transferees.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in
the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates
of the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
Any
transferee of this Certificate shall be deemed to make the representations
set
forth in Section 6.02(c) of the Agreement.
No
service charge will be made for any such registration of transfer or exchange
of
Certificates, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in
connection with any transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trustee, the Securities Administrator,
the
Servicers and any agent of the Depositor, the Master Servicer, the Trustee,
the
Securities Administrator or a Servicer may treat the Person in whose name
this
Certificate is registered as the owner hereof for all purposes, and none
of the
Depositor, the Master Servicer, the Trustee, the Securities Administrator,
the
Servicers nor any such agent shall be affected by notice to the
contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Securities Administrator and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining
in
REMIC I and (ii) the purchase by the party designated in the Agreement at
a
price determined as provided in the Agreement from REMIC I of all the Mortgage
Loans and all property acquired in respect of such Mortgage Loans. The Agreement
permits, but does not require, the party designated in the Agreement to purchase
from REMIC I all the Mortgage Loans and all property acquired in respect
of any
Mortgage Loan at a price determined as provided in the Agreement. The exercise
of such right will effect early retirement of the Certificates; however,
such
right to purchase is subject to the aggregate Scheduled Principal Balance
of the
Mortgage Loans (and properties acquired in respect thereof) at the time of
purchase being less than or equal to 10% of the aggregate principal balance
of
the Mortgage Loans as of the Cut-off Date.
The
recitals contained herein shall be taken as statements of the Depositor and
neither the Trustee nor the Securities Administrator assume any responsibility
for their correctness.
Unless
the certificate of authentication hereon has been executed by the Securities
Administrator by manual signature, this Certificate shall not be entitled
to any
benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Securities Administrator has caused this Certificate
to be
duly executed.
Dated:
|
▇▇▇▇▇
FARGO BANK, N.A.
as
Securities Administrator
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Officer
|
|||||||||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Class M-[1B][4][5][6][7][8][9] Certificates referred to in the
within-mentioned Agreement.
|
▇▇▇▇▇
FARGO BANK, N.A.
as
Securities Administrator
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory
|
|||||||||||||
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
|
TEN
COM -
|
as
tenants in common
|
UNIF
GIFT MIN ACT -
|
Custodian
_____________
(Cust)
(Minor)
under
Uniform Gifts
to
Minors Act
|
|
TEN
ENT -
|
as
tenants by the entireties
|
________________
(State)
|
|
|
JT
TEN -
|
as
joint tenants with right
if
survivorship and not as
tenants
in common
|
||
|
Additional
abbreviations may also be used though not in the above
list.
|
|||
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
a
Percentage Interest equal to _____% evidenced by the within Asset Backed
Pass-Through Certificate and hereby authorize(s) the registration of transfer
of
such interest to assignee on the Certificate Register of the Trust
Fund.
I
(we)
further direct the Securities Administrator to issue a new Certificate of
a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
______________________________________________________________
|
.
|
|
Dated:
|
|
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-3
FORM
OF
CLASS B-1 CERTIFICATE
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY TO THE DEPOSITOR OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF
CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON
IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS
CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO THE CLASS A CERTIFICATES
[,/AND] THE MEZZANINE CERTIFICATES, AS DESCRIBED IN THE AGREEMENT REFERRED
TO
HEREIN.
THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL BE DECREASED BY THE
PRINCIPAL PAYMENTS HEREON AND REALIZED LOSSES ALLOCABLE HERETO AS DESCRIBED
IN
THE AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE
OF
THE CERTIFICATES, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE WILL
BE
DIFFERENT FROM THE DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE
MAY ASCERTAIN ITS CERTIFICATE PRINCIPAL BALANCE BY INQUIRY OF THE SECURITIES
ADMINISTRATOR NAMED HEREIN.
THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE “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 ACT AND OTHER APPLICABLE LAWS AND (1) OUTSIDE OF THE
UNITED
STATES WITHIN THE MEANING OF AND IN COMPLIANCE WITH REGULATION S UNDER THE
ACT
(“REGULATION S”), OR (2) WITHIN THE UNITED STATES TO (A) “QUALIFIED
INSTITUTIONAL BUYERS” WITHIN THE MEANING OF AND IN COMPLIANCE WITH RULE 144A
UNDER THE ACT (“RULE 144A”) OR (B) TO INSTITUTIONAL INVESTORS THAT ARE
“ACCREDITED INVESTORS” WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF
“REGULATION D” UNDER THE ACT.
[THIS
CERTIFICATE IS A REGULATION S TEMPORARY GLOBAL CERTIFICATE FOR PURPOSES OF
REGULATION S UNDER THE ACT. PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE LATER
OF
(I) THE COMMENCEMENT OF THE OFFERING OF THE OFFERED CERTIFICATES AND (II)
THE
CLOSING DATE, THIS CERTIFICATE MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE ACT.]
[NO
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL CERTIFICATE SHALL
BE
ENTITLED TO RECEIVE PAYMENTS OF PRINCIPAL OR INTEREST HEREIN UNLESS THE REQUIRED
CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE AGREEMENT
(AS
DEFINED HEREIN).]
[THE
HOLDER OF THIS REGULATION S PERMANENT GLOBAL CERTIFICATE BY ITS ACCEPTANCE
HEREOF AGREES NOT TO OFFER, SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE WITHIN
THE UNITED STATES OR TO U.S. PERSONS (AS DEFINED IN REGULATION S UNDER THE
ACT)
PRIOR TO THE DATE WHICH IS THE LATER OF (I) 40 DAYS AFTER THE LATER OF THE
CLOSING DATE AND (II) THE DATE ON WHICH THE REQUISITE CERTIFICATIONS ARE
DUE TO
AND PROVIDED TO THE TRUSTEE AND SECURITIES ADMINISTRATOR PURSUANT TO THE
AGREEMENT (AS DEFINED BELOW), EXCEPT PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE ACT.]
NO
TRANSFER OF THIS CERTIFICATE TO A PLAN SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME
SECURITY ACT OF 1974, AS AMENDED (“ERISA”) OR SECTION 4975 OF THE CODE, ANY
PERSON ACTING, DIRECTLY OR INDIRECTLY, ON BEHALF OF ANY SUCH PLAN OR ANY
PERSON
USING “PLAN ASSETS” TO ACQUIRE THIS CERTIFICATE SHALL BE MADE EXCEPT IN
ACCORDANCE WITH SECTION 6.02(c) OF THE AGREEMENT.
|
Series
ACE 2006-SL1, Class B-1
|
Aggregate
Certificate Principal Balance of the Class B-1 Certificates as
of the
Issue Date: $_____________
|
|
|
Pass-Through
Rate: Variable
|
Denomination:
$______________
|
|
|
Date
of Pooling and Servicing Agreement
and
Cut-off Date: January 1, 2006
|
Master
Servicer: ▇▇▇▇▇ Fargo Bank, N.A.
|
|
|
First
Distribution Date: February 25, 2006
|
Trustee:
HSBC Bank USA, National Association
|
|
|
No.
______
|
Issue
Date: January 27, 2006
|
|
|
CUSIP:
______________
|
ASSET
BACKED PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a Trust Fund (the “Trust Fund”) consisting
primarily of a pool of conventional one- to four-family, fixed -rate second
lien
mortgage loans (the “Mortgage Loans”) formed and sold by
ACE
SECURITIES CORP.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN ACE SECURITIES
CORP., THE MASTER SERVICER, THE SECURITIES ADMINISTRATOR, THE SERVICERS,
THE
TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR
THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY
OF THE
UNITED STATES.
This
certifies that _______________ is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the aggregate
Certificate Principal Balance of the Class B-1 Certificates as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the
Class
B-1 Certificates in REMIC III created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among ACE Securities
Corp., as depositor (hereinafter called the “Depositor”, which term includes any
successor entity under the Agreement), ▇▇▇▇▇ Fargo Bank, N.A. as master servicer
(the “Master Servicer”) and securities administrator (the “Securities
Administrator”), GMAC Mortgage Corporation as a servicer (“GMAC”), Ocwen Loan
Servicing, LLC as a servicer (“Ocwen,” together with GMAC, each a “Servicer” and
together the “Servicers”) and HSBC Bank USA, National Association, as trustee
(the “Trustee”), a summary of certain of the pertinent provisions of which is
set forth hereafter. To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Agreement. This Certificate
is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of
the
acceptance hereof assents and by which such Holder is bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following such 25th
day (a
“Distribution Date”), commencing on the First Distribution Date specified above,
to the Person in whose name this Certificate is registered at the close of
business on the Business Day immediately preceding such Distribution Date
(the
“Record Date”), in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed to
the
Holders of Class B-1 Certificates on such Distribution Date pursuant to the
Agreement.
All
distributions to the Holder of this Certificate under the Agreement will
be made
or caused to be made by the Securities Administrator by wire transfer in
immediately available funds to the account of the Person entitled thereto
if
such Person shall have so notified the Securities Administrator in writing
at
least five (5) Business Days prior to the Record Date immediately prior to
such
Distribution Date and is the registered owner of Class B-1 Certificates the
aggregate initial Certificate Principal Balance of which is in excess of
the
lesser of (i) $5,000,000 or (ii) two-thirds of the aggregate initial Certificate
Principal Balance of the Class B-1 Certificates, or otherwise by check mailed
by
first class mail to the address of the Person entitled thereto, as such name
and
address shall appear on the Certificate Register. Notwithstanding the above,
the
final distribution on this Certificate will be made after due notice by the
Securities Administrator of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency appointed
by the Securities Administrator for that purpose as provided in the
Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable with
respect
to this Certificate on any Distribution Date shall equal a rate per annum
equal
to the lesser of (i) One-Month LIBOR plus [____]%, in the case of each
Distribution Date through and including the Distribution Date on which the
aggregate principal balance of the Mortgage Loans (and properties acquired
in
respect thereof) remaining in the Trust Fund is reduced to less than or equal
to
10% of the aggregate principal balance of the Mortgage Loans as of the Cut-off
Date, or One-Month LIBOR plus [____]%, in the case of any Distribution Date
thereafter and (ii) the applicable Net WAC Pass-Through Rate for such
Distribution Date.
This
Certificate is one of a duly authorized issue of Certificates designated
as
Asset Backed Pass-Through Certificates of the Series specified on the face
hereof (herein called the “Certificates”) and representing a Percentage Interest
in the Class of Certificates specified on the face hereof equal to the
denomination specified on the face hereof divided by the aggregate Certificate
Principal Balance of the Class of Certificates specified on the face
hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans and payments received pursuant to
the
Swap Agreement, all as more specifically set forth herein and in the Agreement.
As provided in the Agreement, withdrawals from the Collection Accounts and
the
Distribution Account may be made from time to time for purposes other than
distributions to Certificateholders, such purposes including reimbursement
of
advances made, or certain expenses incurred, with respect to the Mortgage
Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Trustee, the Securities Administrator, the Servicers
and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Trustee, the Securities Administrator
and
the Servicers with the consent of the Swap Provider and the Holders of
Certificates entitled to at least 66% of the Voting Rights. Any such consent
by
the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange herefor or in lieu hereof whether
or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without
the
consent of the Holders of any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices
or
agencies appointed by the Securities Administrator as provided in the Agreement,
duly endorsed by, or accompanied by an assignment in the form below or other
written instrument of transfer in form satisfactory to the Securities
Administrator duly executed by, the Holder hereof or such Holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the
same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or
transferees.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in
the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates
of the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
No
service charge will be made for any such registration of transfer or exchange
of
Certificates, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in
connection with any transfer or exchange of Certificates.
No
transfer of this Certificate shall be made unless the transfer is made pursuant
to an effective registration statement under the Act, and an effective
registration or qualification under applicable state securities laws, or
is made
in a transaction that does not require such registration or qualification.
In
the event that such a transfer of this Certificate is to be made without
registration or qualification, the Securities Administrator shall require
receipt of (i) if such transfer is purportedly being made in reliance upon
Rule
144A or Regulation S under the 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 B-1, (ii) if such transfer is purportedly being made in reliance
upon
Rule 501(a) under the Act, written certifications from the Holder of the
Certificate desiring to effect the transfer and from such Holder’s prospective
transferee, substantially in the form attached to the Agreement as Exhibit
B-2
and (iii) in all other cases, an Opinion of Counsel satisfactory to it that
such
transfer may be made without such registration or qualification (which Opinion
of Counsel shall not be an expense of the Trust Fund or of the Depositor,
the
Trustee, the Master Servicer or the Securities Administrator 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. None
of the
Depositor, the Trustee or the Securities Administrator is obligated to register
or qualify the Class of Certificates specified on the face hereof under the
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, the Master Servicer
and the Securities Administrator against any liability that may result if
the
transfer is not so exempt or is not made in accordance with such federal
and
state laws.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any Person using “Plan Assets” to acquire this Certificate shall be made except
in accordance with Section 6.02(c) of the Agreement.
The
Depositor, the Master Servicer, the Trustee, the Securities Administrator,
the
Servicers and any agent of the Depositor, the Master Servicer, the Trustee,
the
Securities Administrator or a Servicer may treat the Person in whose name
this
Certificate is registered as the owner hereof for all purposes, and none
of the
Depositor, the Master Servicer, the Trustee, the Securities Administrator,
the
Servicers nor any such agent shall be affected by notice to the
contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Securities Administrator and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining
in
REMIC I and (ii) the purchase by the party designated in the Agreement at
a
price determined as provided in the Agreement from REMIC I of all the Mortgage
Loans and all property acquired in respect of such Mortgage Loans. The Agreement
permits, but does not require, the party designated in the Agreement to purchase
from REMIC I all the Mortgage Loans and all property acquired in respect
of any
Mortgage Loan at a price determined as provided in the Agreement. The exercise
of such right will effect early retirement of the Certificates; however,
such
right to purchase is subject to the aggregate Scheduled Principal Balance
of the
Mortgage Loans (and properties acquired in respect thereof) at the time of
purchase being less than or equal to 10% of the aggregate principal balance
of
the Mortgage Loans as of the Cut-off Date.
The
recitals contained herein shall be taken as statements of the Depositor and
neither the Trustee nor the Securities Administrator assume any responsibility
for their correctness.
Unless
the certificate of authentication hereon has been executed by the Securities
Administrator, by manual signature, this Certificate shall not be entitled
to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Securities Administrator has caused this Certificate
to be
duly executed.
Dated:
|
▇▇▇▇▇
FARGO BANK, N.A.
as
Securities Administrator
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Officer
|
|||||||||||||
CERTIFICATE OF AUTHENTICATION
This
is
one of the Class B-1 Certificates referred to in the within-mentioned
Agreement.
|
▇▇▇▇▇
FARGO BANK, N.A.
as
Securities Administrator
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory
|
|||||||||||||
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
a
Percentage Interest evidenced by the within Mortgage Pass-Through Certificate
and hereby authorizes the transfer of registration of such interest to assignee
on the Certificate Register of the Trust Fund.
I
(We)
further direct the Securities Administrator to issue a new Certificate of
a like
denomination and Class, to the above named assignee and deliver such Certificate
to the following address:
_____________________________________________________________
|
.
|
|
Dated:
|
|
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-4A
FORM
OF
CLASS CE-1 CERTIFICATE
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES, THE MEZZANINE
CERTIFICATES AND THE CLASS B-1 CERTIFICATES TO THE EXTENT DESCRIBED IN THE
AGREEMENT REFERRED TO HEREIN.
THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF
1933, AS AMENDED (THE “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 (1) OUTSIDE OF THE UNITED STATES
WITHIN THE MEANING OF AND IN COMPLIANCE WITH REGULATION S UNDER THE ACT
(“REGULATION S”), OR (2) WITHIN THE UNITED STATES TO (A) “QUALIFIED
INSTITUTIONAL BUYERS” WITHIN THE MEANING OF AND IN COMPLIANCE WITH RULE 144A
UNDER THE ACT (“RULE 144A”) OR (B) TO INSTITUTIONAL INVESTORS THAT ARE
“ACCREDITED INVESTORS” WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF
“REGULATION D” UNDER THE ACT.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS
AMENDED (“ERISA”), OR THE CODE WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
NO
TRANSFER OF THIS CERTIFICATE MAY BE MADE TO ANY PERSON, UNLESS THE TRANSFEREE
PROVIDES A CERTIFICATION PURSUANT TO SECTION 6.02(c) OF THE
AGREEMENT.
|
Series
2006-SL1, Class CE-1
|
Aggregate
Certificate Principal Balance of the Class CE-1 Certificates as
of the
Issue Date: $_____________
|
|
|
Pass-Through
Rate: Variable
|
Denomination:
$_________________
|
|
|
Cut-off
Date and date of Pooling and Servicing Agreement: January 1,
2006
|
Master
Servicer: ▇▇▇▇▇ Fargo Bank, N.A.
|
|
|
First
Distribution Date: February 25, 2006
|
Trustee:
HSBC Bank USA, National Association
|
|
|
No.
__
|
Issue
Date: January 27, 2006
|
ASSET
BACKED PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a Trust Fund (the “Trust Fund”) consisting
primarily of a pool of conventional one- to four-family, fixed-rate, second
lien
mortgage loans (the “Mortgage Loans”) formed and sold by
ACE
SECURITIES CORP.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN ACE SECURITIES
CORP., THE MASTER SERVICER, THE SECURITIES ADMINISTRATOR, THE SERVICERS,
THE
TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR
THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY
OF THE
UNITED STATES.
This
certifies that ________________ is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the aggregate
Certificate Principal Balance of the Class CE-1 Certificates as of the Issue
Date) in that certain beneficial ownership interest evidenced by all the
Class
CE-1 Certificates in REMIC III created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among ACE Securities
Corp., as depositor (hereinafter called the “Depositor,” which term includes any
successor entity under the Agreement), ▇▇▇▇▇
Fargo Bank, N.A. as master servicer (the “Master Servicer”) and securities
administrator (the “Securities Administrator”), GMAC Mortgage Corporation as a
servicer (“GMAC”), Ocwen Loan Servicing, LLC as a servicer (“Ocwen,” together
with GMAC, each a “Servicer” and together the “Servicers”) and HSBC Bank USA,
National Association, as trustee (the “Trustee”),
a
summary of certain of the pertinent provisions of which is set forth hereafter.
To the extent not defined herein, the capitalized terms used herein have
the
meanings assigned in the Agreement. This Certificate is issued under and
is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Interest
on this Certificate will accrue during the month prior to the month in which
a
Distribution Date (as hereinafter defined) occurs on the Notional Balance
hereof
at a per annum rate equal to the applicable Pass-Through Rate as set forth
in
the Agreement. Pursuant to the terms of the Agreement, distributions will
be
made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following such 25th
day (a
“Distribution Date”), commencing on the First Distribution Date specified above,
to the Person in whose name this Certificate is registered on the last Business
Day of the calendar month immediately preceding the month in which the related
Distribution Date occurs (the “Record Date”), in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class CE-1Certificates on such Distribution
Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will
be made
or caused to be made by the Securities Administrator by wire transfer in
immediately available funds to the account of the Person entitled thereto
if
such Person shall have so notified the Securities Administrator in writing
at
least five (5) Business Days prior to the Record Date immediately prior to
such
Distribution Date and is the registered owner of Class CE-1 Certificates
the
aggregate initial Certificate Principal Balance of which is in excess of
the
lesser of (i) $5,000,000 or (ii) two-thirds of the aggregate initial Certificate
Principal Balance of the Class CE-1 Certificates, or otherwise by check mailed
by first class mail to the address of the Person entitled thereto, as such
name
and address shall appear on the Certificate Register. Notwithstanding the
above,
the final distribution on this Certificate will be made after due notice
by the
Securities Administrator of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency appointed
by the Securities Administrator for that purpose as provided in the
Agreement.
This
Certificate is one of a duly authorized issue of Certificates designated
as
Asset Backed Pass-Through Certificate of the Series specified on the face
hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate Principal
Balance of the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Collection Accounts and the Distribution Account may be made from time to
time
for purposes other than distributions to Certificateholders, such purposes
including reimbursement of advances made, or certain expenses incurred, with
respect to the Mortgage Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Trustee, the Securities Administrator, the Servicers
and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Trustee, the Securities Administrator
and
the Servicers with the consent of the Swap Provider and the Holders of
Certificates entitled to at least 66% of the Voting Rights. Any such consent
by
the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange herefor or in lieu hereof whether
or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without
the
consent of the Holders of any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices
or
agencies appointed by the Securities Administrator as provided in the Agreement,
duly endorsed by, or accompanied by an assignment in the form below or other
written instrument of transfer in form satisfactory to the Securities
Administrator duly executed by, the Holder hereof or such Holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the
same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or
transferees.
No
transfer of this Certificate shall be made unless the transfer is made pursuant
to an effective registration statement under the Act, and an effective
registration or qualification under applicable state securities laws, or
is made
in a transaction that does not require such registration or qualification.
In
the event that such a transfer of this Certificate is to be made without
registration or qualification, the Securities Administrator shall require
receipt of (i) if such transfer is purportedly being made in reliance upon
Rule
144A or Regulation S under the 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 B-1, (ii) if such transfer is purportedly being made in reliance
upon
Rule 501(a) under the Act, written certifications from the Holder of the
Certificate desiring to effect the transfer and from such Holder’s prospective
transferee, substantially in the form attached to the Agreement as Exhibit
B-2
and (iii) in all other cases, an Opinion of Counsel satisfactory to it that
such
transfer may be made without such registration or qualification (which Opinion
of Counsel shall not be an expense of the Trust Fund or of the Depositor,
the
Trustee, the Master Servicer or the Securities Administrator 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. None
of the
Depositor, the Trustee or the Securities Administrator is obligated to register
or qualify the Class of Certificates specified on the face hereof under the
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, the Master Servicer
and the Securities Administrator against any liability that may result if
the
transfer is not so exempt or is not made in accordance with such federal
and
state laws.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any Person using “Plan Assets” to acquire this Certificate shall be made except
in accordance with Section 6.02(c) of the Agreement.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in
the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates
of the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No service charge
will be made for any such registration of transfer or exchange of Certificates,
but the Securities Administrator may require payment of a sum sufficient
to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trustee, the Securities Administrator,
the
Servicers and any agent of the Depositor, the Master Servicer, the Trustee,
the
Securities Administrator or a Servicer may treat the Person in whose name
this
Certificate is registered as the owner hereof for all purposes, and none
of the
Depositor, the Master Servicer, the Trustee, the Securities Administrator,
the
Servicers nor any such agent shall be affected by notice to the
contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Securities Administrator and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining
in
REMIC I and (ii) the purchase by the party designated in the Agreement at
a
price determined as provided in the Agreement from REMIC I of all the Mortgage
Loans and all property acquired in respect of such Mortgage Loans. The Agreement
permits, but does not require, the party designated in the Agreement to purchase
from REMIC I all the Mortgage Loans and all property acquired in respect
of any
Mortgage Loan at a price determined as provided in the Agreement. The exercise
of such right will effect early retirement of the Certificates; however,
such
right to purchase is subject to the aggregate Scheduled Principal Balance
of the
Mortgage Loans (and the properties acquired in respect thereof) at the time
of
purchase being less than or equal to 10% of the aggregate principal balance
of
the Mortgage Loans as of the Cut-off Date.
The
recitals contained herein shall be taken as statements of the Depositor and
neither the Trustee nor the Securities Administrator assume any responsibility
for their correctness.
Unless
the certificate of authentication hereon has been executed by the Securities
Administrator, by manual signature, this Certificate shall not be entitled
to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Securities Administrator has caused this Certificate
to be
duly executed.
Dated:
|
▇▇▇▇▇
FARGO BANK, N.A.
as
Securities Administrator
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Officer
|
|||||||||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Class CE-1 Certificates referred to in the within-mentioned
Agreement.
|
▇▇▇▇▇
FARGO BANK, N.A.
as
Securities Administrator
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Officer
|
|||||||||||||
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
|
TEN
COM -
|
as
tenants in common
|
UNIF
GIFT MIN ACT -
|
Custodian
_______________
(Cust)
(Minor)
under
Uniform Gifts
to
Minors Act
|
|
TEN
ENT -
|
as
tenants by the entireties
|
________________
(State)
|
|
|
JT
TEN -
|
as
joint tenants with right
if
survivorship and not as
tenants
in common
|
||
|
Additional
abbreviations may also be used though not in the above
list.
|
|||
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
a
Percentage Interest equal to ____% evidenced by the within Asset Backed
Pass-Through Certificate and hereby authorize(s) the registration of transfer
of
such interest to assignee on the Certificate Register of the Trust
Fund.
I
(we)
further direct the Securities Administrator to issue a new Certificate of
a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
______________________________________________________________
|
.
|
|
Dated:
|
|
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-4B
FORM
OF
CLASS CE-2 CERTIFICATE
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF
1933, AS AMENDED (THE “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 (1) OUTSIDE OF THE UNITED STATES
WITHIN THE MEANING OF AND IN COMPLIANCE WITH REGULATION S UNDER THE ACT
(“REGULATION S”), OR (2) WITHIN THE UNITED STATES TO (A) “QUALIFIED
INSTITUTIONAL BUYERS” WITHIN THE MEANING OF AND IN COMPLIANCE WITH RULE 144A
UNDER THE ACT (“RULE 144A”) OR (B) TO INSTITUTIONAL INVESTORS THAT ARE
“ACCREDITED INVESTORS” WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF
“REGULATION D” UNDER THE ACT.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS
AMENDED (“ERISA”), OR THE CODE WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
NO
TRANSFER OF THIS CERTIFICATE MAY BE MADE TO ANY PERSON, UNLESS THE TRANSFEREE
PROVIDES A CERTIFICATION PURSUANT TO SECTION 6.02(c) OF THE
AGREEMENT.
|
Series
2006-SL1, Class CE-2
|
Aggregate
Percentage Interest of the Class CE-2 Certificates as of the Issue
Date:
100.00%
|
|||
|
Pass-Through
Rate: Variable
|
Master
Servicer: ▇▇▇▇▇ Fargo Bank, N.A.
|
|||
|
Cut-off
Date and date of Pooling and Servicing Agreement: January 1,
2006
|
Trustee:
HSBC Bank USA, National Association
|
|||
|
First
Distribution Date: February 25, 2006
|
Issue
Date: January 27, 2006
|
|||
|
No.
__
|
||||
ASSET
BACKED PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a Trust Fund (the “Trust Fund”) consisting
primarily of a pool of conventional one- to four-family, fixed-rate, first
lien
mortgage loans (the “Mortgage Loans”) formed and sold by
ACE
SECURITIES CORP.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN ACE SECURITIES
CORP., THE MASTER SERVICER, THE SECURITIES ADMINISTRATOR, THE SERVICERS,
THE
TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR
THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY
OF THE
UNITED STATES.
This
certifies that ________________ is the registered owner of a Percentage Interest
set forth above in that certain beneficial ownership interest evidenced by
all
the Class CE-2 Certificates in REMIC III created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the “Agreement”), among ACE
Securities Corp. as depositor (hereinafter called the “Depositor,” which term
includes any successor entity under the Agreement), ▇▇▇▇▇ Fargo Bank, N.A.
as
master servicer (the “Master Servicer”) and securities administrator (the
“Securities Administrator”), GMAC Mortgage Corporation as a servicer (“GMAC”),
Ocwen Loan Servicing, LLC as a servicer (“Ocwen,” together with GMAC, each a
“Servicer” and together the “Servicers”) and HSBC Bank USA, National
Association, as trustee (the “Trustee”), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions
and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is
bound.
Interest
on this Certificate will accrue during the month prior to the month in which
a
Distribution Date (as hereinafter defined) occurs on a Notional Balance at
a per
annum rate equal to the applicable Pass-Through Rate as set forth in the
Agreement. Pursuant to the terms of the Agreement, distributions will be
made on
the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following such 25th
day (a
“Distribution Date”), commencing on the First Distribution Date specified above,
to the Person in whose name this Certificate is registered on the last Business
Day of the calendar month immediately preceding the month in which the related
Distribution Date occurs (the “Record Date”), in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class CE-2 Certificates on such Distribution
Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will
be made
or caused to be made by the Securities Administrator by wire transfer in
immediately available funds to the account of the Person entitled thereto
if
such Person shall have so notified the Securities Administrator in writing
at
least five (5) Business Days prior to the Record Date immediately prior to
such
Distribution Date and is the registered owner of Class CE-2 Certificates,
or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Securities Administrator of the pendency
of
such distribution and only upon presentation and surrender of this Certificate
at the office or agency appointed by the Securities Administrator for that
purpose as provided in the Agreement.
This
Certificate is one of a duly authorized issue of Certificates designated
as
Asset Backed Pass-Through Certificate of the Series specified on the face
hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Collection Accounts and the Distribution Account may be made from time to
time
for purposes other than distributions to Certificateholders, such purposes
including reimbursement of advances made, or certain expenses incurred, with
respect to the Mortgage Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Trustee, the Securities Administrator, the Servicers
and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Trustee, the Securities Administrator
and
the Servicers with the consent of the Swap Provider and the Holders of
Certificates entitled to at least 66% of the Voting Rights. Any such consent
by
the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange herefor or in lieu hereof whether
or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without
the
consent of the Holders of any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices
or
agencies appointed by the Securities Administrator as provided in the Agreement,
duly endorsed by, or accompanied by an assignment in the form below or other
written instrument of transfer in form satisfactory to the Securities
Administrator duly executed by, the Holder hereof or such Holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the
same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or
transferees.
No
transfer of this Certificate shall be made unless the transfer is made pursuant
to an effective registration statement under the Act, and an effective
registration or qualification under applicable state securities laws, or
is made
in a transaction that does not require such registration or qualification.
In
the event that such a transfer of this Certificate is to be made without
registration or qualification, the Securities Administrator shall require
receipt of (i) if such transfer is purportedly being made in reliance upon
Rule
144A or Regulation S under the 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 B-1, (ii) if such transfer is purportedly being made in reliance
upon
Rule 501(a) under the Act, written certifications from the Holder of the
Certificate desiring to effect the transfer and from such Holder’s prospective
transferee, substantially in the form attached to the Agreement as Exhibit
B-2
and (iii) in all other cases, an Opinion of Counsel satisfactory to it that
such
transfer may be made without such registration or qualification (which Opinion
of Counsel shall not be an expense of the Trust Fund or of the Depositor,
the
Trustee, the Master Servicer or the Securities Administrator 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. None
of the
Depositor, the Trustee or the Securities Administrator is obligated to register
or qualify the Class of Certificates specified on the face hereof under the
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, the Master Servicer
and the Securities Administrator against any liability that may result if
the
transfer is not so exempt or is not made in accordance with such federal
and
state laws.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any Person using “Plan Assets” to acquire this Certificate shall be made except
in accordance with Section 6.02(c) of the Agreement.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in
the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates
of the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No service charge
will be made for any such registration of transfer or exchange of Certificates,
but the Securities Administrator may require payment of a sum sufficient
to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trustee, the Securities Administrator,
the
Servicers and any agent of the Depositor, the Master Servicer, the Trustee,
the
Securities Administrator or a Servicer may treat the Person in whose name
this
Certificate is registered as the owner hereof for all purposes, and none
of the
Depositor, the Master Servicer, the Trustee, the Securities Administrator,
the
Servicers nor any such agent shall be affected by notice to the
contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Securities Administrator and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining
in
REMIC I and (ii) the purchase by the party designated in the Agreement at
a
price determined as provided in the Agreement from REMIC I of all the Mortgage
Loans and all property acquired in respect of such Mortgage Loans. The Agreement
permits, but does not require, the party designated in the Agreement to purchase
from REMIC I all the Mortgage Loans and all property acquired in respect
of any
Mortgage Loan at a price determined as provided in the Agreement. The exercise
of such right will effect early retirement of the Certificates; however,
such
right to purchase is subject to the aggregate Scheduled Principal Balance
of the
Mortgage Loans (and the properties acquired in respect thereof) at the time
of
purchase being less than or equal to 10% of the aggregate principal balance
of
the Mortgage Loans as of the Cut-off Date.
The
recitals contained herein shall be taken as statements of the Depositor and
neither the Trustee nor the Securities Administrator assumes any responsibility
for their correctness.
Unless
the certificate of authentication hereon has been executed by the Securities
Administrator, by manual signature, this Certificate shall not be entitled
to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Securities Administrator has caused this Certificate
to be
duly executed.
Dated:
|
▇▇▇▇▇
FARGO BANK, N.A.
as
Securities Administrator
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Officer
|
|||||||||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Class CE-2 Certificates referred to in the within-mentioned
Agreement.
|
▇▇▇▇▇
FARGO BANK, N.A.
as
Securities Administrator
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Officer
|
|||||||||||||
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
|
TEN
COM -
|
as
tenants in common
|
UNIF
GIFT MIN ACT -
|
Custodian
______________
(Cust)
(Minor)
under
Uniform Gifts
to
Minors Act
|
|
TEN
ENT -
|
as
tenants by the entireties
|
________________
(State)
|
|
|
JT
TEN -
|
as
joint tenants with right
if
survivorship and not as
tenants
in common
|
||
|
Additional
abbreviations may also be used though not in the above
list.
|
|||
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
a
Percentage Interest equal to ____% evidenced by the within Asset Backed
Pass-Through Certificate and hereby authorize(s) the registration of transfer
of
such interest to assignee on the Certificate Register of the Trust
Fund.
I
(we)
further direct the Securities Administrator to issue a new Certificate of
a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
______________________________________________________________
|
.
|
|
Dated:
|
|
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-5
FORM
OF
CLASS 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, AS AMENDED (THE
“CODE”).
THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF
1933, AS AMENDED (THE “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
ACT AND OTHER APPLICABLE LAWS AND (1) OUTSIDE OF THE UNITED STATES WITHIN
THE
MEANING OF AND IN COMPLIANCE WITH REGULATION S UNDER THE ACT (“REGULATION S”),
OR (2) WITHIN THE UNITED STATES TO (A) “QUALIFIED INSTITUTIONAL BUYERS” WITHIN
THE MEANING OF AND IN COMPLIANCE WITH RULE 144A UNDER THE ACT (“RULE 144A”) OR
(B) TO INSTITUTIONAL INVESTORS THAT ARE “ACCREDITED INVESTORS” WITHIN THE
MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF “REGULATION D” UNDER THE
ACT.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS
AMENDED (“ERISA”), OR THE CODE WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
NO
TRANSFER OF THIS CERTIFICATE MAY BE MADE TO ANY PERSON, UNLESS THE TRANSFEREE
PROVIDES A CERTIFICATION PURSUANT TO SECTION 6.02(c) OF THE
AGREEMENT.
|
Series
2006-SL1, Class P
|
Aggregate
Certificate Principal Balance of the Class P Certificates as of
the Issue
Date: $100.00
|
|
|
Cut-off
Date and date of Pooling and Servicing Agreement: January 1,
2006
|
Denomination:
$100.00
|
|
|
First
Distribution Date: February 25, 2006
|
Master
Servicer: ▇▇▇▇▇ Fargo Bank, N.A.
|
|
|
No.
__
|
Trustee:
HSBC Bank USA, National Association
|
|
|
Issue
Date: January 27, 2006
|
ASSET
BACKED PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a Trust Fund (the “Trust Fund”) consisting
primarily of a pool of conventional one- to four-family, fixed-rate, second
lien
mortgage loans (the “Mortgage Loans”) formed and sold by
ACE
SECURITIES CORP.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN ACE SECURITIES
CORP., THE MASTER SERVICER, THE SECURITIES ADMINISTRATOR, THE SERVICERS,
THE
TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR
THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY
OF THE
UNITED STATES.
This
certifies that _______________ is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the aggregate
Certificate Principal Balance of the Class P Certificates as of the Issue
Date)
in that certain beneficial ownership interest evidenced by all the Class
P
Certificates in REMIC III created pursuant to a Pooling and Servicing Agreement,
dated as specified above (the “Agreement”), among ACE Securities Corp., as
depositor (hereinafter called the “Depositor”, which term includes any successor
entity under the Agreement), ▇▇▇▇▇ Fargo Bank, N.A. as master servicer (the
“Master Servicer”) and securities administrator (the “Securities
Administrator”), GMAC Mortgage Corporation as a servicer (“GMAC”), Ocwen Loan
Servicing, LLC as a servicer (“Ocwen,” together with GMAC, each a “Servicer” and
together the “Servicers”) and HSBC Bank USA, National Association, as trustee
(the “Trustee”), a summary of certain of the pertinent provisions of which is
set forth hereafter. To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Agreement. This Certificate
is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of
the
acceptance hereof assents and by which such Holder is bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following such 25th
day (a
“Distribution Date”), commencing on the First Distribution Date specified above,
to the Person in whose name this Certificate is registered on the last Business
Day of the calendar month immediately preceding the month in which the related
Distribution Date occurs (the “Record Date”), in an amount equal to the product
of the Percentage Interest evidenced by this Certificate and the amount required
to be distributed to the Holders of Class P Certificates on such Distribution
Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will
be made
or caused to be made by the Securities Administrator by wire transfer in
immediately available funds to the account of the Person entitled thereto
if
such Person shall have so notified the Securities Administrator in writing
at
least five (5) Business Days prior to the Record Date immediately prior to
such
Distribution Date and is the registered owner of Class P Certificates the
aggregate initial Certificate Principal Balance of which is in excess of
the
lesser of (i) $5,000,000 or (ii) two-thirds of the aggregate initial Certificate
Principal Balance of the Class P Certificates, or otherwise by check mailed
by
first class mail to the address of the Person entitled thereto, as such name
and
address shall appear on the Certificate Register. Notwithstanding the above,
the
final distribution on this Certificate will be made after due notice by the
Securities Administrator of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency appointed
by the Securities Administrator for that purpose as provided in the
Agreement.
This
Certificate is one of a duly authorized issue of Certificates designated
as
Asset Backed Pass-Through Certificate of the Series specified on the face
hereof
(herein called the “Certificates”) and representing a Percentage Interest in the
Class of Certificates specified on the face hereof equal to the denomination
specified on the face hereof divided by the aggregate Certificate Principal
Balance of the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Collection Accounts and the Distribution Account may be made from time to
time
for purposes other than distributions to Certificateholders, such purposes
including reimbursement of advances made, or certain expenses incurred, with
respect to the Mortgage Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Trustee, the Securities Administrator, the Servicers
and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Trustee, the Securities Administrator
and
the Servicers with the consent of the Swap Provider and the Holders of
Certificates entitled to at least 66% of the Voting Rights. Any such consent
by
the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange herefor or in lieu hereof whether
or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without
the
consent of the Holders of any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices
or
agencies appointed by the Securities Administrator as provided in the Agreement,
duly endorsed by, or accompanied by an assignment in the form below or other
written instrument of transfer in form satisfactory to the Securities
Administrator duly executed by, the Holder hereof or such Holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the
same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or
transferees.
No
transfer of this Certificate shall be made unless the transfer is made pursuant
to an effective registration statement under the Act, and an effective
registration or qualification under applicable state securities laws, or
is made
in a transaction that does not require such registration or qualification.
In
the event that such a transfer of this Certificate is to be made without
registration or qualification, the Securities Administrator shall require
receipt of (i) if such transfer is purportedly being made in reliance upon
Rule
144A under the 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 B-1, (ii)
if
such transfer is purportedly being made in reliance upon Rule 501(a) under
the
Act, written certifications from the Holder of the Certificate desiring to
effect the transfer and from such Holder’s prospective transferee, substantially
in the form attached to the Agreement as Exhibit B-2 and (iii) in all other
cases, an Opinion of Counsel satisfactory to it that such transfer may be
made
without such registration or qualification (which Opinion of Counsel shall
not
be an expense of the Trust Fund or of the Depositor, the Trustee, the Master
Servicer or the Securities Administrator 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. None of the Depositor,
the Trustee or the Securities Administrator is obligated to register or qualify
the Class of Certificates specified on the face hereof under the 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, the Master Servicer
and the Securities Administrator against any liability that may result if
the
transfer is not so exempt or is not made in accordance with such federal
and
state laws.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any Person using “Plan Assets” to acquire this Certificate shall be made except
in accordance with Section 6.02(c) of the Agreement.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in
the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates
of the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No service charge
will be made for any such registration of transfer or exchange of Certificates,
but the Securities Administrator may require payment of a sum sufficient
to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trustee, the Securities Administrator,
the
Servicers and any agent of the Depositor, the Master Servicer, the Trustee,
the
Securities Administrator or a Servicer may treat the Person in whose name
this
Certificate is registered as the owner hereof for all purposes, and none
of the
Depositor, the Master Servicer, the Trustee, the Securities Administrator,
the
Servicers nor any such agent shall be affected by notice to the
contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Securities Administrator and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining
in
REMIC I and (ii) the purchase by the party designated in the Agreement at
a
price determined as provided in the Agreement from REMIC I of all the Mortgage
Loans and all property acquired in respect of such Mortgage Loans. The Agreement
permits, but does not require, the party designated in the Agreement to purchase
from REMIC I all the Mortgage Loans and all property acquired in respect
of any
Mortgage Loan at a price determined as provided in the Agreement. The exercise
of such right will effect early retirement of the Certificates; however,
such
right to purchase is subject to the aggregate Scheduled Principal Balance
of the
Mortgage Loans (and properties acquired in respect thereof) at the time of
purchase being less than or equal to 10% of the aggregate principal balance
of
the Mortgage Loans as of the Cut-off Date.
The
recitals contained herein shall be taken as statements of the Depositor and
neither the Trustee nor the Securities Administrator assume any responsibility
for their correctness.
Unless
the certificate of authentication hereon has been executed by the Securities
Administrator, by manual signature, this Certificate shall not be entitled
to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Securities Administrator has caused this Certificate
to be
duly executed.
Dated:
|
▇▇▇▇▇
FARGO BANK, N.A.
as
Securities Administrator
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Officer
|
|||||||||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Class P Certificates referred to in the within-mentioned
Agreement.
|
▇▇▇▇▇
FARGO BANK, N.A.
as
Securities Administrator
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Officer
|
|||||||||||||
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
|
TEN
COM -
|
as
tenants in common
|
UNIF
GIFT MIN ACT -
|
Custodian
____________
(Cust)
(Minor)
under
Uniform Gifts
to
Minors Act
|
|
TEN
ENT -
|
as
tenants by the entireties
|
________________
(State)
|
|
|
JT
TEN -
|
as
joint tenants with right
if
survivorship and not as
tenants
in common
|
||
|
Additional
abbreviations may also be used though not in the above
list.
|
|||
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
a
Percentage Interest equal to ____% evidenced by the within Asset Backed
Pass-Through Certificate and hereby authorize(s) the registration of transfer
of
such interest to assignee on the Certificate Register of the Trust
Fund.
I
(we)
further direct the Securities Administrator to issue a new Certificate of
a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
______________________________________________________________
|
.
|
|
Dated:
|
|
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-6
FORM
OF
CLASS R CERTIFICATE
THIS
CERTIFICATE MAY NOT BE TRANSFERRED TO A NON-UNITED STATES
PERSON.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES,
THIS CERTIFICATE REPRESENTS THE SOLE “RESIDUAL INTEREST” IN EACH “REAL ESTATE
MORTGAGE INVESTMENT CONDUIT” (“REMIC”), AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
ANY
RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY
IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 6.02 OF THE AGREEMENT REFERRED
TO
HEREIN.
THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF
1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE RESOLD
OR
TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND LAWS OR IS SOLD
OR
TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION UNDER SUCH
ACT AND
UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 6.02 OF THE AGREEMENT.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS
AMENDED (“ERISA”), OR THE CODE WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE
PROCEDURES DESCRIBED HEREIN.
ANY
RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY
IF
THE PROPOSED TRANSFEREE PROVIDES (I) AN AFFIDAVIT TO THE SECURITIES
ADMINISTRATOR THAT (A) SUCH TRANSFEREE IS NOT (1) THE UNITED STATES OR ANY
POSSESSION THEREOF, ANY STATE OR POLITICAL SUBDIVISION THEREOF, ANY FOREIGN
GOVERNMENT, ANY INTERNATIONAL ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY
OF
ANY OF THE FOREGOING, (2) ANY ORGANIZATION (OTHER THAN A COOPERATIVE DESCRIBED
IN SECTION 521 OF THE CODE) THAT IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER
1 OF
THE CODE UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION
511
OF THE CODE, (3) ANY ORGANIZATION DESCRIBED IN SECTION 1381(a)(2)(C) OF THE
CODE
(ANY SUCH PERSON DESCRIBED IN THE FOREGOING CLAUSES (1), (2) OR (3) SHALL
HEREINAFTER BE REFERRED TO AS A “DISQUALIFIED ORGANIZATION”) OR (4) AN AGENT OF
A DISQUALIFIED ORGANIZATION AND (B) NO PURPOSE OF SUCH TRANSFER IS TO IMPEDE
THE
ASSESSMENT OR COLLECTION OF TAX, AND (II) SUCH TRANSFEREE SATISFIES CERTAIN
ADDITIONAL CONDITIONS RELATING TO THE FINANCIAL CONDITION OF THE PROPOSED
TRANSFEREE. NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER
OF ANY
TRANSFER, SALE OR OTHER DISPOSITION OF THIS CERTIFICATE TO A DISQUALIFIED
ORGANIZATION OR AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH REGISTRATION
SHALL
BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL
NOT
BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING,
BUT
NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER
OF
THIS CERTIFICATE BY ACCEPTANCE HEREOF SHALL BE DEEMED TO HAVE CONSENTED TO
THE
PROVISIONS OF THIS PARAGRAPH AND THE PROVISIONS OF SECTION 6.02(d) OF THE
AGREEMENT REFERRED TO HEREIN. ANY PERSON THAT IS A DISQUALIFIED ORGANIZATION
IS
PROHIBITED FROM ACQUIRING BENEFICIAL OWNERSHIP OF THIS
CERTIFICATE.
|
Series
2006-SL1, Class R
|
Aggregate
Percentage Interest of the Class R Certificates as of the Issue
Date:
100.00%
|
|
|
Date
of Pooling and Servicing Agreement
and
Cut-off Date: January 1, 2006
|
Master
Servicer: ▇▇▇▇▇ Fargo Bank, N.A.
|
|
|
First
Distribution Date: February 25, 2006
|
Trustee:
HSBC Bank USA, National Association
|
|
|
No
__
|
Issue
Date: January 27, 2006
|
ACE
SECURITIES CORP. HOME EQUITY LOAN TRUST, SERIES 2006-SL1
ASSET
BACKED PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a Trust Fund (the “Trust Fund”) consisting
primarily of a pool of conventional one- to four-family, fixed-rate, second
lien
mortgage loans (the “Mortgage Loans”) formed and sold by
ACE
SECURITIES CORP.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN ACE SECURITIES
CORP., THE MASTER SERVICER, THE SECURITIES ADMINISTRATOR, THE SERVICERS,
THE
TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR
THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY
OF THE
UNITED STATES.
This
certifies that _______________ is the registered owner of a Percentage Interest
set forth above in that certain beneficial ownership interest evidenced by
all
the Class R Certificates in REMIC III created pursuant to a Pooling and
Servicing Agreement, dated as specified above (the “Agreement”), among ACE
Securities Corp., as depositor (hereinafter called the “Depositor”, which term
includes any successor entity under the Agreement), ▇▇▇▇▇ Fargo Bank, N.A.
as
master servicer (the “Master Servicer”) and securities administrator (the
“Securities Administrator”), GMAC Mortgage Corporation as a servicer (“GMAC”),
Ocwen Loan Servicing, LLC as a servicer (“Ocwen,” together with GMAC, each a
“Servicer” and together the “Servicers”) and HSBC Bank USA, National
Association, as trustee (the “Trustee”), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions
and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is
bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, the Business Day
immediately following (a “Distribution Date”), commencing on the First
Distribution Date specified above, to the Person in whose name this Certificate
is registered on last Business Day of the calendar month immediately preceding
the month in which the related Distribution Date occurs (the “Record Date”), in
an amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to the Holders of Class
R
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will
be made
or caused to be made by the Securities Administrator by wire transfer in
immediately available funds to the account of the Person entitled thereto
if
such Person shall have so notified the Securities Administrator in writing
at
least five (5) Business Days prior to the Record Date immediately prior to
such
Distribution Date and is the registered owner of Class R Certificates, or
otherwise by check mailed by first class mail to the address of the Person
entitled thereto, as such name and address shall appear on the Certificate
Register. Notwithstanding the above, the final distribution on this Certificate
will be made after due notice by the Securities Administrator of the pendency
of
such distribution and only upon presentation and surrender of this Certificate
at the office or agency appointed by the Securities Administrator for that
purpose as provided in the Agreement.
This
Certificate is one of a duly authorized issue of Certificates designated
as
Asset Backed Pass-Through Certificate of the Series specified on the face
hereof
(herein called the “Certificates”) and representing the Percentage Interest in
the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Collection Accounts and the Distribution Account may be made from time to
time
for purposes other than distributions to Certificateholders, such purposes
including reimbursement of advances made, or certain expenses incurred, with
respect to the Mortgage Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Master Servicer, the Trustee, the Securities Administrator, the Servicers
and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Trustee, the Securities Administrator
and
the Servicers with the consent of the Swap Provider and the Holders of
Certificates entitled to at least 66% of the Voting Rights. Any such consent
by
the Holder of this Certificate shall be conclusive and binding on such Holder
and upon all future Holders of this Certificate and of any Certificate issued
upon the transfer hereof or in exchange herefor or in lieu hereof whether
or not
notation of such consent is made upon this Certificate. The Agreement also
permits the amendment thereof, in certain limited circumstances, without
the
consent of the Holders of any of the Certificates.
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices
or
agencies appointed by the Securities Administrator as provided in the Agreement,
duly endorsed by, or accompanied by an assignment in the form below or other
written instrument of transfer in form satisfactory to the Securities
Administrator duly executed by, the Holder hereof or such Holder’s attorney duly
authorized in writing, and thereupon one or more new Certificates of the
same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or
transferees.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in
the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
No
transfer of this Certificate shall be made unless the transfer is made pursuant
to an effective registration statement under the Securities Act of 1933,
as
amended (the “1933 Act”), and an effective registration or qualification under
applicable state securities laws, or is made in a transaction that does not
require such registration or qualification. In the event that such a transfer
of
this Certificate is to be made without registration or qualification, the
Securities Administrator shall require receipt of (i) if such transfer is
purportedly being made in reliance upon Rule 144A under the 1933 Act, written
certifications from the Holder of the Certificate desiring to effect the
transfer, and from such Holder’s prospective transferee, substantially in the
forms attached to the Agreement as Exhibit B-1, and (ii) in all other cases,
an
Opinion of Counsel satisfactory to it that such transfer may be made without
such registration or qualification (which Opinion of Counsel shall not be
an
expense of the Trust Fund or of the Depositor, the Trustee, the Master Servicer
or the Securities Administrator 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. None of the Depositor,
the Trustee or the Securities Administrator 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, the Master Servicer
and the Securities Administrator against any liability that may result if
the
transfer is not so exempt or is not made in accordance with such federal
and
state laws.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any Person using “Plan Assets” to acquire this Certificate shall be made except
in accordance with Section 6.02 of the Agreement.
Prior
to
registration of any transfer, sale or other disposition of this Certificate,
the
proposed transferee shall provide to the Securities Administrator (i) an
affidavit to the effect that such transferee is any Person other than a
Disqualified Organization or the agent (including a broker, nominee or
middleman) of a Disqualified Organization, and (ii) a certificate that
acknowledges that (A) the Class R Certificates have been designated as
representing the beneficial ownership of the residual interests in each of
REMIC
I, REMIC II and REMIC III, (B) it will include in its income a pro
rata
share of
the net income of the Trust Fund and that such income may be an “excess
inclusion,” as defined in the Code, that, with certain exceptions, cannot be
offset by other losses or benefits from any tax exemption, and (C) it expects
to
have the financial means to satisfy all of its tax obligations including
those
relating to holding the Class R Certificates. Notwithstanding the registration
in the Certificate Register of any transfer, sale or other disposition of
this
Certificate to a Disqualified Organization or an agent (including a broker,
nominee or middleman) of a Disqualified Organization, such registration shall
be
deemed to be of no legal force or effect whatsoever and such Person shall
not be
deemed to be a Certificateholder for any purpose, including, but not limited
to,
the receipt of distributions in respect of this Certificate.
The
Holder of this Certificate, by its acceptance hereof, shall be deemed to
have
consented to the provisions of Section 6.02 of the Agreement and to any
amendment of the Agreement deemed necessary by counsel of the Depositor to
ensure that the transfer of this Certificate to any Person other than a
Permitted Transferee or any other Person will not cause any portion of the
Trust
Fund to cease to qualify as a REMIC or cause the imposition of a tax upon
any
REMIC.
No
service charge will be made for any such registration of transfer or exchange
of
Certificates, but the Securities Administrator may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in
connection with any transfer or exchange of Certificates.
The
Depositor, the Master Servicer, the Trustee, the Securities Administrator,
the
Servicers and any agent of the Depositor, the Master Servicer, the Trustee,
the
Securities Administrator or a Servicer may treat the Person in whose name
this
Certificate is registered as the owner hereof for all purposes, and none
of the
Depositor, the Master Servicer, the Trustee, the Securities Administrator,
the
Servicers nor any such agent shall be affected by notice to the
contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Securities Administrator and required to be paid to them pursuant to the
Agreement following the earlier of (i) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan remaining
in
REMIC I and (ii) the purchase by the party designated in the Agreement at
a
price determined as provided in the Agreement from REMIC I of all the Mortgage
Loans and all property acquired in respect of such Mortgage Loans. The Agreement
permits, but does not require, the party designated in the Agreement to purchase
from REMIC I all the Mortgage Loans and all property acquired in respect
of any
Mortgage Loan at a price determined as provided in the Agreement. The exercise
of such right will effect early retirement of the Certificates; however,
such
right to purchase is subject to the aggregate Scheduled Principal Balance
of the
Mortgage Loans (and properties acquired in respect thereof) at the time of
purchase being less than or equal to 10% of the aggregate principal balance
of
the Mortgage Loans as of the Cut-off Date.
The
recitals contained herein shall be taken as statements of the Depositor and
neither the Trustee nor the Securities Administrator assume any responsibility
for their correctness.
Unless
the certificate of authentication hereon has been executed by the Securities
Administrator, by manual signature, this Certificate shall not be entitled
to
any benefit under the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Securities Administrator has caused this Certificate
to be
duly executed.
Dated:
|
▇▇▇▇▇
FARGO BANK, N.A.
as
Securities Administrator
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Officer
|
|||||||||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Class R Certificates referred to in the within-mentioned
Agreement.
|
▇▇▇▇▇
FARGO BANK, N.A.
as
Securities Administrator
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory
|
|||||||||||||
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
|
TEN
COM -
|
as
tenants in common
|
UNIF
GIFT MIN ACT -
|
Custodian
____________
(Cust)
(Minor)
under
Uniform Gifts
to
Minors Act
|
|
TEN
ENT -
|
as
tenants by the entireties
|
________________
(State)
|
|
|
JT
TEN -
|
as
joint tenants with right
if
survivorship and not as
tenants
in common
|
||
|
Additional
abbreviations may also be used though not in the above
list.
|
|||
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
a
Percentage Interest equal to _____% evidenced by the within Asset Backed
Pass-Through Certificate and hereby authorize(s) the registration of transfer
of
such interest to assignee on the Certificate Register of the Trust
Fund.
I
(we)
further direct the Securities Administrator to issue a new Certificate of
a like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
______________________________________________________________
|
.
|
|
Dated:
|
|
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
B-1
FORM
OF
TRANSFEROR REPRESENTATION LETTER
[Date]
▇▇▇▇▇
Fargo Bank, N.A.
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Corporate Trust ACE 2006-SL1
|
Re:
|
ACE
Securities Corp. Home Equity Loan Trust, Series 2006-SL1
Asset
Backed Pass-Through Certificates
Class
B-1, Class CE-1, Class CE-2, Class P and Class R
Certificates
|
Ladies
and Gentlemen:
In
connection with the transfer by ______________________ (the “Transferor”) to
___________________ (the “Transferee”) of the captioned mortgage pass-through
certificates (the “Certificates”), the Transferor hereby certifies as
follows:
Neither
the Transferor nor anyone acting on its behalf has (a) offered, pledged,
sold,
disposed of or otherwise transferred any Certificate, any interest in any
Certificate or any other similar security to any person in any manner, (b)
has
solicited any offer to buy or to accept a pledge, disposition or other transfer
of any Certificate, any interest in any Certificate or any other similar
security from any person in any manner, (c) has otherwise approached or
negotiated with respect to any Certificate, any interest in any Certificate
or
any other similar security with any person in any manner, (d) has made any
general solicitation by means of general advertising or in any other manner,
(e)
has taken any other action, that (in the case of each of subclauses (a) through
(e) above) would constitute a distribution of the Certificates under the
Securities Act of 1933, as amended (the “1933 Act”), or would render the
disposition of any Certificate a violation of Section 5 of the 1933 Act or
any
state securities law or would require registration or qualification pursuant
thereto. The Transferor will not act, nor has it authorized or will it authorize
any person to act, in any manner set forth in the foregoing sentence with
respect to any Certificate. The Transferor will not sell or otherwise transfer
any of the Certificates, except in compliance with the provisions of that
certain Pooling and Servicing Agreement, dated as of January 1, 2006, among
ACE
Securities Corp. as Depositor, ▇▇▇▇▇ Fargo Bank, N.A. as Master Servicer
and
Securities Administrator, GMAC Mortgage Corporation as a Servicer, Ocwen
Loan
Servicing, LLC as a Servicer and HSBC Bank USA, National Association as trustee
(the “Pooling and Servicing Agreement”), pursuant to which Pooling and Servicing
Agreement the Certificates were issued.
Capitalized
terms used but not defined herein shall have the meanings assigned thereto
in
the Pooling and Servicing Agreement.
|
Very
truly yours,
|
||||||||
|
[Transferor]
|
||||||||
|
By:
|
||||||||
|
Name:
|
||||||||
|
Title:
|
||||||||
FORM
OF
TRANSFEREE REPRESENTATION LETTER
[Date]
▇▇▇▇▇
Fargo Bank, N.A.
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Corporate Trust ACE 2006-SL1
|
Re:
|
ACE
Securities Corp. Home Equity Loan Trust, Series 2006-SL1
Asset
Backed Pass-Through Certificates
Class
B-1, Class CE-1, Class CE-2, Class P and Class R
Certificates
|
Ladies
and Gentlemen:
In
connection with the purchase from ______________________________ (the
“Transferor”) on the date hereof of the captioned trust certificates (the
“Certificates”), (the “Transferee”) hereby certifies as follows:
1. The
Transferee is a “qualified institutional buyer” as that term is defined in Rule
144A (“Rule 144A”) under the Securities Act of 1933 (the “1933 Act”) and has
completed either of the forms of certification to that effect attached hereto
as
Annex 1 or Annex 2. The Transferee is aware that the sale to it is being
made in
reliance on Rule 144A. The Transferee is acquiring the Certificates for its
own
account or for the account of a qualified institutional buyer, and understands
that such Certificate may be resold, pledged or transferred only (i) to a
person
reasonably believed to be a qualified institutional buyer that purchases
for its
own account or for the account of a qualified institutional buyer to whom
notice
is given that the resale, pledge or transfer is being made in reliance on
Rule
144A, or (ii) pursuant to another exemption from registration under the 1933
Act.
2. The
Transferee has been furnished with all information regarding (a) the
Certificates and distributions thereon, (b) the nature, performance and
servicing of the Mortgage Loans, (c) the Pooling and Servicing Agreement
referred to below, and (d) any credit enhancement mechanism associated with
the
Certificates, that it has requested.
3. The
Transferee: (a) is not an employee benefit plan or other plan subject to
the
prohibited transaction provisions of the Employee Retirement Income Security
Act
of 1974, as amended (“ERISA”), or Section 4975 of the Internal Revenue Code of
1986, as amended (the “Code”) (each, 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 within the meaning of the Department of Labor (“DOL”)
regulation at 29 C.F.R. § 2510.3-101 or (b) [[for
Class CE-1, Class CE-2, Class P and Class R] has provided the Securities
Administrator with an opinion of counsel on which the Trustee, the Depositor,
the Master Servicer, the Securities Administrator and the Servicers may rely,
acceptable to and in form and substance satisfactory to the Trustee to the
effect that the purchase of Certificates is permissible under applicable
law,
will not constitute or result in any non-exempt prohibited transaction under
ERISA or Section 4975 of the Code and will not subject the Trust Fund, the
Trustee, the Depositor, the Master Servicer, the Securities Administrator
or the
Servicers to any obligation or liability (including obligations or liabilities
under ERISA or Section 4975 of the Code) in addition to those undertaken
in the
Pooling and Servicing Agreement.] [[for Class B-1] (i) is an insurance company,
(ii) 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 (iii) (A) prior to
the termination of the Supplemental Interest Trust, the acquisition and holding
of such Certificate and the separate right to receive payments from the
Supplemental Interest Trust are eligible for the exemptive relief under PTCE
95-60 and (B) subsequent to the termination of the Supplemental Interest
Trust,
the conditions in Sections I and III of PTCE 95-60 have been
satisfied.]
In
addition, the Transferee hereby certifies, represents and warrants to, and
covenants with, the Depositor, the Trustee, the Securities Administrator,
the
Master Servicer and the Servicers that the Transferee will not transfer such
Certificates to any Plan or person unless such Plan or person meets the
requirements set forth in paragraph 3 above.
All
capitalized terms used but not otherwise defined herein have the respective
meanings assigned thereto in the Pooling and Servicing Agreement, dated as
of
January 1, 2006, among ACE Securities Corp. as Depositor, ▇▇▇▇▇ Fargo Bank,
N.A.
as Master Servicer, Securities Administrator, GMAC Mortgage Corporation as
a
Servicer, Ocwen Loan Servicing, LLC as a Servicer and HSBC Bank USA, National
Association as Trustee, pursuant to which the Certificates were
issued.
|
[TRANSFEREE]
|
||||||||
|
By:
|
||||||||
|
Name:
|
||||||||
|
Title:
|
||||||||
ANNEX
1 TO EXHIBIT B-1
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Transferees Other Than Registered Investment Companies]
The
undersigned hereby certifies as follows to [name of Transferor] (the
“Transferor”) and ▇▇▇▇▇ Fargo Bank, N.A., as Securities Administrator, with
respect to the asset backed pass-through certificates (the “Certificates”)
described in the Transferee Certificate to which this certification relates
and
to which this certification is an Annex:
1. As
indicated below, the undersigned is the President, Chief Financial Officer,
Senior Vice President or other executive officer of the entity purchasing
the
Certificates (the “Transferee”).
2. In
connection with purchases by the Transferee, the Transferee is a “qualified
institutional buyer” as that term is defined in Rule 144A under the Securities
Act of 1933 (“Rule 144A”) because (i) the Transferee owned and/or invested on a
discretionary basis $________________1
in
securities (except for the excluded securities referred to below) as of the
end
of the Transferee’s most recent fiscal year (such amount being calculated in
accordance with Rule 144A) and (ii) the Transferee satisfies the criteria
in the
category marked below.
|
___
|
Corporation,
etc.
The Transferee is a corporation (other than a bank, savings and
loan
association or similar institution), Massachusetts or similar business
trust, partnership, or any organization described in Section 501(c)(3)
of
the Internal Revenue Code of 1986.
|
|
___
|
Bank.
The Transferee (a) is a national bank or banking institution organized
under the laws of any State, territory or the District of Columbia,
the
business of which is substantially confined to banking and is supervised
by the State or territorial banking commission or similar official
or is a
foreign bank or equivalent institution, and (b) has an audited
net worth
of at least $25,000,000 as demonstrated in its latest annual financial
statements, a
copy of which is attached hereto.
|
|
___
|
Savings
and Loan.
The Transferee (a) is a savings and loan association, building
and loan
association, cooperative bank, homestead association or similar
institution, which is supervised and examined by a State or Federal
authority having supervision over any such institutions or is a
foreign
savings and loan association or equivalent institution and (b)
has an
audited net worth of at least $25,000,000 as demonstrated in its
latest
annual financial statements, a
copy of which is attached hereto.
|
|
___
|
Broker-dealer.
The Transferee is a dealer registered pursuant to Section 15 of
the
Securities Exchange Act of 1934.
|
|
___
|
Insurance
Company.
The Transferee is an insurance company whose primary and predominant
business activity is the writing of insurance or the reinsuring
of risks
underwritten by insurance companies and which is subject to supervision
by
the insurance commissioner or a similar official or agency of a
State,
territory or the District of Columbia.
|
|
___
|
State
or Local Plan.
The Transferee is a plan established and maintained by a State,
its
political subdivisions, or any agency or instrumentality of the
State or
its political subdivisions, for the benefit of its
employees.
|
|
___
|
ERISA
Plan.
The Transferee is an employee benefit plan within the meaning of
Title I
of the Employee Retirement Income Security Act of 1974.
|
|
___
|
Investment
Advisor
The Transferee is an investment advisor registered under the Investment
Advisers Act of 1940.
|
| 1 |
Transferee
must own and/or invest on a discretionary basis at least $100,000,000
in
securities unless Transferee is a dealer, and, in that case,
Transferee
must own and/or invest on a discretionary basis at least $10,000,000
in
securities.
|
3. The
term
“securities”
as used
herein does
not include
(i)
securities of issuers that are affiliated with the Transferee, (ii) securities
that are part of an unsold allotment to or subscription by the Transferee,
if
the Transferee is a dealer, (iii) securities issued or guaranteed by the
U.S. or
any instrumentality thereof, (iv) bank deposit notes and certificates of
deposit, (v) loan participations, (vi) repurchase agreements, (vii)
securities owned but subject to a repurchase agreement and (viii) currency,
interest rate and commodity swaps.
4. For
purposes of determining the aggregate amount of securities owned and/or invested
on a discretionary basis by the Transferee, the Transferee used the cost
of such
securities to the Transferee and did not include any of the securities referred
to in the preceding paragraph. Further, in determining such aggregate amount,
the Transferee may have included securities owned by subsidiaries of the
Transferee, but only if such subsidiaries are consolidated with the Transferee
in its financial statements prepared in accordance with generally accepted
accounting principles and if the investments of such subsidiaries are managed
under the Transferee’s direction. However, such securities were not included if
the Transferee is a majority-owned, consolidated subsidiary of another
enterprise and the Transferee is not itself a reporting company under the
Securities Exchange Act of 1934.
5. The
Transferee acknowledges that it is familiar with Rule 144A and understands
that
the Transferor and other parties related to the Certificates are relying
and
will continue to rely on the statements made herein because one or more sales
to
the Transferee may be in reliance on Rule 144A.
|
___
|
___
|
Will
the Transferee be purchasing the Certificates
|
|
Yes
|
No
|
only
for the Transferee’s own account?
|
6. If
the
answer to the foregoing question is “no”, the Transferee agrees that, in
connection with any purchase of securities sold to the Transferee for the
account of a third party (including any separate account) in reliance on
Rule
144A, the Transferee will only purchase for the account of a third party
that at
the time is a “qualified institutional buyer” within the meaning of Rule 144A.
In addition, the Transferee agrees that the Transferee will not purchase
securities for a third party unless the Transferee has obtained a current
representation letter from such third party or taken other appropriate steps
contemplated by Rule 144A to conclude that such third party independently
meets
the definition of “qualified institutional buyer” set forth in Rule
144A.
7. The
Transferee will notify each of the parties to which this certification is
made
of any changes in the information and conclusions herein. Until such notice
is
given, the Transferee’s purchase of the Certificates will constitute a
reaffirmation of this certification as of the date of such purchase. In
addition, if the Transferee is a bank or savings and loan as provided above,
the
Transferee agrees that it will furnish to such parties updated annual financial
statements promptly after they become available.
Dated:
|
___________________________________________
|
||||||||
|
Print
Name of Transferee
|
||||||||
|
By:
|
||||||||
|
Name:
|
||||||||
|
Title:
|
||||||||
ANNEX
2 TO EXHIBIT B-1
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Transferees That Are Registered Investment Companies]
The
undersigned hereby certifies as follows to [name of Transferor] (the
“Transferor”) and ▇▇▇▇▇ Fargo Bank, N.A., as Securities Administrator, with
respect to the asset backed pass-through certificates (the “Certificates”)
described in the Transferee Certificate to which this certification relates
and
to which this certification is an Annex:
1. As
indicated below, the undersigned is the President, Chief Financial Officer
or
Senior Vice President of the entity purchasing the Certificates (the
“Transferee”) or, if the Transferee is a “qualified institutional buyer” as that
term is defined in Rule 144A under the Securities Act of 1933 (“Rule 144A”)
because the Transferee is part of a Family of Investment Companies (as defined
below), is such an officer of the investment adviser (the
“Adviser”).
2. In
connection with purchases by the Transferee, the Transferee is a “qualified
institutional buyer” as defined in Rule 144A because (i) the Transferee is an
investment company registered under the Investment Company Act of 1940, and
(ii)
as marked below, the Transferee alone, or the Transferee’s Family of Investment
Companies, owned at least $100,000,000 in securities (other than the excluded
securities referred to below) as of the end of the Transferee’s most recent
fiscal year. For purposes of determining the amount of securities owned by
the
Transferee or the Transferee’s Family of Investment Companies, the cost of such
securities was used.
|
___
|
The
Transferee owned $________________________ in securities (other
than the
excluded securities referred to below) as of the end of the Transferee’s
most recent fiscal year (such amount being calculated in accordance
with
Rule 144A).
|
|
___
|
The
Transferee is part of a Family of Investment Companies which owned
in the
aggregate $_______________ in securities (other than the excluded
securities referred to below) as of the end of the Transferee’s most
recent fiscal year (such amount being calculated in accordance
with Rule
144A).
|
3. The
term
“Family
of Investment Companies”
as used
herein means two or more registered investment companies (or series thereof)
that have the same investment adviser or investment advisers that are affiliated
(by virtue of being majority owned subsidiaries of the same parent or because
one investment adviser is a majority owned subsidiary of the
other).
4. The
term
“securities”
as used
herein does not include (i) securities of issuers that are affiliated with
the
Transferee or are part of the Transferee’s Family of Investment Companies, (ii)
securities issued or guaranteed by the U.S. or any instrumentality thereof,
(iii) bank deposit notes and certificates of deposit, (iv) loan participations,
(v) repurchase agreements, (vi) securities owned but subject to a
repurchase agreement and (vii) currency, interest rate and commodity
swaps.
5. The
Transferee is familiar with Rule 144A and understands that the parties to
which
this certification is being made are relying and will continue to rely on
the
statements made herein because one or more sales to the Transferee will be
in
reliance on Rule 144A. In addition, the Transferee will only purchase for
the
Transferee’s own account.
6. The
undersigned will notify the parties to which this certification is made of
any
changes in the information and conclusions herein. Until such notice, the
Transferee’s purchase of the Certificates will constitute a reaffirmation of
this certification by the undersigned as of the date of such
purchase.
Dated:
|
|
||||||||
|
Print
Name of Transferee or Advisor
|
||||||||
|
By:
|
||||||||
|
Name:
|
||||||||
|
Title:
|
||||||||
|
IF
AN ADVISER:
|
||||||||
|
|
||||||||
|
Print
Name of Transferee
|
||||||||
FORM
OF
TRANSFEREE REPRESENTATION LETTER
The
undersigned hereby certifies on behalf of the purchaser named below (the
“Purchaser”) as follows:
1. I
am an
executive officer of the Purchaser.
2. The
Purchaser is a “qualified institutional buyer”, as defined in Rule 144A, (“Rule
144A”) under the Securities Act of 1933, as amended.
3. As
of the
date specified below (which is not earlier than the last day of the Purchaser’s
most recent fiscal year), the amount of “securities”, computed for purposes of
Rule 144A, owned and invested on a discretionary basis by the Purchaser was
in
excess of $100,000,000.
|
Name
of Purchaser
|
|||||
|
By:
(Signature)
|
|||||
|
Name
of Signatory
|
|||||
|
Title
|
|||||
|
Date
of this certificate
|
|||||
|
Date
of information provided in paragraph 3
|
|||||
ANNEX
A TO EXHIBIT B-1
FORM
OF
REGULATION S TRANSFER CERTIFICATE
[Date]
▇▇▇▇▇
Fargo Bank, N.A.
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Corporate Trust ACE 2006-SL1
|
Re:
|
ACE
Securities Corp. Home Equity Loan Trust, Series 2006-SL1
Asset
Backed Pass-Through Certificates, Class B-1, Class CE-1,
Class
CE-2 and/or Class P
Certificates
|
Ladies
and Gentlemen:
Reference
is hereby made to the Pooling and Servicing Agreement (the “Agreement”), dated
as of January 1, 2006, among ACE Securities Corp. (the “Depositor”), ▇▇▇▇▇ Fargo
Bank, N.A., as master servicer and securities administrator (the “Master
Servicer GMAC Mortgage Corporation as a servicer (“GMAC”), Ocwen Loan Servicing,
LLC as a servicer (“Ocwen,” together with GMAC, each a “Servicer” and together
the “Servicers”) and HSBC Bank USA, National Association, as trustee (the
“Trustee”). Capitalized terms used herein but not defined herein shall have the
meanings assigned thereto in the Agreement.
This
letter relates to U.S. $[__________] Certificate Principal Balance of Class
[B-1][CE-[1][2]][P] Certificates (the “Certificates”) which are held in the name
of [name of transferor] (the “Transferor”) to effect the transfer of the
Certificates to a person who wishes to take delivery thereof in the form
of an
equivalent beneficial interest [name of transferee] (the
“Transferee”).
In
connection with such request, the Transferor hereby certifies that such transfer
has been effected in accordance with the transfer restrictions set forth
in the
Agreement and the private placement memorandum dated January __, 2006 relating
to the Certificates and that the following additional requirements (if
applicable) were satisfied:
(a) the
offer
of the Certificates was not made to a person in the United States;
(b) at
the
time the buy order was originated, the Transferee was outside the United
States
or the Transferor and any person acting on its behalf reasonably believed
that
the Transferee was outside the United States;
(c) no
directed selling efforts were made in contravention of the requirements of
Rule
903(b) or 904(b) of Regulation S, as applicable;
(d) the
transfer or exchange is not part of a plan or scheme to evade the registration
requirements of the Securities Act;
(e) the
Transferee is not a U.S. Person, as defined in Regulation S under the Securities
Act;
(f) the
transfer was made in accordance with the applicable provisions of Rule 903(b)(2)
or (3) or Rule 904(b)(1), as the case may be; and
(g) the
Transferee understands that the Certificates have not been and will not be
registered under the Securities Act, that any offers, sales or deliveries
of the
Certificates purchased by the Transferee in the United States or to U.S.
persons
prior to the date that is 40 days after the later of (i) the commencement
of the
offering of the Certificates and (ii) the Closing Date, may constitute a
violation of United States law, and that (x) distributions of principal and
interest and (y) the exchange of beneficial interests in a Temporary Regulation
S Global Certificate for beneficial interests in the related Permanent
Regulation S Global Certificate, in each case, will be made in respect of
such
Certificates only following the delivery by the Holder of a certification
of
non-U.S. beneficial ownership, at the times and in the manner set forth in
the
Agreement.
You
are
entitled to rely upon this letter and are irrevocably authorized to produce
this
letter or a copy hereof to any interested party in any administrative or
legal
proceedings or official inquiry with respect to the matters covered
hereby.
|
[Name
of Transferor]
|
||||||||
|
By:
|
||||||||
|
Name:
|
||||||||
|
Title:
|
||||||||
EXHIBIT
B-2
FORM
OF
TRANSFEROR REPRESENTATION LETTER
____________,
20__
▇▇▇▇▇
Fargo Bank, N.A.
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Corporate Trust ACE 2006-SL1
|
Re:
|
ACE
Securities Corp. Home Equity Loan Trust, Series 2006-SL1
Asset
Backed Pass-Through Certificates,
Class
B-1, Class CE-1, Class CE-2, Class P and Class R
Certificates
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Ladies
and Gentlemen:
In
connection with the transfer by ________________ (the “Transferor”) to
__________________________ (the “Transferee”) of the captioned mortgage
pass-through certificates (the “Certificates”), the Transferor hereby certifies
as follows:
Neither
the 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.
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Very
truly yours,
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(Transferor)
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By:
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Name:
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Title:
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FORM
OF
TRANSFEREE LETTER
_______________,
20__
▇▇▇▇▇
Fargo Bank, N.A.
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Corporate Trust ACE 2006-SL1
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Re:
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ACE
Securities Corp. Home Equity Loan Trust, Series 2006-SL1
Asset
Backed Pass-Through Certificates,
Class
B-1, Class CE-1, Class CE-2, Class P and Class R
Certificates
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Ladies
and Gentlemen:
In
connection with the transfer by ______________________ (the “Transferor”) to
__________________________ (the “Transferee”) of the captioned mortgage
pass-through certificates (the “Certificates”), the Transferee hereby certifies
as follows:
1. The
Transferee 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
Transferee is acquiring the Certificates for its own account for investment
only
and not with a view to or for sale in connection with any distribution thereof
in any manner that would violate the Act or any applicable state securities
laws.
3. The
Transferee 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
Transferee 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 Transferee from the Depositor or the Transferor and is relevant
to the Transferee’s decision to purchase the Certificates. The Transferee has
had any questions arising from such review answered by the Depositor or the
Transferor to the satisfaction of the Transferee.
5. The
Transferee 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
1933
Act or any state securities law, or that would require registration or
qualification pursuant thereto. The Transferee will not sell or otherwise
transfer any of the Certificates, except in compliance with the provisions
of
the Pooling and Servicing Agreement.
6. The
Transferee: (a) is not an employee benefit plan or other plan subject to
the
prohibited transaction provisions of the Employee Retirement Income Security
Act
of 1974, as amended (“ERISA”), or Section 4975 of the Internal Revenue Code of
1986, as amended (the “Code”) (each, 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 within the meaning of the Department of Labor (“DOL”)
regulation at 29 C.F.R. § 2510.3-101 or (b) [[for Class CE-1, Class CE-2, Class
P and Class R] has provided the Trustee with an opinion of counsel on which
the
Depositor, the Master Servicer, the Securities Administrator, the Trustee
and
the Servicers may rely, acceptable to and in form and substance satisfactory
to
the Trustee to the effect that the purchase of Certificates is permissible
under
applicable law, will not constitute or result in any non-exempt prohibited
transaction under ERISA or Section 4975 of the Code and will not subject
the
Trust Fund, the Trustee, the Master Servicer, the Securities Administrator,
the
Depositor or the Servicers to any obligation or liability (including obligations
or liabilities under ERISA or Section 4975 of the Code) in addition to those
undertaken in the Pooling and Servicing Agreement.] [[for Class B-1] (i)
is an
insurance company, (ii) 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 (iii) (A) prior to the termination of the Supplemental Interest Trust,
the
acquisition and holding of such Certificate and the separate right to receive
payments from the Supplemental Interest Trust are eligible for the exemptive
relief under PTCE 95-60 and (B) subsequent to the termination of the
Supplemental Interest Trust, the conditions in Sections I and III of PTCE
95-60
have been satisfied.]
In
addition, the Transferee hereby certifies, represents and warrants to, and
covenants with, the Depositor, the Trustee, the Securities Administrator,
the
Master Servicer and the Servicers that the Transferee will not transfer such
Certificates to any Plan or person unless such Plan or person meets the
requirements set forth in paragraph 6 above.
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Very
truly yours,
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By:
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Name:
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Title:
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EXHIBIT
B-3
TRANSFER
AFFIDAVIT AND AGREEMENT
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STATE
OF NEW YORK
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)
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)
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ss.:
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COUNTY
OF NEW YORK
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)
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___________________________
being duly sworn, deposes, represents and warrants as follows:
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1.
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I
am a _____________________ of _______________________________ (the
“Owner”) a corporation duly organized and existing under the laws of
_________________________, the record owner of ACE Securities Corp.
Home
Equity Loan Trust, Series 2006-SL1 Asset Backed Pass-Through Certificates,
Class R Certificates (the “Class R Certificates”), on behalf of whom I
make this affidavit and agreement. Capitalized terms used but not
defined
herein have the respective meanings assigned thereto in the Pooling
and
Servicing Agreement pursuant to which the Class R Certificates
were
issued.
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2.
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The
Owner (i) is and will be a “Permitted Transferee” as of
____________________. ____ and (ii) is acquiring the Class R Certificates
for its own account or for the account of another Owner from which
it has
received an affidavit in substantially the same form as this affidavit.
A
“Permitted Transferee” is any person other than a “disqualified
organization” or a possession of the United States. For this purpose, a
“disqualified organization” means the United States, any state or
political subdivision thereof, any agency or instrumentality of
any of the
foregoing (other than an instrumentality all of the activities
of which
are subject to tax and, except for the Federal Home Loan Mortgage
Corporation, a majority of whose board of directors is not selected
by any
such governmental entity) or any foreign government, international
organization or any agency or instrumentality of such foreign government
or organization, any real electric or telephone cooperative, or
any
organization (other than certain farmers’ cooperatives) that is generally
exempt from federal income tax unless such organization is subject
to the
tax on unrelated business taxable
income.
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3.
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The
Owner is aware (i) of the tax that would be imposed on transfers
of the
Class R Certificates to disqualified organizations under the Internal
Revenue Code of 1986 that applies to all transfers of the Class
R
Certificates after April 31, 1988; (ii) that such tax would be
on the
transferor or, if such transfer is through an agent (which person
includes
a broker, nominee or middleman) for a non-Permitted Transferee,
on the
agent; (iii) that the person otherwise liable for the tax shall
be
relieved of liability for the tax if the transferee furnishes to
such
person an affidavit that the transferee is a Permitted Transferee
and, at
the time of transfer, such person does not have actual knowledge
that the
affidavit is false; and (iv) that each of the Class R Certificates
may be
a “noneconomic residual interest” within the meaning of proposed Treasury
regulations promulgated under the Code and that the transferor
of a
“noneconomic residual interest” will remain liable for any taxes due with
respect to the income on such residual interest, unless no significant
purpose of the transfer is to impede the assessment or collection
of
tax.
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4.
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The
Owner is aware of the tax imposed on a “pass-through entity” holding the
Class R Certificates if, at any time during the taxable year of
the
pass-through entity, a non-Permitted Transferee is the record holder
of an
interest in such entity. (For this purpose, a “pass-through entity”
includes a regulated investment company, a real estate investment
trust or
common trust fund, a partnership, trust or estate, and certain
cooperatives.)
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5.
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The
Owner is aware that the Securities Administrator will not register
the
transfer of any Class R Certificate unless the transferee, or the
transferee’s agent, delivers to the Securities Administrator, among other
things, an affidavit in substantially the same form as this affidavit.
The
Owner expressly agrees that it will not consummate any such transfer
if it
knows or believes that any of the representations contained in
such
affidavit and agreement are false.
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6.
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The
Owner consents to any additional restrictions or arrangements that
shall
be deemed necessary upon advice of counsel to constitute a reasonable
arrangement to ensure that the Class R Certificates will only be
owned,
directly or indirectly, by an Owner that is a Permitted
Transferee.
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7.
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The
Owner’s taxpayer identification number is
________________.
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8.
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The
Owner has reviewed the restrictions set forth on the face of the
Class R
Certificates and the provisions of Section 6.02(d) of the Pooling
and
Servicing Agreement under which the Class R Certificates were issued
(in
particular, clauses (iii)(A) and (iii)(B) of Section 6.02(d) which
authorize the Securities Administrator to deliver payments to a
person
other than the Owner and negotiate a mandatory sale by the Securities
Administrator in the event that the Owner holds such Certificate
in
violation of Section 6.02(d)); and that the Owner expressly agrees
to be
bound by and to comply with such restrictions and
provisions.
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9.
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The
Owner is not acquiring and will not transfer the Class R Certificates
in
order to impede the assessment or collection of any
tax.
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10.
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The
Owner anticipates that it will, so long as it holds the Class R
Certificates, have sufficient assets to pay any taxes owed by the
holder
of such Class R Certificates, and hereby represents to and for
the benefit
of the person from whom it acquired the Class R Certificates that
the
Owner intends to pay taxes associated with holding such Class R
Certificates as they become due, fully understanding that it may
incur tax
liabilities in excess of any cash flows generated by the Class
R
Certificates.
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11.
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The
Owner has no present knowledge that it may become insolvent or
subject to
a bankruptcy proceeding for so long as it holds the Class R
Certificates.
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12.
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The
Owner has no present knowledge or expectation that it will be unable
to
pay any United States taxes owed by it so long as any of the Certificates
remain outstanding.
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13.
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The
Owner is not acquiring the Class R Certificates with the intent
to
transfer the Class R Certificates to any person or entity that
will not
have sufficient assets to pay any taxes owed by the holder of such
Class R
Certificates, or that may become insolvent or subject to a bankruptcy
proceeding, for so long as the Class R Certificates remain
outstanding.
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14.
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The
Owner will, in connection with any transfer that it makes of the
Class R
Certificates, obtain from its transferee the representations required
by
Section 6.02(d) of the Pooling and Servicing Agreement under which
the
Class R Certificate were issued and will not consummate any such
transfer
if it knows, or knows facts that should lead it to believe, that
any such
representations are false.
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15.
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The
Owner will, in connection with any transfer that it makes of the
Class R
Certificates, deliver to the Securities Administrator an affidavit,
which
represents and warrants that it is not transferring the Class R
Certificates to impede the assessment or collection of any tax
and that it
has no actual knowledge that the proposed transferee: (i) has insufficient
assets to pay any taxes owed by such transferee as holder of the
Class R
Certificates; (ii) may become insolvent or subject to a bankruptcy
proceeding for so long as the Class R Certificates remains outstanding;
and (iii) is not a “Permitted
Transferee”.
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16.
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The
Owner is a citizen or resident of the United States, a corporation,
partnership or other entity created or organized in, or under the
laws of,
the United States or any political subdivision thereof, or an estate
or
trust whose income from sources without the United States may be
included
in gross income for United States federal income tax purposes regardless
of its connection with the conduct of a trade or business within
the
United States.
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17.
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The
Owner of the Class R Certificate, hereby agrees that in the event
that the
Trust Fund created by the Pooling and Servicing Agreement is terminated
pursuant to Section 10.01 thereof, the undersigned shall assign
and
transfer to the Holders of the Class CE-1, Class CE-2 and the Class
P
Certificates any amounts in excess of par received in connection
with such
termination. Accordingly, in the event of such termination, the
Securities
Administrator is hereby authorized to withhold any such amounts
in excess
of par and to pay such amounts directly to the Holders of the Class
CE-1,
Class CE-2 and the Class P Certificates. This agreement shall bind
and be
enforceable against any successor, transferee or assigned of the
undersigned in the Class R Certificate. In connection with any
transfer of
the Class R Certificate, the Owner shall obtain an agreement substantially
similar to this clause from any subsequent
owner.
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IN
WITNESS WHEREOF, the Owner has caused this instrument to be executed on its
behalf, pursuant to the authority of its Board of Directors, by its [Vice]
President, attested by its [Assistant] Secretary, this ____ day of
_________________, ____.
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[OWNER]
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By:
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Name:
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Title:
[Vice] President
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ATTEST:
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By:
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Name:
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Title:
[Assistant] Secretary
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Personally
appeared before me the above-named __________________, known or proved to
me to
be the same person who executed the foregoing instrument and to be a [Vice]
President of the Owner, and acknowledged to me that [he/she] executed the
same
as [his/her] free act and deed and the free act and deed of the
Owner.
Subscribed
and sworn before me this ______________ day of __________, ____.
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Notary
Public
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County
of _____________________________
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|
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State
of _______________________________
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My
Commission expires:
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FORM
OF
TRANSFEROR AFFIDAVIT
|
STATE
OF NEW YORK
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF NEW YORK
|
)
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_________________________,
being duly sworn, deposes, represents and warrants as follows:
1. I
am
a ____________________
of _________________________ (the “Owner”), a corporation duly organized and
existing under the laws of _____________, on behalf of whom I make this
affidavit.
2. The
Owner
is not transferring the Class R Certificates (the “Residual Certificates”) to
impede the assessment or collection of any tax.
3. The
Owner
has no actual knowledge that the Person that is the proposed transferee (the
“Purchaser”) of the Residual Certificates: (i) has insufficient assets to pay
any taxes owed by such proposed transferee as holder of the Residual
Certificates; (ii) may become insolvent or subject to a bankruptcy proceeding
for so long as the Residual Certificates remain outstanding and (iii) is
not a
Permitted Transferee.
4. The
Owner
understands that the Purchaser has delivered to the Trustee or a transfer
affidavit and agreement in the form attached to the Pooling and Servicing
Agreement as Exhibit B-2. The Owner does not know or believe that any
representation contained therein is false.
5. At
the
time of transfer, the Owner has conducted a reasonable investigation of the
financial condition of the Purchaser as contemplated by Treasury Regulations
Section 1.860E-1(c)(4)(i) and, as a result of that investigation, the Owner
has
determined that the Purchaser has historically paid its debts as they became
due
and has found no significant evidence to indicate that the Purchaser will
not
continue to pay its debts as they become due in the future. The Owner
understands that the transfer of a Residual Certificate may not be respected
for
United States income tax purposes (and the Owner may continue to be liable
for
United States income taxes associated therewith) unless the Owner has conducted
such an investigation.
6. Capitalized
terms not otherwise defined herein shall have the meanings ascribed to them
in
the Pooling and Servicing Agreement.
IN
WITNESS WHEREOF, the Owner has caused this instrument to be executed on its
behalf, pursuant to the authority of its Board of Directors, by its [Vice]
President, attested by its [Assistant] Secretary, this ____ day of
________________, ____.
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[OWNER]
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||||||||
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By:
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Name:
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Title:
[Vice] President
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||||||||
ATTEST:
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By:
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||
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Name:
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||
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Title:
[Assistant] Secretary
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Personally
appeared before me the above-named _________________, known or proved to
me to
be the same person who executed the foregoing instrument and to be a [Vice]
President of the Owner, and acknowledged to me that [he/she] executed the
same
as [his/her] free act and deed and the free act and deed of the
Owner.
Subscribed
and sworn before me this ______ day of _____________, ____.
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Notary
Public
|
|
|
County
of _____________________________
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|
|
State
of _______________________________
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|
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My
Commission expires:
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EXHIBIT
C
BACK-UP
CERTIFICATION
Re: __________
(the “Trust”)
Mortgage
Pass-Through Certificates, Series 2006-SL1
I,
[identify the certifying individual], certify to ACE Securities Corp. (the
“Depositor”), HSBC Bank USA, National Association (the “Trustee”) and ▇▇▇▇▇
Fargo Bank, National Association (the “Master Servicer”), and their respective
officers, directors and affiliates, and with the knowledge and intent that
they
will rely upon this certification, that:
(1) I
have
reviewed the servicer compliance statement of the Company provided in accordance
with Item 1123 of Regulation AB (the “Compliance Statement”), the report on
assessment of the Company’s compliance with the servicing criteria set forth in
Item 1122(d) of Regulation AB (the “Servicing Criteria”), provided in accordance
with Rules 13a-18 and 15d-18 under Securities Exchange Act of 1934, as amended
(the “Exchange Act”) and Item 1122 of Regulation AB (the “Servicing
Assessment”), the registered public accounting firm’s attestation report
provided in accordance with Rules 13a-18 and 15d-18 under the Exchange Act
and
Section 1122(b) of Regulation AB (the “Attestation
Report”), and all servicing reports, officer’s certificates and other
information relating to the servicing of the Mortgage Loans by the Company
during 200[ ] that were delivered by the Company to the Master Servicer pursuant
to the Agreement (collectively, the “Company Servicing
Information”);
(2) Based
on
my knowledge, the Company Servicing Information, taken as a whole, does not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in the light of the circumstances
under
which such statements were made, not misleading with respect to the period
of
time covered by the Company Servicing Information;
(3) Based
on
my knowledge, all of the Company Servicing Information required to be provided
by the Company under the Agreement has been provided to Master
Servicer;
(4) I
am
responsible for reviewing the activities performed by the Company as servicer
under the Agreement, and based on my knowledge and the compliance review
conducted in preparing the Compliance Statement and except as disclosed in
the
Compliance Statement, the Servicing Assessment or the Attestation Report,
the
Company has fulfilled its obligations under the Agreement in all material
respects; and
(5) The
Compliance Statement required to be delivered by the Company pursuant to
the
Agreement, and the Servicing Assessment and Attestation Report required to
be
provided by the Company and by any Subservicer or Subcontractor pursuant
to the
Agreement, have been provided to Master Servicer. Any material instances
of
noncompliance described in such reports have been disclosed to Master Servicer.
Any material instance of noncompliance with the Servicing Criteria has been
disclosed in such reports.
Capitalized
terms used and not otherwise defined herein have the meanings assigned thereto
in the Pooling and Servicing Agreement (the “Agreement”), dated as of January 1,
2006, among ACE Securities Corp., ▇▇▇▇▇ Fargo Bank, N.A., GMAC Mortgage
Corporation, Ocwen Loan Servicing, LLC and HSBC Bank USA, National
Association
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Date:
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[Signature]
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||
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[Title]
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||
EXHIBIT
D
FORM
OF
POWER OF ATTORNEY
RECORDING
REQUESTED BY
AND
WHEN
RECORDED MAIL TO
[Servicer]
[Servicer’s
Address]
Attn:
_________________________________
LIMITED
POWER OF ATTORNEY
KNOW
ALL
MEN BY THESE PRESENTS, that ________________,
having
its principal place of business at ____________________,
as
Trustee (the “Trustee”) pursuant to that Pooling and Servicing Agreement among
___________________
(the
“Depositor”), ▇▇▇▇▇ Fargo Bank, National Association, as Master Servicer and
Securities Administrator, GMAC Mortgage Corporation as a servicer (“GMAC”),
Ocwen Loan Servicing, LLC as a servicer (“Ocwen”) and the Trustee, dated as of
January 1, 2006 (the “Pooling and Servicing Agreement”), hereby constitutes and
appoints [GMAC][Ocwen] (the “Servicer”), by and through the Servicer’s officers,
the Trustee’s true and lawful Attorney-in-Fact, in the Trustee’s name, place and
stead and for the Trustee’s benefit, in connection with all mortgage loans
serviced by the Servicer pursuant to the Pooling and Servicing Agreement
for the
purpose of performing all acts and executing all documents in the name of
the
Trustee as may be customarily and reasonably necessary and appropriate to
effectuate the following enumerated transactions in respect of any of the
mortgages or deeds of trust (the “Mortgages” and the “Deeds of Trust”,
respectively) and promissory notes secured thereby (the “Mortgage Notes”) for
which the undersigned is acting as Trustee for various certificateholders
(whether the undersigned is named therein as mortgagee or beneficiary or
has
become mortgagee by virtue of endorsement of the Mortgage Note secured by
any
such Mortgage or Deed of Trust) and for which the Servicer is acting as
servicer, all subject to the terms of the Pooling and Servicing
Agreement.
This
appointment shall apply to the following enumerated transactions
only:
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1.
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The
modification or re-recording of a Mortgage or Deed of Trust, where
said
modification or re-recordings is for the purpose of correcting
the
Mortgage or Deed of Trust to conform same to the original intent
of the
parties thereto or to correct title errors discovered after such
title
insurance was issued and said modification or re-recording, in
either
instance, does not adversely affect the lien of the Mortgage or
Deed of
Trust as insured.
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2.
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The
subordination of the lien of a Mortgage or Deed of Trust to an
easement in
favor of a public utility company of a government agency or unit
with
powers of eminent domain; this section shall include, without limitation,
the execution of partial satisfactions/releases, partial reconveyances
or
the execution or requests to trustees to accomplish
same.
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3.
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The
conveyance of the properties to the mortgage insurer, or the closing
of
the title to the property to be acquired as real estate owned,
or
conveyance of title to real estate
owned.
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4. The
completion of loan assumption agreements.
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5.
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The
full satisfaction/release of a Mortgage or Deed of Trust or full
conveyance upon payment and discharge of all sums secured thereby,
including, without limitation, cancellation of the related Mortgage
Note.
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6.
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The
assignment of any Mortgage or Deed of Trust and the related Mortgage
Note,
in connection with the repurchase of the mortgage loan secured
and
evidenced thereby.
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7.
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The
full assignment of a Mortgage or Deed of Trust upon payment and
discharge
of all sums secured thereby in conjunction with the refinancing
thereof,
including, without limitation, the assignment of the related Mortgage
Note.
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8.
|
With
respect to a Mortgage or Deed of Trust, the foreclosure, the taking
of a
deed in lieu of foreclosure, or the completion of judicial or non-judicial
foreclosure or termination, cancellation or rescission of any such
foreclosure, including, without limitation, any and all of the
following
acts:
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a.
|
the
substitution of trustee(s) serving under a Deed of Trust, in accordance
with state law and the Deed of
Trust;
|
|
b.
|
the
preparation and issuance of statements of breach or
non-performance;
|
|
c.
|
the
preparation and filing of notices of default and/or notices of
sale;
|
|
d.
|
the
cancellation/rescission of notices of default and/or notices of
sale;
|
|
e.
|
the
taking of a deed in lieu of foreclosure;
and
|
|
f.
|
the
preparation and execution of such other documents and performance
of such
other actions as may be necessary under the terms of the Mortgage,
Deed of
Trust or state law to expeditiously complete said transactions
in
paragraphs 8.a. through 8.e.,
above.
|
The
undersigned gives said Attorney-in-Fact full power and authority to execute
such
instruments and to do and perform all and every act and thing necessary and
proper to carry into effect the power or powers granted by or under this
Limited
Power of Attorney as fully as the undersigned might or could do, and hereby
does
ratify and confirm to all that said Attorney-in-Fact shall lawfully do or
cause
to be done by authority hereof.
Third
parties without actual notice may rely upon the exercise of the power granted
under this Limited Power of attorney; and may be satisfied that this Limited
Power of Attorney shall continue in full force and effect and has not been
revoked unless an instrument of revocation has been made in writing by the
undersigned.
IN
WITNESS WHEREOF, ________________
as
Trustee pursuant to that Pooling and Servicing Agreement among the Depositor,
▇▇▇▇▇ Fargo Bank, National Association, GMAC Mortgage Corporation, Ocwen
Loan
Servicing, LLC and the Trustee, dated as of ___________
1, 200__
(_____________
Asset
Backed Certificates, Series 200__-___), has caused its corporate seal to
be
hereto affixed and these presents to be signed and acknowledged in its name
and
behalf by ____________
its duly
elected and authorized Vice President this _________
day of
_________,
200__.
|
as
Trustee for _____ Asset
Backed
Certificates, Series 200__-___
|
||||||||
|
By:
|
||||||||
|
STATE
OF _____________
|
|
COUNTY
OF ___________
|
On
_______________,
200__,
before me, the undersigned, a Notary Public in and for said state, personally
appeared ____________,
Vice
President of ____________________
as
Trustee for ___________ Asset Backed Certificates, Series 200__-___, personally
known to me to be the person whose name is subscribed to the within instrument
and acknowledged to me that he/she executed that same in his/her authorized
capacity, and that by his/her signature on the instrument the entity upon
behalf
of which the person acted and executed the instrument.
WITNESS
my hand and official seal.
(SEAL)
|
Notary
Public
|
|
|
My
Commission Expires
_________________
|
EXHIBIT
E
SERVICING
CRITERIA
Schedule
1122 (Pooling and Servicing Agreement)
Assessments
of Compliance and Attestation Reports Servicing Criteria2
|
Reg.
AB Item 1122(d) Servicing Criteria
|
Depositor
|
Seller
|
Servicer
|
Trustee
|
Custodian
|
Paying
Agent
|
Master
Servicer
|
Securities
Administrator
|
|
(1) General
Servicing Considerations
|
||||||||
|
(i) monitoring
performance or other triggers and events of default
|
X
|
X
|
X
|
|||||
|
(ii) monitoring
performance of vendors of activities outsourced
|
X
|
|||||||
|
(ii) maintenance
of back-up servicer for pool assets
|
||||||||
|
(iv) fidelity
bond and E&O policies in effect
|
X
|
X
|
||||||
|
(2) Cash
Collection and Administration
|
||||||||
|
(i) timing
of deposits to custodial account
|
X
|
X
|
X
|
X
|
||||
|
(ii) wire
transfers to investors by authorized personnel
|
X
|
X
|
X
|
|||||
|
(iii) advances
or guarantees made, reviewed and approved as required
|
X
|
X
|
||||||
|
(iv) accounts
maintained as required
|
X
|
X
|
X
|
|||||
|
(v) accounts
at federally insured depository institutions
|
X
|
X
|
X
|
|||||
|
(vi) unissued
checks safeguarded
|
X
|
X
|
X
|
|||||
|
(vii) monthly
reconciliations of accounts
|
X
|
X
|
X
|
X
|
||||
|
(3) Investor
Remittances and Reporting
|
||||||||
|
(i) investor
reports
|
X
|
X
|
X
|
|||||
|
(ii) remittances
|
X
|
X
|
X
|
|||||
|
(iii) proper
posting of distributions
|
X
|
X
|
X
|
|||||
|
(iv) reconciliation
of remittances and payment statements
|
X
|
X
|
X
|
X
|
||||
|
(4) Pool
Asset Administration
|
||||||||
|
(i) maintenance
of pool collateral
|
X
|
X
|
||||||
|
(ii) safeguarding
of pool assets/documents
|
X
|
X
|
||||||
|
(iii) additions,
removals and substitutions of pool assets
|
X
|
|||||||
|
(iv) posting
and allocation of pool asset payments to pool assets
|
X
|
|||||||
|
(v) reconciliation
of servicer records
|
X
|
|||||||
|
(vi) modifications
or other changes to terms of pool assets
|
X
|
|||||||
|
(vii) loss
mitigation and recovery actions
|
X
|
|||||||
|
(viii)records
regarding collection efforts
|
X
|
|||||||
|
(ix) adjustments
to variable interest rates on pool assets
|
X
|
|||||||
|
(x) matters
relating to funds held in trust for obligors
|
X
|
|||||||
|
(xi) payments
made on behalf of obligors (such as for taxes or
insurance)
|
X
|
|||||||
|
(xii) late
payment penalties with respect to payments made on behalf of obligors
|
X
|
|||||||
|
(xiii)records
with respect to payments made on behalf of obligors
|
X
|
|||||||
|
(xiv) recognition
and recording of delinquencies, charge-offs and uncollectible
accounts
|
X
|
|||||||
|
(xv) maintenance
of external credit enhancement or other support
|
X
|
*
The
descriptions of the Item 1122(d) servicing criteria use key words and
phrases
and are not verbatim recitations of the servicing criteria. Refer to
Regulation
AB, Item 1122 for a full description of servicing
criteria.
EXHIBIT
F
MORTGAGE
LOAN PURCHASE AGREEMENT
This
is a
Mortgage Loan Purchase Agreement (this “Agreement”), dated January 27, 2006,
between DB Structured Products, Inc., a Delaware corporation (the “Seller”) and
ACE Securities Corp., a Delaware corporation (the “Purchaser”).
Preliminary
Statement
The
Seller intends to sell the Mortgage Loans (as hereinafter identified) to
the
Purchaser on the terms and subject to the conditions set forth in this
Agreement. The Purchaser intends to deposit the Mortgage Loans into a mortgage
pool comprising the Trust Fund. The Trust Fund will be evidenced by a single
series of mortgage pass-through certificates designated as ACE Securities
Corp.
Home Equity Loan Trust, Series 2006-SL1, Asset Backed Pass-Through Certificates
(the “Certificates”). The Certificates will consist of sixteen classes of
certificates. The Certificates will be issued pursuant to a Pooling and
Servicing Agreement for ACE Securities Corp. Home Equity Loan Trust, Series
2006-SL1, Asset Backed Pass-Through Certificates, dated as of January 1,
2006
(the “Pooling and Servicing Agreement”), among the Purchaser as depositor, ▇▇▇▇▇
Fargo Bank, N.A. as master servicer (the “Master Servicer”) and securities
administrator (the “Securities Administrator”), Ocwen Loan Servicing, LLC as a
servicer (“Ocwen” or a “Servicer”), GMAC Mortgage Corporation as a servicer
(“GMAC” or a “Servicer” and together with Ocwen collectively, the “Servicers”)
and HSBC Bank USA, National Association as trustee (the “Trustee”). The
Purchaser will sell the Class A, Class M-1A, Class M-1B, Class M-2, Class
M-3,
Class M-4, Class M-5, Class M-6, Class M-7, Class M-8 and Class M-9 Certificates
(collectively, the “Mezzanine Certificates”) to Deutsche Bank Securities Inc.
(“DBSI”), pursuant to the Amended and Restated Underwriting Agreement, dated as
of June 24, 1999, as amended and restated to and including January 25,
2006,
between the Purchaser and DBSI, and the Terms Agreement, dated January
26, 2006
(collectively, the “Underwriting Agreement”), between the Purchaser and DBSI.
The Purchaser will sell the Class B-1 Certificates to DBSI pursuant to
the
Purchase Agreement dated as of January 26, 2006 between Purchaser and DBSI.
Capitalized terms used but not defined herein shall have the meanings set
forth
in the Pooling and Servicing Agreement.
The
parties hereto agree as follows:
SECTION
1. Agreement
to Purchase.
The
Seller hereby sells, and the Purchaser hereby purchases, on January 27,
2006
(the “Closing Date”), certain conventional, one- to four-family, fixed-rate,
second lien, residential mortgage loans (the “Mortgage Loans”), having an
aggregate principal balance as of the close of business on January 1, 2006
(the
“Cut-off Date”) of approximately $421,957,378 (the “Closing Balance”), after
giving effect to all payments due on the Mortgage Loans on or before the
Cut-off
Date, whether or not received, including the right to any Prepayment Charges
payable by the related Mortgagors in connection with any Principal Prepayments
on the Mortgage Loans.
SECTION
2. Mortgage
Loan Schedule.
The
Purchaser and the Seller have agreed upon which of the mortgage loans owned
by
the Seller are to be purchased by the Purchaser pursuant to this Agreement
and
the Seller will prepare or cause to be prepared on or prior to the Closing
Date
a final schedule (the “Closing Schedule”) that shall describe such Mortgage
Loans and set forth all of the Mortgage Loans to be purchased under this
Agreement, including the Prepayment Charges. The Closing Schedule will
conform
to the requirements set forth in this Agreement and to the definition of
“Mortgage Loan Schedule” under the Pooling and Servicing Agreement.
SECTION
3. Consideration.
(a) In
consideration for the Mortgage Loans to be purchased hereunder, the Purchaser
shall, as described in Section 8, (i) pay to or upon the order of the Seller
in
immediately available funds an amount (the “Purchase Price”) equal to (i)
$________*1
and (ii)
a 100% interest in the Class CE-1, Class CE-2, Class P and the Class R
Certificates (collectively the “DB Certificates”). The DB Certificates shall be
in the name of “Deutsche Bank Securities Inc.”
(b) The
Purchaser or any assignee, transferee or designee of the Purchaser shall
be
entitled to all scheduled payments of principal due after the Cut-off Date,
all
other payments of principal due and collected after the Cut-off Date, and
all
payments of interest on the Mortgage Loans allocable to the period after
the
Cut-off Date. All scheduled payments of principal and interest due on or
before
the Cut-off Date and collected after the Cut-off Date shall belong to the
Seller.
(c) Pursuant
to the Pooling and Servicing Agreement, the Purchaser will assign all of
its
right, title and interest in and to the Mortgage Loans, together with its
rights
under this Agreement, to the Trustee for the benefit of the
Certificateholders.
* Please
contact the Mortgage Loan Seller for this
information.
SECTION
4. Transfer
of the Mortgage Loans.
(a) Possession
of Mortgage Files.
The
Seller does hereby sell to the Purchaser, without recourse but subject
to the
terms of this Agreement, all of its right, title and interest in, to and
under
the Mortgage Loans, including the related Prepayment Charges. The contents
of
each Mortgage File not delivered to the Purchaser or to any assignee, transferee
or designee of the Purchaser on or prior to the Closing Date are and shall
be
held in trust by the Seller for the benefit of the Purchaser or any assignee,
transferee or designee of the Purchaser. Upon the sale of the
Mortgage Loans, the ownership of each Mortgage Note, the related Mortgage
and
the other contents of the related Mortgage File is vested in the Purchaser
and
the ownership of all records and documents with respect to the related
Mortgage
Loan prepared by or that come into the possession of the Seller on or after
the
Closing Date shall immediately vest in the Purchaser and shall be delivered
immediately to the Purchaser or as otherwise directed by the
Purchaser.
(b) Delivery
of Mortgage Loan Documents.
The
Seller will, on or prior to the Closing Date, deliver or cause to be delivered
to the Purchaser or any assignee, transferee or designee of the Purchaser
each
of the following documents for each Mortgage Loan:
(i) the
original Mortgage Note, including any riders thereto, endorsed in blank,
with
all prior and intervening endorsements showing a complete chain of endorsement
from the originator to the Person so endorsing to the Trustee;
(ii) the
original Mortgage or a certified copy thereof, including any riders thereto,
with evidence of recording thereon, and the original recorded power of
attorney,
if the Mortgage was executed pursuant to a power of attorney, with evidence
of
recording thereon, and in the case of each MOM Loan, the original Mortgage,
noting the presence of the MIN of the Loan and either language indicating
that
the Mortgage Loan is a MOM Loan or if the Mortgage Loan was not a MOM Loan
at
origination, the original Mortgage and the assignment thereof to MERS®, with
evidence of recording indicated thereon;
(iii) an
original Assignment of Mortgage executed in blank;
(iv) the
original recorded Assignment or Assignments of the Mortgage, or a certified
copy
or copies thereof, showing a complete chain of assignment from the originator
to
the last Person assigning the Mortgage;
(v) the
original or copies of each assumption, modification, written assurance
or
substitution agreement, if any;
(vi) the
original lender’s title insurance policy, together with all endorsements or
riders that were issued with or subsequent to the issuance of such policy,
insuring the priority of the Mortgage as a second lien on the Mortgaged
Property
represented therein as a fee interest vested in the Mortgagor;
(vii) the
original of any guarantee executed in connection with the Mortgage Note,
if any;
and
(viii) the
original of any security agreement, chattel mortgage or equivalent document
executed in connection with the Mortgage, if any.
Notwithstanding
anything to the contrary contained in this Section 4, with respect to a
maximum
of approximately 1.00% of the Mortgage Loans, by aggregate principal balance
of
the Mortgage Loans as of the Cut-off Date, if any original Mortgage Note
referred to in Section 4(b)(i) above cannot be located, the obligations
of the
Seller to deliver such documents shall be deemed to be satisfied upon delivery
to the Purchaser or any assignee, transferee or designee of the Purchaser
of a
photocopy of such Mortgage Note, if available, with a lost note affidavit
substantially in the form of Exhibit 1 attached hereto. If any of the original
Mortgage Notes for which a lost note affidavit was delivered to the Purchaser
or
any assignee, transferee or designee of the Purchaser is subsequently located,
such original Mortgage Note shall be delivered to the Purchaser or any
assignee,
transferee or designee of the Purchaser within three (3) Business Days;
and if
any document referred to in Section 4(b)(ii) or 4(b)(iv) above has been
submitted for recording but either (x) has not been returned from the applicable
public recording office or (y) has been lost or such public recording office
has
retained the original of such document, the obligations of the Seller hereunder
shall be deemed to have been satisfied upon delivery to the Purchaser or
any
assignee, transferee or designee of the Purchaser promptly upon receipt
thereof
by or on behalf of the Seller of either the original or a copy of such
document
certified by the applicable public recording office to be a true and complete
copy of the original.
In
the
event that the original lender’s title insurance policy has not yet been issued,
the Seller shall deliver to the Purchaser or any assignee, transferee or
designee of the Purchaser a written commitment or interim binder or preliminary
report of title issued by the title insurance or escrow company. The Seller
shall deliver such original title insurance policy to the Purchaser or
any
assignee, transferee or designee of the Purchaser promptly upon receipt
by the
Seller, if any.
Each
original document relating to a Mortgage Loan which is not delivered to
the
Purchaser or its assignee, transferee or designee, if held by the Seller,
shall
be so held for the benefit of the Purchaser, its assignee, transferee or
designee.
In
connection with the assignment of any Mortgage Loan registered on the MERS®
System, the Seller further agrees that it will cause, at the Seller’s own
expense, within 30 days after the Closing Date, the MERS® System to indicate
that such Mortgage Loans have been assigned by the Seller to the Purchaser
and
by the Purchaser to the Trustee in accordance with this Agreement for the
benefit of the Certificateholders by including (or deleting, in the case
of
Mortgage Loans which are repurchased in accordance with this Agreement)
in such
computer files (a) the code in the field which identifies the specific
Trustee
and (b) the code in the field “Pool Field” which identifies the series of the
Certificates issued in connection with such Mortgage Loans. The Seller
further
agrees that it will not, and will not permit the Servicers or the Master
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 or the
Pooling and Servicing Agreement.
(c) Acceptance
of Mortgage Loans.
The
documents delivered pursuant to Section 4(b) hereof shall be reviewed by
the
Purchaser or any assignee, transferee or designee of the Purchaser at any
time
before or after the Closing Date (and with respect to each document permitted
to
be delivered after the Closing Date, within seven days of its delivery)
to
ascertain that all required documents have been executed and received and
that
such documents relate to the Mortgage Loans identified on the Closing
Schedule.
(d) Transfer
of Interest in Agreements.
The
Purchaser has the right to assign its interest under this Agreement, in
whole or
in part, to the Trustee, as may be required to effect the purposes of the
Pooling and Servicing Agreement, without the consent of the Seller, and
the
assignee shall succeed to the rights and obligations hereunder of the
Purchaser. Any expense reasonably incurred by or on behalf of the
Purchaser or the Trustee in connection with enforcing any obligations of
the
Seller under this Agreement will be promptly reimbursed by the
Seller.
(e) Examination
of Mortgage Files.
Prior
to the Closing Date, the Seller shall either (i) deliver in escrow to the
Purchaser or to any assignee, transferee or designee of the Purchaser for
examination the Mortgage File pertaining to each Mortgage Loan, or (ii)
make
such Mortgage Files available to the Purchaser or to any assignee, transferee
or
designee of the Purchaser for examination. Such examination may be
made by the Purchaser or the Trustee, and their respective designees, upon
reasonable notice to the Seller during normal business hours before the
Closing
Date and within sixty (60) days after the Closing Date. If any such
person makes such examination prior to the Closing Date and identifies
any
Mortgage Loans that do not conform to the requirements of the Purchaser
as
described in this Agreement, such Mortgage Loans shall be deleted from
the
Closing Schedule. The Purchaser may, at its option and without notice
to the Seller, purchase all or part of the Mortgage Loans without conducting
any
partial or complete examination. The fact that the Purchaser or any
person has conducted or has failed to conduct any partial or complete
examination of the Mortgage Files shall not affect the rights of the Purchaser
or any assignee, transferee or designee of the Purchaser to demand repurchase
or
other relief as provided herein or under the Pooling and Servicing
Agreement.
SECTION
5. Representations,
Warranties and Covenants of the Seller.
The
Seller hereby represents and warrants to the Purchaser, as of the date
hereof
and as of the Closing Date, and covenants, that:
(i) The
Seller is a Delaware corporation with full corporate power and authority
to
conduct its business as presently conducted by it to the extent material
to the
consummation of the transactions contemplated herein. The Agreement has
been
duly authorized, executed and delivered by the Seller. The Seller had the
full
corporate power and authority to own the Mortgage Loans and to transfer
and
convey the Mortgage Loans to the Purchaser and has the full corporate power
and
authority to execute and deliver, engage in the transactions contemplated
by,
and perform and observe the terms and conditions of this Agreement;
(ii) The
Seller has duly authorized the execution, delivery and performance of this
Agreement, has duly executed and delivered this Agreement, and this Agreement,
assuming due authorization, execution and delivery by the Purchaser, constitutes
a legal, valid and binding obligation of the Seller, enforceable against
it in
accordance with its terms except as the enforceability thereof may be limited
by
bankruptcy, insolvency or reorganization or by general principles of
equity;
(iii) The
execution, delivery and performance of this Agreement by the Seller (x)
does not
conflict and will not conflict with, does not breach and will not result
in a
breach of and does not constitute and will not constitute a default (or
an
event, which with notice or lapse of time or both, would constitute a default)
under (A) any terms or provisions of the organizational documents of the
Seller,
(B) any term or provision of any material agreement, contract, instrument
or
indenture, to which the Seller is a party or by which the Seller or any
of its
property is bound, or (C) any law, rule, regulation, order, judgment, writ,
injunction or decree of any court or governmental authority having jurisdiction
over the Seller or any of its property and (y) does not create or impose
and
will not result in the creation or imposition of any lien, charge or encumbrance
(other than any created hereby in favor of the Purchaser and its assignees)
which would have a material adverse effect upon the Mortgage Loans or any
documents or instruments evidencing or securing the Mortgage Loans;
(iv) No
consent, approval, authorization or order of, registration or filing with,
or
notice on behalf of the Seller to any governmental authority or court is
required, under federal laws or the laws of the State of New York, for
the
execution, delivery and performance by the Seller of, or compliance by
the
Seller with, this Agreement or the consummation by the Seller of any other
transaction contemplated hereby and by the Pooling and Servicing Agreement;
provided, however, that the Seller makes no representation or warranty
regarding
federal or state securities laws in connection with the sale or distribution
of
the Certificates;
(v) The
Seller is not in violation of, and the execution and delivery of this Agreement
by the Seller and its performance and compliance with the terms of this
Agreement will not constitute a violation with respect to, any order or
decree
of any court or any order or regulation of any federal, state, municipal
or
governmental agency having jurisdiction over the Seller or its assets,
which
violation might have consequences that would materially and adversely affect
the
condition (financial or otherwise) or the operation of the Seller or its
assets
or might have consequences that would materially and adversely affect the
performance of its obligations and duties hereunder;
(vi) The
Seller does not believe, nor does it have any reason or cause to believe,
that
it cannot perform each and every covenant contained in this
Agreement;
(vii) Immediately
prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated,
the Seller was the owner of the related Mortgage and the indebtedness evidenced
by the related Mortgage Note, and, upon the payment to the Seller of the
Purchase Price, in the event that the Seller retains or has retained record
title, the Seller shall retain such record title to each Mortgage, each
related
Mortgage Note and the related Mortgage Files with respect thereto in trust
for
the Purchaser as the owner thereof from and after the date hereof;
(viii) There
are
no actions or proceedings against, or investigations known to it of, the
Seller
before any court, administrative or other tribunal (A) that might prohibit
its
entering into this Agreement, (B) seeking to prevent the sale of the Mortgage
Loans by the Seller or the consummation of the transactions contemplated
by this
Agreement or (C) that might prohibit or materially and adversely affect
the
performance by the Seller of its obligations under, or validity or
enforceability of, this Agreement;
(ix) The
consummation of the transactions contemplated by this Agreement are in
the
ordinary course of business of the Seller, and the transfer, assignment
and
conveyance of the Mortgage Notes and the Mortgages by the Seller pursuant
to
this Agreement are not subject to the bulk transfer or any similar statutory
provisions in effect in any relevant jurisdiction, except any as may have
been
complied with;
(x) The
Seller has not dealt with any broker, investment banker, agent or other
person,
except for the Purchaser or any of its affiliates, that may be entitled
to any
commission or compensation in connection with the sale of the Mortgage
Loans
(except that an entity that previously financed the Seller’s ownership of the
Mortgage Loans may be entitled to a fee to release its security interest
in the
Mortgage Loans, which fee shall have been paid and which security interest
shall
have been released on or prior to the Closing Date);
(xi) There
is
no litigation currently pending or, to the best of the Seller’s knowledge
without independent investigation, threatened against the Seller that would
reasonably be expected to adversely affect the transfer of the Mortgage
Loans,
the issuance of the Certificates or the execution, delivery, performance
or
enforceability of this Agreement, or that would result in a material adverse
change in the financial condition of the Seller; and
(xii) The
information set forth in the applicable part of the Closing Schedule relating
to
the existence of a Prepayment Charge is complete, true and correct in all
material respects at the date or dates respecting which such information
is
furnished and each Prepayment Charge is permissible and enforceable in
accordance with its terms upon the mortgagor’s full and voluntary principal
prepayment under applicable law, except to the extent that: (1) the
enforceability thereof may be limited by bankruptcy, insolvency, moratorium,
receivership and other similar laws relating to creditors’ rights; (2) the
collectability thereof may be limited due to acceleration in connection
with a
foreclosure or other involuntary prepayment; or (3) subsequent changes
in
applicable law may limit or prohibit enforceability thereof under applicable
law.
SECTION
6. Representations
and Warranties of the Seller Relating to the Mortgage Loans.
The
Seller hereby represents and warrants to the Purchaser that as to each
Mortgage
Loan as of the Closing Date:
(i) Information
provided to the Rating Agencies, including the loan level detail, is true
and
correct according to the Rating Agency requirements;
(ii) No
error,
omission, misrepresentation, negligence, fraud or similar occurrence with
respect to a Mortgage Loan has taken place on the part of any person, including
without limitation the Mortgagor, any appraiser, any builder or developer,
or
any other party involved in the origination of the Mortgage Loan or in
the
application of any insurance in relation to such Mortgage Loan;
(iii) Except
as
set forth on the Closing Schedule, all payments required to be made prior
to the
Cut-off Date with respect to each Mortgage Loan have been made;
(iv) [Reserved];
(v) There
are
no delinquent taxes, assessment liens or insurance premiums affecting the
related Mortgaged Property;
(vi) The
terms
of the Mortgage Note and the Mortgage have not been materially impaired,
waived,
altered or modified in any respect, except by written instruments, recorded
in
the applicable public recording office if necessary to maintain the lien
priority of the Mortgage. The substance of any such waiver, alteration
or
modification has been approved by the title insurer, to the extent required
by
the related policy. No Mortgagor has been released, in whole or in part,
except
in connection with an assumption agreement (approved by the title insurer
to the
extent required by the policy) and which assumption agreement has been
delivered
to the Trustee;
(vii) The
Mortgaged Property is insured against loss by fire and hazards of extended
coverage (excluding earthquake insurance) in an amount which is at least
equal
to the lesser of (i) the amount necessary to compensate for any damage
or loss
to the improvements which are a part of such property on a replacement
cost
basis or (ii) the outstanding principal balance of the Mortgage Loan. If
the
Mortgaged Property is in an area identified on a flood hazard map or flood
insurance rate map issued by the Federal Emergency Management Agency as
having
special flood hazards (and such flood insurance has been made available),
a
flood insurance policy meeting the requirements of the current guidelines
of the
Federal Insurance Administration is in effect. All such insurance policies
contain a standard mortgagee clause naming the originator of the Mortgage
Loan,
its successors and assigns as mortgagee and the Seller has not engaged
in any
act or omission which would impair the coverage of any such insurance policies.
Except as may be limited by applicable law, the Mortgage obligates the
Mortgagor
thereunder to maintain all such insurance at the Mortgagor’s cost and expense,
and on the Mortgagor’s failure to do so, authorizes the holder of the Mortgage
to maintain such insurance at Mortgagor’s cost and expense and to seek
reimbursement therefor from the Mortgagor;
(viii) Each
Mortgage Loan and the related Prepayment Charge, if any, complied in all
material respects with any and all requirements of any federal, state or
local
law including, without limitation, usury, truth in lending, anti-predatory
lending, real estate settlement procedures, consumer credit protection,
equal
credit opportunity, fair housing or disclosure laws applicable to the
origination and servicing of the Mortgage Loans and the consummation of
the
transactions contemplated hereby will not involve the violation of any
such
laws;
(ix) The
Mortgage has not been satisfied, cancelled, subordinated (other than the
subordination to the related first lien mortgage loan) or rescinded, in
whole or
in part, and the Mortgaged Property has not been released from the lien
of the
Mortgage, in whole or in part, nor has any instrument been executed that
would
effect any such satisfaction, cancellation, subordination, rescission or
release;
(x) The
Mortgage was recorded or was submitted for recording in accordance with
all
applicable laws and is a valid, existing and enforceable second lien on
the
Mortgaged Property including all improvements on the Mortgaged
Property;
(xi) The
Mortgage Note and the related Mortgage are genuine and each is the legal,
valid
and binding obligation of the maker thereof, insured under the related
title
policy, and enforceable in accordance with its terms, except to the extent
that
the enforceability thereof may be limited by a bankruptcy, insolvency or
reorganization;
(xii) The
Seller is the sole legal, beneficial and equitable owner of the Mortgage
Note
and the Mortgage and has the full right to convey, transfer and sell the
Mortgage Loan to the Purchaser free and clear of any encumbrance, equity,
lien
(other than the subordination to the related first lien mortgage loan),
pledge,
charge, claim or security interest and immediately upon the sale, assignment
and
endorsement of the Mortgage Loans from the Seller to the Purchaser, the
Purchaser shall have good and indefeasible title to and be the sole legal
owner
of the Mortgage Loans subject only to any encumbrance, equity, lien, pledge,
charge, claim or security interest arising out of the Purchaser’s
actions;
(xiii) Each
Mortgage Loan is covered by a valid and binding American Land Title Association
lender’s title insurance policy issued by a title insurer qualified to do
business in the jurisdiction where the Mortgaged Property is located. No
claims
have been filed under such lender’s title insurance policy, and the Seller has
not done, by act or omission, anything that would impair the coverage of
the
lender’s title insurance policy;
(xiv) There
is
no material default, breach, violation event or event of acceleration existing
under the Mortgage or the Mortgage Note and no event which, with the passage
of
time or with notice and the expiration of any grace or cure period, would
constitute a material default, breach, violation or event of acceleration,
and
the Seller has not, nor has its predecessors, waived any material default,
breach, violation or event of acceleration;
(xv) There
are
no mechanics’ or similar liens or claims which have been filed for work, labor
or material provided to the related Mortgaged Property prior to the origination
of the Mortgage Loan which are or may be liens prior to, or equal or coordinate
with, the lien of the related Mortgage, except as may be disclosed in the
related title policy;
(xvi) Except
with respect to approximately 6.04% of the Mortgage Loans by aggregate
principal
balance as of the Cut-off Date, which are balloon loans, each Mortgage
Note is
payable on the first day of each month in equal monthly installments of
principal and interest, with interest calculated on a 30/360 basis and
payable
in arrears, sufficient to amortize the Mortgage Loan fully by the stated
maturity date over an original term from commencement of amortization to
not
more than 30 years and no Mortgage Loan permits negative
amortization;
(xvii) The
servicing practices used in connection with the servicing of the Mortgage
Loans
have been in all respects reasonable and customary in the mortgage servicing
industry of like mortgage loan servicers, servicing similar subprime mortgage
loans originated in the same jurisdiction as the Mortgaged
Property;
(xviii) At
the
time of origination of the Mortgage Loan there was no proceeding pending
for the
total or partial condemnation of the Mortgaged Property and, as of the
date such
Mortgage Loan was purchased by the Purchaser, to the best of the Purchaser’s
knowledge there is no proceeding pending for the total or partial condemnation
of the Mortgaged Property;
(xix) The
Mortgage and related Mortgage Note contain customary and enforceable provisions
such as to render the rights and remedies of the holder thereof adequate
for the
realization against the Mortgaged Property of the benefits of the security
provided thereby, including, (a) in the case of a Mortgage designated as
a deed
of trust, by trustee’s sale, and (b) otherwise by judicial
foreclosure;
(xx) The
Mortgage Note is not and has not been secured by any collateral except
the lien
of the related Mortgage referred to in subsection (x) above;
(xxi) In
the
event the Mortgage constitutes a deed of trust, a trustee, duly qualified
under
applicable law to serve as such, has been properly designated and currently
so
serves and is named in the Mortgage, and no fees or expenses are or will
become
payable by the Seller to the trustee under the deed of trust, except in
connection with a trustee’s sale after default by the Mortgagor;
(xxii) The
Mortgage Loan is not subject to any valid right of rescission, set-off,
counterclaim or defense, including without limitation the defense of usury,
nor
will the operation of any of the terms of the Mortgage Note or the Mortgage,
or
the exercise of any right thereunder, render either the Mortgage Note or
the
Mortgage unenforceable, in whole or in part, or subject to any such right
of
rescission, set-off, counterclaim or defense, including without limitation
the
defense of usury, and no such right of rescission, set-off, counterclaim
or
defense has been asserted with respect thereto;
(xxiii) The
Mortgage Loans were underwritten in accordance with the related originator’s
underwriting guidelines in effect at the time the Mortgage Loans were originated
(the “Applicable Underwriting Guidelines”), except with respect to certain of
those Mortgage Loans which had compensating factors permitting a deviation
from
the Applicable Underwriting Guidelines;
(xxiv) The
Mortgaged Property is free of material damage and waste, excepting therefrom
any
Mortgage Loan subject to an escrow withhold as shown on the Closing
Schedule;
(xxv) All
of
the improvements which were included in determining the appraised value
of the
Mortgaged Property lie wholly within the Mortgaged Property’s boundary lines and
no improvements on adjoining properties encroach upon the Mortgaged Property,
excepting therefrom: (i) any encroachment insured against in the lender’s title
insurance policy identified in subsection (xiii), (ii) any encroachment
generally acceptable to subprime mortgage loan originators doing business
in the
same jurisdiction as the Mortgaged Property, and (iii) any encroachment
which
does not materially interfere with the benefits of the security intended
to be
provided by such Mortgage;
(xxvi) All
parties to the Mortgage Note had the legal capacity to execute the Mortgage
Note
and the Mortgage, and the Mortgage Note and the Mortgage have been duly
executed
by such parties;
(xxvii) To
the
best of the Seller’s knowledge, at the time of origination of the Mortgage Loan,
no appraised improvement located on or being part of the Mortgaged Property
was
in violation of any applicable zoning law or regulation and all inspections,
licenses and certificates required in connection with the origination of
any
Mortgage Loan with respect to the occupancy of the Mortgaged Property,
have been
made or obtained from the appropriate authorities;
(xxviii) No
Mortgagor has notified the Seller of any relief requested or allowed under
the
Servicemembers Civil Relief Act;
(xxix) All
parties which have held an interest in the Mortgage Loan are (or during
the
period in which they held and disposed of such interest, were) (1) in compliance
with any and all applicable licensing requirements of the state wherein
the
Mortgaged Property is located, (2) organized under the laws of such state,
(3)
qualified to do business in such state, (4) a federal savings and loan
association or national bank, (5) not doing business in such state, or
(6)
exempt from the applicable licensing requirements of such state;
(xxx) The
Mortgage File contains an appraisal of the related Mortgaged Property which
was
made prior to the approval of the Mortgage Loan by a qualified appraiser,
duly
appointed by the related originator and was made in accordance with the
Financial Institutions Reform, Recovery, and Enforcement Act of 1989 and
the
Uniform Standards of Professional Appraisal Practice;
(xxxi) Except
as
may otherwise be limited by applicable law, the Mortgage contains a provision
for the acceleration of the payment of the unpaid principal balance of
the
Mortgage Loan in the event that the Mortgaged Property is sold or transferred
without the prior written consent of the Mortgagee thereunder;
(xxxii) The
Mortgage Loan does not contain any provision which would constitute a “buydown”
provision and pursuant to which Monthly Payments are paid or partially
paid with
funds deposited in a separate account established by the related originator,
the
Mortgagor or anyone on behalf of the Mortgagor, or paid by any source other
than
the Mortgagor. The Mortgage Loan is not a “graduated payment mortgage loan” and
the Mortgage loan does not have a shared appreciation or other contingent
interest feature;
(xxxiii) To
the
best of the Seller’s knowledge there is no action or proceeding directly
involving the Mortgaged Property presently pending in which compliance
with any
environmental law, rule or regulation is at issue and the Seller has received
no
notice of any condition at the Mortgaged Property which is reasonably likely
to
give rise to an action or proceeding in which compliance with any environmental
law, rule or regulation is at issue;
(xxxiv) Each
Mortgage Loan is an obligation which is principally secured by an interest
in
real property within the meaning of Treasury Regulation section
1.860G-2(a);
(xxxv) Each
Mortgage Loan (a) is directly secured by a second lien on, and consists
of a
single parcel of, real property with a detached one-to-four family residence
erected thereon, a townhouse or an individual condominium unit in a condominium
project, a co-operative or an individual unit in a planned unit development
(“PUD”). Any unit in a PUD or condominium project conforms to the requirements
of the Applicable Underwriting Guidelines regarding such dwellings. No
residence
or dwelling is a mobile home or a manufactured dwelling unless it is a
manufactured dwelling, which is permanently affixed to a foundation and
treated
as “real estate” under applicable law. No Mortgaged Property is used for
commercial purposes. Mortgaged Properties which contain a home office shall
not
be considered as being used for commercial purposes as long as the Mortgaged
Property has not been altered for commercial purposes and is not storing
any
chemicals or raw materials other than those commonly used for homeowner
repair,
maintenance and/or household purposes;
(xxxvi) [Reserved];
(xxxvii) [Reserved];
(xxxviii) [Reserved];
(xxxix) [Reserved];
(xl) No
Mortgage Loan is subject to the Home Ownership and Equity Protection Act
of 1994
or any comparable law and no Mortgage Loan is classified and/or defined
as “high
cost”, “covered” (excluding home loans defined as “covered home loans” in the
New Jersey Home Ownership Security Act of 2002 that were originated between
November 26, 2003 and July 7, 2004) “high risk home” or “predatory” loan under
any other federal, state or local law (or a similarly classified loan using
different terminology under a law imposing heightened regulatory scrutiny
or
additional legal liability for residential mortgage loans having high interest
rates, points and/or fees);
(xli) There
is
no Mortgage Loan that was originated or modified on or after October 1,
2002 and
before March 7, 2003, which is secured by property located in the State
of
Georgia. There is no such Mortgage Loan underlying the Certificate that
was
originated on or after March 7, 2003, which is a “high cost home loan” as
defined under the Georgia Fair Lending Act;
(xlii) With
respect to any Mortgage Loan, either (i) no consent for the Mortgage Loan
is
required by the holder of any related senior lien or (ii) such consent
has been
obtained and is contained in the Mortgage File;
(xliii) As
of the
date hereof, the Seller has not received a notice of default of a senior
lien on
the related Mortgaged Property which has not been cured;
(xliv) There
is
no Mortgage Loan that (a) is secured by property located in the State of
Kentucky; (b) was originated on or after June 24, 2003, and (c) which is
a “high
cost home loan” as defined under Kentucky State Statute KRS 360.100, effective
as of June 24, 2003;
(xlv) There
is
no Mortgage Loan that (a) is secured by property located in the State of
Arkansas, (b) has a note date on or after July 16, 2003, and (c) which
is a
“high cost home loan” as defined under the Arkansas Home Loan Protection Act,
effective as of July 16, 2003;
(xlvi) [Reserved];
(xlvii) [Reserved];
(xlviii) No
Mortgage Loan is a “High-Cost Home Loan” as defined in the New Jersey Home
Ownership Act effective November 27, 2003 (N.J.S.A. 46:10B-22 et seq.);
(xlix) No
Mortgage Loan is a “High-Cost Home Loan” as defined in the New Mexico Home Loan
Protection Act effective January 1, 2004 (N.M. Stat. ▇▇▇. §§ 58-21A-1 et
seq.);
(l) No
Mortgage Loan is a “High-Risk Home Loan” as defined in the Illinois High-Risk
Home Loan Act effective January 1, 2004 (815 Ill. Comp. Stat. 137/1 et
seq.);
(li) No
Mortgage Loan originated in the City of Los Angeles is subject to the City
of
Los Angeles California Ordinance 175008 as a home loan;
(lii) No
Mortgage Loan is a “High Cost Home Loan” as defined under the Maine House ▇▇▇▇
383 ▇.▇. 494, effective as of September 13, 2003;
(liii) No
Mortgage Loan is a “High Cost” loan as defined under the New York Banking Law
Section 6L, effective as of April 1, 2003;
(liv) No
Mortgage Loan is a “home loan” in the state of Nevada;
(lv) No
Mortgage Loan is a “Section 10 mortgage loan” as defined in Oklahoma House ▇▇▇▇
1574;
(lvi) [Reserved];
and
(lvii) No
Mortgage Loan is a High Cost Loan or Covered Loan, as applicable (as such
terms
are defined in the then current Standard & Poor’s LEVELS®
Glossary
which is now Version 5.6(c) Revised, Appendix E (attached hereto as Exhibit
2))
and no Mortgage Loan originated on or after October 1, 2002 through March
6,
2003 is governed by the Georgia Fair Lending Act.
(lviii) No
selection procedures were used by the Seller that identified the Mortgage
Loans
as being less desirable or valuable than other comparable mortgage loans
in the
Seller’s portfolio;
(lix) The
information set forth in the Closing Schedule is true and correct in all
material respects as of the Cut-off Date; and
(lxviii) No
Mortgage Loan is secured in whole or in part by the interest of the Mortgagor
as
a lessee under a ground lease of the related Mortgaged Property.
(lx) No
Mortgage Loan is a “High-Cost Home Loan” as defined in the Indiana Home Loan
Practices Act, effective January 1, 2005 (Ind. Code ▇▇▇. Sections 24-9-1
through
24-9-9);
(lxi) No
Mortgage Loan is a “High-Cost Home Mortgage Loan” as defined in the
Massachusetts Predatory Home Loan Practices Act, effective November 7,
2004
(Mass. ▇▇▇. Laws Ch. 183C);
SECTION
7. Repurchase
Obligation for Defective Documentation and for Breach of Representation
and
Warranty.
(a) The
representations and warranties contained in Section 6 shall not be impaired
by
any review and examination of loan files or other documents evidencing
or
relating to the Mortgage Loans or any failure on the part of the Seller
or the
Purchaser to review or examine such documents and shall inure to the benefit
of
any assignee, transferee or designee of the Purchaser, including the Trustee
for
the benefit of the Certificateholders. With respect to the representations
and
warranties contained herein as to which the Seller has no knowledge, if
it is
discovered that the substance of any such representation and warranty was
inaccurate as of the date such representation and warranty was made or
deemed to
be made, and such inaccuracy materially and adversely affects the value
of the
related Mortgage Loan or the interest therein of the Purchaser or the
Purchaser’s assignee, transferee or designee, then notwithstanding the lack of
knowledge by the Seller with respect to the substance of such representation
and
warranty being inaccurate at the time the representation and warranty was
made,
the Seller shall take such action described in the following paragraph
in
respect of such Mortgage Loan.
Upon
discovery by the Seller, the Purchaser or any assignee, transferee or designee
of the Purchaser of any materially defective document in, or that any material
document was not transferred by the Seller, as listed on a Custodian’s
preliminary exception report, as described in the related Custodial Agreement,
as part of any Mortgage File, or of a breach of any of the representations
and
warranties contained in Section 6 that materially and adversely affects
the
value of any Mortgage Loan or the interest therein of the Purchaser or
the
Purchaser’s assignee, transferee or designee, the party discovering such breach
shall give prompt written notice to the Seller. Within sixty (60) days
of its
discovery or its receipt of notice of any such missing documentation that
was
not transferred by the Seller as described above, or of materially defective
documentation, or any such breach of a representation and warranty, the
Seller
promptly shall deliver such missing document or cure such defect or breach
in
all material respects or, in the event the Seller cannot deliver such missing
document or cannot cure such defect or breach, the Seller shall, within
ninety
(90) days of its discovery or receipt of notice of any such missing or
materially defective documentation or of any such breach of a representation
and
warranty, either (i) repurchase the affected Mortgage Loan at the Purchase
Price
(as such term is defined in the Pooling and Servicing Agreement) or (ii)
pursuant to the provisions of the Pooling and Servicing Agreement, cause
the
removal of such Mortgage Loan from the Trust Fund and substitute one or
more
Qualified Substitute Mortgage Loans. The Seller shall amend the Closing
Schedule
to reflect the withdrawal of such Mortgage Loan from the terms of this
Agreement
and the Pooling and Servicing Agreement. The Seller shall deliver to the
Purchaser such amended Closing Schedule and shall deliver such other documents
as are required by this Agreement or the Pooling and Servicing Agreement
within
five (5) days of any such amendment. Any repurchase pursuant to this Section
7(a) shall be accomplished by transfer to an account designated by the
Purchaser
of the amount of the Purchase Price in accordance with Section 2.03 of
the
Pooling and Servicing Agreement. Any repurchase required by this Section
shall
be made in a manner consistent with Section 2.03 of the Pooling and Servicing
Agreement.
(b) If
the
representation made by the Seller in Section 5(xii) is breached, the Seller
shall not have the right or obligation to cure, substitute or repurchase
the
affected Mortgage Loan but shall remit to the applicable Servicer for deposit
in
the Collection Account, prior to the next succeeding Servicer Remittance
Date,
the amount of the Prepayment Charge indicated on the applicable part of
the
Closing Schedule to be due from the Mortgagor in the circumstances less
any
amount collected and remitted to the applicable Servicer for deposit into
the
Collection Account.
(c) It
is
understood and agreed that the obligations of the Seller set forth in this
Section 7 to cure or repurchase a defective Mortgage Loan (and to make
payments
pursuant to Section 7(b)) constitute the sole remedies of the Purchaser
against
the Seller respecting a missing document or a breach of the representations
and
warranties contained in Section 5(xii) or Section 6.
SECTION
8. Closing;
Payment for the Mortgage Loans. The
closing of the purchase and sale of the Mortgage Loans shall be held at
the New
York City office of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ llp
at 10:00
a.m. New York City time on the Closing Date.
The
closing shall be subject to each of the following conditions:
(a) All
of
the representations and warranties of the Seller under this Agreement shall
be
true and correct in all material respects as of the date as of which they
are
made and no event shall have occurred which, with notice or the passage
of time,
would constitute a default under this Agreement;
(b) The
Purchaser shall have received, or the attorneys of the Purchaser shall
have
received in escrow (to be released from escrow at the time of closing),
all
closing documents as specified in Section 9 of this Agreement, in such
forms as
are agreed upon and acceptable to the Purchaser, duly executed by all
signatories other than the Purchaser as required pursuant to the respective
terms thereof;
(c) The
Seller shall have delivered or caused to be delivered and released to the
Purchaser or to its designee, all documents (including without limitation,
the
Mortgage Loans) required to be so delivered by the Purchaser pursuant to
Section
2.01 of the Pooling and Servicing Agreement; and
(d) All
other
terms and conditions of this Agreement and the Pooling and Servicing Agreement
shall have been complied with.
Subject
to the foregoing conditions, the Purchaser shall deliver or cause to be
delivered to the Seller on the Closing Date, against delivery and release
by the
Seller to the Trustee of all documents required pursuant to the Pooling
and
Servicing Agreement, the consideration for the Mortgage Loans as specified
in
Section 3 of this Agreement.
SECTION
9. Closing
Documents.
Without
limiting the generality of Section 8 hereof, the closing shall be subject
to
delivery of each of the following documents:
(a) An
Officers’ Certificate of the Seller, dated the Closing Date, upon which the
Purchaser and DBSI may rely with respect to certain facts regarding the
sale of
the Mortgage Loans by the Seller to the Purchaser;
(b) An
Opinion of Counsel of the Seller, dated the Closing Date and addressed
to the
Purchaser and DBSI;
(c) Such
opinions of counsel as the Rating Agencies or the Trustee may request in
connection with the sale of the Mortgage Loans by the Seller to the Purchaser
or
the Seller’s execution and delivery of, or performance under, this Agreement;
and
(d) Such
further information, certificates, opinions and documents as the Purchaser
or
DBSI may reasonably request.
SECTION
10. Costs.
The
Seller shall pay (or shall reimburse the Purchaser or any other Person
to the
extent that the Purchaser or such other Person shall pay) all costs and
expenses
incurred in connection with the transfer and delivery of the Mortgage Loans,
including without limitation, fees for title policy endorsements and
continuations, the fees and expenses of the Seller’s accountants and attorneys,
the costs and expenses incurred in connection with producing each Servicer’s
loan loss, foreclosure and delinquency experience, and the costs and expenses
incurred in connection with obtaining the documents referred to in Sections
9(a), 9(b) and 9(c), the costs and expenses of printing (or otherwise
reproducing) and delivering this Agreement, the Pooling and Servicing Agreement,
the Certificates, the prospectus and prospectus supplement, and any private
placement memorandum relating to the Certificates and other related documents,
the initial fees, costs and expenses of the Trustee, the fees and expenses
of
the Purchaser’s counsel in connection with the preparation of all documents
relating to the securitization of the Mortgage Loans, the filing fee charged
by
the Securities and Exchange Commission for registration of the Certificates
and
the fees charged by any rating agency to rate the Certificates. All
other costs and expenses in connection with the transactions contemplated
hereunder shall be borne by the party incurring such expense.
SECTION
11. Servicing. The
Mortgage Loans will be master serviced by the Master Servicer under the
Pooling
and Servicing Agreement and serviced by the Servicers, on behalf of the
Trust,
and the Seller has represented to the Purchaser that such Mortgage Loans
are not
subject to any other servicing agreements with third parties other than
certain
interim servicing agreements. It is understood and agreed between the
Seller and the Purchaser that the Mortgage Loans are to be delivered free
and
clear of any servicing agreements (other than certain interim servicing
agreements). Neither the Purchaser nor any affiliate of the Purchaser
is servicing the Mortgage Loans under any such servicing agreement and,
accordingly, neither the Purchaser nor any affiliate of the Purchaser is
entitled to receive any fee for releasing the Mortgage Loans from any such
servicing agreement. The Seller shall arrange for the orderly
transfer, of such servicing to the Servicers. For so long as the
Master Servicer master services the Mortgage Loans and the Servicers service
the
Mortgage Loans, the Master Servicer shall be entitled to the Master Servicing
Fee and the Servicers shall be entitled to their Servicing Fee and such
other
payments as provided for under the terms of the Pooling and Servicing
Agreement.
SECTION
12. Mandatory
Delivery; Grant of Security Interest. The
sale and delivery on the Closing Date of the Mortgage Loans described on
the
Closing Schedule in accordance with the terms and conditions of this Agreement
is mandatory. It is specifically understood and agreed that each
Mortgage Loan is unique and identifiable on the date hereof and that an
award of
money damages would be insufficient to compensate the Purchaser for the
losses
and damages incurred by the Purchaser in the event of the Seller’s failure to
deliver the Mortgage Loans on or before the Closing Date. The Seller
hereby grants to the Purchaser a lien on and a continuing security interest
in
the Seller’s interest in each Mortgage Loan and each document and instrument
evidencing each such Mortgage Loan to secure the performance by the Seller
of
its obligation hereunder, and the Seller agrees that it holds such Mortgage
Loans in custody for the Purchaser, subject to the Purchaser’s (i) right, prior
to the Closing Date, to reject any Mortgage Loan to the extent permitted
by this
Agreement and (ii) obligation to deliver or cause to be delivered the
consideration for the Mortgage Loans pursuant to Section 8
hereof. Any Mortgage Loans rejected by the Purchaser shall
concurrently therewith be released from the security interest created
hereby. All rights and remedies of the Purchaser under this Agreement
are distinct from, and cumulative with, any other rights or remedies under
this
Agreement or afforded by law or equity and all such rights and remedies
may be
exercised concurrently, independently or successively.
Notwithstanding
the foregoing, if on the Closing Date, each of the conditions set forth
in
Section 8 hereof shall have been satisfied and the Purchaser shall not
have paid
or caused to be paid the Purchase Price, or any such condition shall not
have
been waived or satisfied and the Purchaser determines not to pay or cause
to be
paid the Purchase Price, the Purchaser shall immediately effect the redelivery
of the Mortgage Loans, if delivery to the Purchaser has occurred, and the
security interest created by this Section 12 shall be deemed to have been
released.
SECTION
13. Notices. All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given if personally delivered to or mailed by
registered mail, postage prepaid, or transmitted by fax and, receipt of
which is
confirmed by telephone, if to the Purchaser, addressed to the Purchaser
at ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, fax: (▇▇▇)
▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇, or such other address as may hereafter
be
furnished to the Seller in writing by the Purchaser; and if to the
Seller, addressed to the Seller at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
fax: (▇▇▇) ▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, or to such other
address as the Seller may designate in writing to the Purchaser.
SECTION
14. Severability
of Provisions. Any
part, provision, representation or warranty of this Agreement that is prohibited
or that is held to be void or unenforceable shall be ineffective to the
extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation or warranty of
this Agreement that is prohibited or unenforceable or is held to be void
or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating
the
remaining provisions hereof, and any such prohibition or unenforceability
in any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent
permitted by applicable law, the parties hereto waive any provision of
law which
prohibits or renders void or unenforceable any provision hereof.
SECTION
15. Agreement
of Parties. The
Seller and the Purchaser each agree to execute and deliver such instruments
and
take such actions as either of the others may, from time to time, reasonably
request in order to effectuate the purpose and to carry out the terms of
this
Agreement and the Pooling and Servicing Agreement.
SECTION
16. Survival. The
Seller agrees that the representations, warranties and agreements made
by it
herein and in any certificate or other instrument delivered pursuant hereto
shall be deemed to be relied upon by the Purchaser, notwithstanding any
investigation heretofore or hereafter made by the Purchaser or on its behalf,
and that the representations, warranties and agreements made by the Seller
herein or in any such certificate or other instrument shall survive the
delivery
of and payment for the Mortgage Loans and shall continue in full force
and
effect, notwithstanding any restrictive or qualified endorsement on the
Mortgage
Notes and notwithstanding subsequent termination of this Agreement, the
Pooling
and Servicing Agreement or the Trust Fund.
SECTION
17. GOVERNING
LAW. THIS
AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF THE
PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS
(EXCLUDING THE CHOICE OF LAW PROVISIONS) AND DECISIONS OF THE STATE OF
NEW
YORK. THE
PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW
YORK
GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
SECTION
18. Miscellaneous.
This
Agreement may be executed in two or more counterparts, each of which when
so
executed and delivered shall be an original, but all of which together
shall
constitute one and the same instrument. This Agreement shall inure to
the benefit of and be binding upon the parties hereto and their respective
successors and assigns. This Agreement supersedes all prior
agreements and understandings relating to the subject matter
hereof. Neither this Agreement nor any term hereof may be changed,
waived, discharged or terminated orally, but only by an instrument in writing
signed by the party against whom enforcement of the change, waiver, discharge
or
termination is sought. The headings in this Agreement are for
purposes of reference only and shall not limit or otherwise affect the
meaning
hereof.
It
is the
express intent of the parties hereto that the conveyance of the Mortgage
Loans
by the Seller to the Purchaser as provided in Section 4 hereof be, and
be
construed as, a sale of the Mortgage Loans by the Seller to the Purchaser
and
not as a pledge of the Mortgage Loans by the Seller to the Purchaser to
secure a
debt or other obligation of the Seller. However, in the event that,
notwithstanding the aforementioned intent of the parties, the Mortgage
Loans are
held to be property of the Seller, then (a) it is the express intent of
the
parties that such conveyance be deemed a pledge of the Mortgage Loans by
the
Seller to the Purchaser to secure a debt or other obligation of the Seller
and
(b) (1) this Agreement shall also be deemed to be a security agreement
within
the meaning of Articles 8 and 9 of the New York Uniform Commercial Code;
(2) the
conveyance provided for in Section 4 hereof shall be deemed to be a grant
by the
Seller to the Purchaser of a security interest in all of the Seller’s right,
title and interest in and to the Mortgage Loans and all amounts payable
to the
holders of the Mortgage Loans in accordance with the terms thereof and
all
proceeds of the conversion, voluntary or involuntary, of the foregoing
into
cash, instruments, securities or other property, including without limitation
all amounts, other than investment earnings, from time to time held or
invested
in the Collection Account whether in the form of cash, instruments, securities
or other property; (3) the possession by the Purchaser or its agent of
Mortgage
Notes, the related Mortgages and such other items of property that constitute
instruments, money, negotiable documents or chattel paper shall be deemed
to be
“possession by the secured party” for purposes of perfecting the security
interest pursuant to Section 9-305 of the New York Uniform Commercial Code;
and
(4) notifications to persons holding such property and acknowledgments,
receipts
or confirmations from persons holding such property shall be deemed
notifications to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the Purchaser for
the
purpose of perfecting such security interest under applicable law. Any
assignment of the interest of the Purchaser pursuant to Section 4(d) hereof
shall also be deemed to be an assignment of any security interest created
hereby. The Seller and the Purchaser shall, to the extent consistent with
this
Agreement, take such actions as may be necessary to ensure that, if this
Agreement were deemed to create a security interest in the Mortgage Loans,
such
security interest would be deemed to be a perfected security interest of
first
priority under applicable law and will be maintained as such throughout
the term
of this Agreement and the Pooling and Servicing Agreement.
SECTION
19. Third
Party Beneficiary. The
parties hereto acknowledge and agree that DBSI and each of its respective
successors and assigns shall have all the rights of a third-party beneficiary
in
respect of Section 12 of this Agreement and shall be entitled to rely upon
and
directly enforce the provisions of Section 12 of this Agreement.
IN
WITNESS WHEREOF, the Purchaser and the Seller have caused their names to
be
signed by their respective officers thereunto duly authorized as of the
date
first above written.
DB
STRUCTURED PRODUCTS, INC.
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
ACE
SECURITIES CORP.
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
EXHIBIT 1
Loan
#:
_________
Borrower:
_______
LOST
NOTE
AFFIDAVIT
I,
as
_____________________ of ____________________, a _______________ am authorized
to make this Affidavit on behalf of __________________ (the “Seller”). In
connection with the administration of the Mortgage Loans held by
______________________, a _______________ [corporation] as Seller on behalf
of
____________________ (the “Purchaser”), _______________________ (the
“Deponent”), being duly sworn, deposes and says that:
1. The
Seller’s address is:
2. The
Seller previously delivered to the Purchaser a signed Initial Certification
with
respect to such Mortgage and/or Assignment of Mortgage;
3. Such
Mortgage Note and/or Assignment of Mortgage was assigned or sold to the
Purchaser by __________________, a pursuant to the terms and provisions
of a
Mortgage Loan Purchase Agreement dated as of _____________;
4. Such
Mortgage Note and/or Assignment of Mortgage is not outstanding pursuant
to a
request for release of Documents;
5. Aforesaid
Mortgage Note and/or Assignment of Mortgage (the “Original”) has been
lost;
6. Deponent
has made or caused to be made a diligent search for the Original and has
been
unable to find or recover same;
7. The
Seller was the Seller of the Original at the time of the loss; and
8. Deponent
agrees that, if said Original should ever come into Seller’s possession, custody
or power, Seller will immediately and without consideration surrender the
Original to the Purchaser.
9. Attached
hereto is a true and correct copy of (i) the Note, endorsed in blank by
the
Mortgagee and (ii) the Mortgage or Deed of Trust (strike one) which secures
the
Note, which Mortgage or Deed of Trust is recorded in the county where the
property is located.
10. Deponent
hereby agrees that the Seller (a) shall indemnify and hold harmless the
Purchaser, its successors and assigns, against any loss, liability or damage,
including reasonable attorney’s fees, resulting from the unavailability of any
Notes, including but not limited to any loss, liability or damage arising
from
(i) any false statement contained in this Affidavit, (ii) any claim of
any party
that purchased a mortgage loan evidenced by the Lost Note or any interest
in
such mortgage loan, (iii) any claim of any borrower with respect to the
existence of terms of a mortgage loan evidenced by the Lost Note on the
related
property to the fact that the mortgage loan is not evidenced by an original
note
and (iv) the issuance of a new instrument in lieu thereof (items (i) through
(iv) above hereinafter referred to as the “Losses”) and (b) if required by any
Rating Agency in connection with placing such Lost Note into a Pass-Through
Transfer, shall obtain a surety from an insurer acceptable to the applicable
Rating Agency to cover any Losses with respect to such Lost Note.
11. This
Affidavit is intended to be relied upon by the Purchaser, its successors
and
assigns. Seller represents and warrants that is has the authority to perform
its
obligations under this Affidavit of Lost Note.
Executed
this _ day of _______, 200_.
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
On
this
__ day of ______, 200_, before me appeared ______________________ to me
personally known, who being duly sworn did say that he is the
_______________________ of ____________________, a ______________________
and
that said Affidavit of Lost Note was signed and sealed on behalf of such
corporation and said acknowledged this instrument to be the free act and
deed of
said entity.
Signature:
[Seal]
EXHIBIT
2
EXHIBIT
G
FORM
10-D, FORM 8-K AND FORM 10-K
REPORTING
RESPONSIBILITY
As
to
each item described below, the entity indicated as the Responsible Party
shall
be primarily responsible for reporting the information to the party identified
as responsible for preparing the Securities Exchange Act Reports pursuant
to
Section 5.06(a)(ii).
Under
Item 1 of Form 10-D: a) items marked “monthly statement” are required to be
included in the periodic Distribution Date statement under Section 5.02,
provided by the Securities Administrator based on information received from
the
Master Servicer; and b) items marked “Form 10-D report” are required to be in
the Form 10-D report but not the monthly statement, provided by the party
indicated. Information under all other Items of Form 10-D is to be included
in
the Form 10-D report.
|
Form
|
Item
|
Description
|
Servicers
|
Master
Servicer
|
Securities
Administrator
|
Custodian
|
Trustee
|
Depositor
|
Sponsor
|
|||||
|
10-D
|
Must
be filed within 15 days of the distribution date for the asset-backed
securities.
|
|||||||||||||
|
1
|
Distribution
and Pool Performance Information
|
|||||||||||||
|
Item
1121(a) - Distribution and Pool Performance
Information
|
||||||||||||||
|
(1)
Any applicable record dates, accrual dates, determination dates
for
calculating distributions and actual distribution dates for the
distribution period.
|
X
(monthly
statement)
|
|||||||||||||
|
(2)
Cash flows received and the sources thereof for distributions,
fees and
expenses.
|
X
(monthly
statement)
|
|||||||||||||
|
(3)
Calculated amounts and distribution of the flow of funds for
the period
itemized by type and priority of payment, including:
|
X
(monthly
statement)
|
|||||||||||||
|
(i)
Fees or expenses accrued and paid, with an identification of
the general
purpose of such fees and the party receiving such fees or
expenses.
|
X
(monthly
statement)
|
|||||||||||||
|
(ii)
Payments accrued or paid with respect to enhancement or other
support
identified in Item 1114 of Regulation AB (such as insurance premiums
or
other enhancement maintenance fees), with an identification of
the general
purpose of such payments and the party receiving such
payments.
|
X
(monthly
statement)
|
|||||||||||||
|
(iii)
Principal, interest and other distributions accrued and paid
on the
asset-backed securities by type and by class or series and any
principal
or interest shortfalls or carryovers.
|
X
(monthly
statement)
|
|||||||||||||
|
(iv)
The amount of excess cash flow or excess spread and the disposition
of
excess cash flow.
|
X
(monthly
statement)
|
|||||||||||||
|
(4)
Beginning and ending principal balances of the asset-backed
securities.
|
X
(monthly
statement)
|
|||||||||||||
|
(5)
Interest rates applicable to the pool assets and the asset-backed
securities, as applicable. Consider providing interest rate information
for pool assets in appropriate distributional groups or incremental
ranges.
|
X
(monthly
statement)
|
|||||||||||||
|
(6)
Beginning and ending balances of transaction accounts, such as
reserve
accounts, and material account activity during the period.
|
X
(monthly
statement)
|
|||||||||||||
|
(7)
Any amounts drawn on any credit enhancement or other support
identified in
Item 1114 of Regulation AB, as applicable, and the amount of
coverage
remaining under any such enhancement, if known and
applicable.
|
X
(monthly
statement)
|
|||||||||||||
|
(8)
Number and amount of pool assets at the beginning and ending
of each
period, and updated pool composition information, such as weighted
average
coupon, weighted average life, weighted average remaining term,
pool
factors and prepayment amounts.
|
X
(monthly
statement)
|
Updated
pool composition information fields to be as specified by Depositor
from
time to time
|
||||||||||||
|
(9)
Delinquency and loss information for the period.
|
X
|
X
|
X
(monthly
statement)
|
|||||||||||
|
In
addition, describe any material changes to the information specified
in
Item 1100(b)(5) of Regulation AB regarding the pool assets.
(methodology)
|
X
|
X
|
||||||||||||
|
(10)
Information on the amount, terms and general purpose of any advances
made
or reimbursed during the period, including the general use of
funds
advanced and the general source of funds for
reimbursements.
|
X
|
X
|
X
(monthly
statement)
|
|||||||||||
|
(11)
Any material modifications, extensions or waivers to pool asset
terms,
fees, penalties or payments during the distribution period or
that have
cumulatively become material over time.
|
X
|
X
|
X
(monthly
statement)
|
|||||||||||
|
(12)
Material breaches of pool asset representations or warranties
or
transaction covenants.
|
X
|
X
|
X
|
|||||||||||
|
(13)
Information on ratio, coverage or other tests used for determining
any
early amortization, liquidation or other performance trigger
and whether
the trigger was met.
|
X
(monthly
statement)
|
|||||||||||||
|
(14)
Information regarding any new issuance of asset-backed securities
backed
by the same asset pool,
|
X
|
|||||||||||||
|
any
pool asset changes (other than in connection with a pool asset
converting
into cash in accordance with its terms), such as additions or
removals in
connection with a prefunding or revolving period and pool asset
substitutions and repurchases (and purchase rates, if applicable),
and
cash flows available for future purchases, such as the balances
of any
prefunding or revolving accounts, if applicable.
|
X
|
X
|
X
|
X
|
||||||||||
|
Disclose
any material changes in the solicitation, credit-granting, underwriting,
origination, acquisition or pool selection criteria or procedures,
as
applicable, used to originate, acquire or select the new pool
assets.
|
X
|
X
|
||||||||||||
|
Item
1121(b) - Pre-Funding or Revolving Period Information
Updated
pool information as required under Item 1121(b).
|
X
|
|||||||||||||
|
2
|
Legal
Proceedings
|
|||||||||||||
|
Item
1117 - Legal proceedings pending against the following entities,
or their
respective property, that is material to Certificateholders,
including
proceedings known to be contemplated by governmental
authorities:
|
||||||||||||||
|
Sponsor
(Seller)
|
X
|
|||||||||||||
|
Depositor
|
X
|
|||||||||||||
|
Trustee
|
X
|
|||||||||||||
|
Issuing
entity
|
X
|
|||||||||||||
|
Master
Servicer, affiliated Servicer, other Servicer servicing 20% or
more of
pool assets at time of report, other material servicers
|
X
|
X
|
||||||||||||
|
Securities
Administrator
|
X
|
|||||||||||||
|
Originator
of 20% or more of pool assets as of the Cut-off Date
|
X
|
|||||||||||||
|
Custodian
|
X
|
|||||||||||||
|
3
|
Sales
of Securities and Use of Proceeds
|
|||||||||||||
|
Information
from Item 2(a) of Part II of Form 10-Q:
With
respect to any sale of securities by the sponsor, depositor or
issuing
entity, that are backed by the same asset pool or are otherwise
issued by
the issuing entity, whether or not registered, provide the sales
and use
of proceeds information in Item 701 of Regulation S-K. Pricing
information
can be omitted if securities were not registered.
|
X
|
|||||||||||||
|
4
|
Defaults
Upon Senior Securities
|
|||||||||||||
|
Information
from Item 3 of Part II of Form 10-Q:
Report
the occurrence of any Event of Default (after expiration of any
grace
period and provision of any required notice)
|
X
|
X
|
||||||||||||
|
5
|
Submission
of Matters to a Vote of Security Holders
|
|||||||||||||
|
Information
from Item 4 of Part II of Form 10-Q
|
X
|
X
|
||||||||||||
|
6
|
Significant
Obligors of Pool Assets
|
|||||||||||||
|
Item
1112(b) - Significant
Obligor Financial Information*
|
X
|
X
|
||||||||||||
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Item.
|
||||||||||||||
|
7
|
Significant
Enhancement Provider Information
|
|||||||||||||
|
Item
1114(b)(2) - Credit Enhancement Provider Financial
Information*
|
||||||||||||||
|
Determining
applicable disclosure threshold
|
X
|
|||||||||||||
|
Requesting
required financial information or effecting incorporation by
reference
|
X
|
|||||||||||||
|
Item
1115(b) - Derivative Counterparty Financial
Information*
|
||||||||||||||
|
Determining
current maximum probable exposure
|
X
|
|||||||||||||
|
Determining
current significance percentage
|
X
|
|||||||||||||
|
Requesting
required financial information or effecting incorporation by
reference
|
X
|
|||||||||||||
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
||||||||||||||
|
8
|
Other
Information
|
|||||||||||||
|
Disclose
any information required to be reported on Form 8-K during the
period
covered by the Form 10-D but not reported
|
The
Responsible Party for the applicable Form 8-K item as indicated
below.
|
|||||||||||||
|
9
|
Exhibits
|
|||||||||||||
|
Distribution
report
|
X
|
|||||||||||||
|
Exhibits
required by Item 601 of Regulation S-K, such as material
agreements
|
X
|
|||||||||||||
|
8-K
|
Must
be filed within four business days of an event reportable on
Form
8-K.
|
|||||||||||||
|
1.01
|
Entry
into a Material Definitive Agreement
|
|||||||||||||
|
Disclosure
is required regarding entry into or amendment of any definitive
agreement
that is material to the securitization, even if depositor is
not a party.
Examples:
servicing agreement, custodial agreement.
Note:
disclosure not required as to definitive agreements that are
fully
disclosed in the prospectus
|
X
|
X
|
X
(if Master Servicer is not a party)
|
X
(if Master Servicer is not a party)
|
X
(if Master Servicer is not a party)
|
X
(if Master Servicer is not a party)
|
||||||||
|
1.02
|
Termination
of a Material Definitive Agreement
|
X
|
X
|
X
(if Master Servicer is not a party)
|
X
(if Master Servicer is not a party)
|
X
(if Master Servicer is not a party)
|
X
(if Master Servicer is not a party)
|
|||||||
|
Disclosure
is required regarding termination of any definitive agreement
that is
material to the securitization (other than expiration in accordance
with
its terms), even if depositor is not a party.
Examples:
servicing agreement, custodial agreement.
|
||||||||||||||
|
1.03
|
Bankruptcy
or Receivership
|
|||||||||||||
|
Disclosure
is required regarding the bankruptcy or receivership, if known
to the
Master Servicer, with respect to any of the following:
Sponsor
(Seller), Depositor, Master Servicer, affiliated Servicer, other
Servicer
servicing 20% or more of pool assets at time of report, other
material
servicers, Certificate Administrator, Trustee, significant obligor,
credit
enhancer (10% or more), derivatives counterparty,
Custodian
|
X
|
X
|
X
|
X
|
X
|
X
|
X
|
|||||||
|
2.04
|
Triggering
Events that Accelerate or Increase a Direct Financial Obligation
or an
Obligation under an Off-Balance Sheet Arrangement
|
|||||||||||||
|
Includes
an early amortization, performance trigger or other event, including
event
of default, that would materially alter the payment priority/distribution
of cash flows/amortization schedule.
Disclosure
will be made of events other than waterfall triggers which are
disclosed
in the monthly statement
|
X
|
X
|
||||||||||||
|
3.03
|
Material
Modification to Rights of Security Holders
|
|||||||||||||
|
Disclosure
is required of any material modification to documents defining
the rights
of Certificateholders, including the Pooling and Servicing
Agreement
|
X
|
X
|
X
|
X
|
||||||||||
|
5.03
|
Amendments
to Articles of Incorporation or Bylaws; Change in Fiscal
Year
|
|||||||||||||
|
Disclosure
is required of any amendment “to the governing documents of the issuing
entity”
|
X
|
X
|
||||||||||||
|
5.06
|
Change
in Shell Company Status
|
|||||||||||||
|
[Not
applicable to ABS issuers]
|
X
|
|||||||||||||
|
6.01
|
ABS
Informational and Computational Material
|
|||||||||||||
|
[Not
included in reports to be filed under Section 3.18]
|
X
|
|||||||||||||
|
6.02
|
Change
of Servicer or Trustee
|
|||||||||||||
|
Requires
disclosure of any removal, replacement, substitution or addition
of any
master servicer, affiliated servicer, other servicer servicing
10% or more
of pool assets at time of report, other material servicers, certificate
administrator or trustee.
|
X
|
X
|
X
|
X
|
X
|
|||||||||
|
Reg
AB disclosure about any new servicer (from entity appointing
new servicer)
or trustee (from Depositor) is also required.
|
X
|
X
|
||||||||||||
|
6.03
|
Change
in Credit Enhancement or Other External Support
|
|||||||||||||
|
Covers
termination of any enhancement in manner other than by its terms,
the
addition of an enhancement, or a material change in the enhancement
provided. Applies to external credit enhancements as well as
derivatives.
|
X
|
X
|
X
|
|||||||||||
|
Reg
AB disclosure about any new enhancement provider is also
required
|
X
|
|||||||||||||
|
6.04
|
Failure
to Make a Required Distribution
|
X
|
X
|
|||||||||||
|
6.05
|
Securities
Act Updating Disclosure
|
|||||||||||||
|
If
any material pool characteristic differs by 5% or more at the
time of
issuance of the securities from the description in the final
prospectus,
provide updated Reg AB disclosure about the actual asset
pool.
|
X
|
|
||||||||||||
|
If
there are any new servicers or originators required to be disclosed
under
Regulation AB as a result of the foregoing, provide the information
called
for in Items 1108 and 1110 respectively.
|
X
|
|||||||||||||
|
7.01
|
Regulation
FD Disclosure
|
X
|
X
|
X
|
X
|
X
|
X
|
|||||||
|
8.01
|
Other
Events
|
|||||||||||||
|
Any
event, with respect to which information is not otherwise called
for in
Form 8-K, that the registrant deems of importance to security
holders.
|
X
|
|||||||||||||
|
9.01
|
Financial
Statements and Exhibits
|
The
Responsible Party applicable to reportable event.
|
||||||||||||
|
10-K
|
Must
be filed within 90 days of the fiscal year end for the
registrant.
|
|||||||||||||
|
9B
|
Other
Information
|
|||||||||||||
|
Disclose
any information required to be reported on Form 8-K during the
fourth
quarter covered by the Form 10-K but not reported
|
The
Responsible Party for the applicable Form 8-K as indicated
above.
|
|||||||||||||
|
15
|
Exhibits
and Financial Statement Schedules
|
|||||||||||||
|
Item
1112(b) - Significant
Obligor Financial Information
|
X
|
X
|
||||||||||||
|
Item
1114(b)(2) - Credit Enhancement Provider Financial
Information
|
||||||||||||||
|
Determining
applicable disclosure threshold
|
X
|
|||||||||||||
|
Requesting
required financial information or effecting incorporation by
reference
|
X
|
|||||||||||||
|
Item
1115(b) - Derivative Counterparty Financial
Information
|
||||||||||||||
|
Determining
current maximum probable exposure
|
X
|
|||||||||||||
|
Determining
current significance percentage
|
X
|
|||||||||||||
|
Requesting
required financial information or effecting incorporation by
reference
|
X
|
|||||||||||||
|
Item
1117 - Legal proceedings pending against the following entities,
or their
respective property, that is material to Certificateholders,
including
proceedings known to be contemplated by governmental
authorities:
|
||||||||||||||
|
Sponsor
(Seller)
|
X
|
|||||||||||||
|
Depositor
|
X
|
|||||||||||||
|
Trustee
|
X
|
|||||||||||||
|
Issuing
entity
|
X
|
|||||||||||||
|
Master
Servicer, affiliated Servicer, other Servicer servicing 20% or
more of
pool assets at time of report, other material servicers
|
X
|
X
|
||||||||||||
|
Securities
Administrator
|
X
|
|||||||||||||
|
Originator
of 20% or more of pool assets as of the Cut-off Date
|
X
|
X
|
||||||||||||
|
Custodian
|
X
|
|||||||||||||
|
Item
1119 - Affiliations and relationships between the following entities,
or
their respective affiliates, that are material to
Certificateholders:
|
||||||||||||||
|
Sponsor
(Seller)
|
X
|
|||||||||||||
|
Depositor
|
X
|
|||||||||||||
|
Trustee
|
X
|
|||||||||||||
|
Master
Servicer, affiliated Servicer, other Servicer servicing 20% or
more of
pool assets at time of report, other material servicers
|
X
|
X
|
||||||||||||
|
Securities
Administrator
|
X
|
|||||||||||||
|
Originator
|
X
|
X
|
||||||||||||
|
Custodian
|
X
(with respect to affiliations only)
|
|||||||||||||
|
Credit
Enhancer/Support Provider
|
X
|
X
|
||||||||||||
|
Significant
Obligor
|
X
|
X
|
||||||||||||
|
Item
1122 - Assessment of Compliance with Servicing
Criteria
|
X
|
X
|
X
|
X
|
||||||||||
|
Item
1123 - Servicer Compliance Statement
|
X
|
X
|
||||||||||||
EXHIBIT
H
ADDITIONAL
DISCLOSURE NOTIFICATION
**SENT
VIA FAX TO [_XXX)XXX-XXXX] AND VIA EMAIL TO [_________________] AND VIA
OVERNIGHT MAIL TO THE ADDRESS IMMEDIATELY BELOW:
▇▇▇▇▇
Fargo Bank, N.A. as Securities Administrator
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
Corporate Trust Services - [DEAL NAME] - SEC REPORT PROCESSING
RE:
**
Additional Form [10-D][10-K][8-K] Disclosure** Required
Ladies
and Gentlemen:
In
accordance with Section [__] of the Pooling and Servicing Agreement, dated
as of [________] [__], 2006 among [_____________], as [______], [_____________],
as [______], [_____________], as [______] and [_____________], as [______],
the
undersigned, as [______], hereby notifies you that certain events have come
to
our attention that [will] [may] need to be disclosed on Form
[10-D][10-K][8-K].
Description
of Additional Form [10-D][10-K][8-K] Disclosure:
List
of any Attachments hereto to be included in the Additional Form
[10-D][10-K][8-K] Disclosure:
Any
inquiries related to this notification should be directed to [_____________],
phone number: [______]; email address: [_________________].
[NAME
OF
PARTY],
as
[role]
By:
_____________________
Name:
Title:
EXHIBIT
I
SWAP
AGREEMENT
|
Deutsche
Bank
Aktiengesellschaft
|
 |
|
Date:
|
January
27, 2006
|
|
To:
|
HSBC
Bank USA, National Association, not in its individual capacity,
but solely
as trustee for the supplemental interest trust created pursuant
to the
Pooling and Servicing Agreement
|
|
Attention:
|
|
|
Facsimile
no.:
|
|
|
Our
Reference:
|
Global
No. N442822N
|
|
Re:
|
Interest
Rate Swap Transaction
|
Ladies
and Gentlemen:
The
purpose of this letter agreement ("Agreement") is to confirm the terms
and
conditions of the Transaction entered into on the Trade Date specified
below
(the "Transaction") between Deutsche Bank AG ("DBAG") and HSBC Bank USA,
National Association, not individually, but solely as trustee of the
Supplemental Interest Trust (“Counterparty”) created under the Pooling and
Servicing Agreement, dated and effective as of January 1,
2006,
among Ace Securities Corp., as Depositor, GMAC Mortgage Corporation and
OCWEN
Loan Servicing, LLC, as servicers, ▇▇▇▇▇ Fargo Bank, National Association,
as
Master Servicer and Securities Administrator, and HSBC Bank USA, National
Association, as Trustee (the “Pooling and Servicing Agreement”). This Agreement,
which evidences a complete and binding agreement between you and us to
enter
into the Transaction on the terms set forth below, constitutes a "Confirmation"
as referred to in the "ISDA Form Master Agreement" (as defined below),
as well
as a “Schedule” as referred to in the ISDA Form Master Agreement.
1. This
Agreement is subject to the 2000
ISDA Definitions (the
“Definitions”), as published by the International Swaps and Derivatives
Association, Inc. (“ISDA”). You and we have agreed to enter into this Agreement
in lieu of negotiating a Schedule to the 1992 ISDA Master Agreement
(Multicurrency—Cross Border) form (the "ISDA Form Master Agreement") but,
rather, an ISDA Form Master Agreement shall be deemed to have been executed
by
you and us on the date we entered into the Transaction. In the event of
any
inconsistency between the provisions of this Agreement and the Definitions
or
the ISDA Form Master Agreement, this Agreement shall prevail for purposes
of the
Transaction. Terms capitalized but not defined herein shall have the meanings
attributed to them in the Pooling and Servicing Agreement.
2. The
terms
of the particular Transaction to which this Confirmation relates are as
follows:
|
Notional
Amount:
|
With
respect to any Calculation Period, the amount set forth for such
period in
Schedule I attached hereto.
|
|
Trade
Date:
|
January
20, 2006
|
|
Effective
Date:
|
January
27, 2006
|
|
Termination
Date:
|
April
25, 2011, subject to adjustment in accordance with the Modified
Following
Business Day Convention.
|
Fixed
Amounts:
|
Fixed
Rate Payer:
|
Counterparty
|
|
Fixed
Rate Payer Period End Dates:
|
The
25th day of each month, commencing February 25, 2006, through
and
including the Termination Date, subject to No
adjustment
|
|
Fixed
Rate Payer Payment Dates:
|
One
Business Day prior to each Floating Rate Payer Period End
Date.
|
|
Fixed
Rate:
|
4.747
%
|
|
Fixed
Rate Day Count Fraction:
|
30/360
|
Floating
Amounts:
|
Floating
Rate Payer:
|
DBAG
|
|
Floating
Rate Payer Period End Dates:
|
The
25th day of each month, commencing February 25, 2006, through
and
including the Termination Date, subject to adjustment in accordance
with
the Modified Following Business Day Convention.
|
|
Floating
Rate Payer Payment Dates:
|
One
Business Day prior to each Floating Rate Payer Period End
Date.
|
|
Floating
Rate Option:
|
USD-LIBOR-BBA
|
|
Designated
Maturity:
|
1
month
|
|
Spread:
|
None
|
|
Floating
Rate Day Count Fraction:
|
Actual/360
|
|
Reset
Dates:
|
The
first day of each Calculation Period
|
|
Compounding:
|
Inapplicable:
|
Calculation
Agent: DBAG
Business
Days: New
York
3. Additional
Provisions: Each
party hereto is hereby advised and acknowledges that the other party has
engaged
in (or refrained from engaging in) substantial financial transactions and
has
taken (or refrained from taking) other material actions in reliance upon
the
entry by the parties into the Transaction being entered into on the terms
and
conditions set forth herein and in the Confirmation relating to such
Transaction, as applicable.
4. Provisions
Deemed Incorporated in a Schedule to the ISDA Form Master
Agreement:
|
1)
|
The
parties agree that subparagraph (ii) of Section 2(c) of the ISDA
Form
Master Agreement will apply to any
Transaction.
|
| 2) |
Termination
Provisions.
Subject to the provisions of paragraph 13 below, for purposes
of the ISDA
Form Master Agreement:
|
(a) "Specified
Entity" is not applicable to DBAG or Counterparty for any purpose.
(b) “Breach
of Agreement” provision of Section 5(a)(ii) will not apply to DBAG or
Counterparty.
(c) “Credit
Support Default” provisions of Section 5(a)(iii) will not apply to Counterparty
and will not apply to DBAG unless DBAG has obtained a guarantee or posted
collateral pursuant to paragraph 12 below.
(d) “Misrepresentation”
provisions of Section 5(a)(iv) will not apply to DBAG or
Counterparty.
(e) "Specified
Transaction" is not applicable to DBAG or Counterparty for any purpose,
and,
accordingly, Section 5(a)(v) shall not apply to DBAG or
Counterparty.
(f) The
"Cross Default" provisions of Section 5(a)(vi) will not apply to DBAG or
to
Counterparty.
(g) With
respect to the Counterparty, the "Bankruptcy" provision of Section 5(a)(vii)(2)
will be deleted in its entirety.
(h) The
"Merger Without Assumption" provisions of Section 5(a)(viii) will not apply
to
Counterparty.
(i) The
"Tax
Event Upon Merger" provisions of Section 5(b)(iii) will not apply to DBAG
as
Burdened Party.
(j) The
"Credit Event Upon Merger" provisions of Section 5(b)(iv) will not apply
to DBAG
or to Counterparty.
(k) The
"Automatic Early Termination" provision of Section 6(a) will not apply
to DBAG
or to Counterparty.
(l) Payments
on Early Termination. For the purpose of Section 6(e) of the ISDA Form
Master
Agreement:
(i)
Market
Quotation will apply.
(ii) The
Second Method will apply.
(m) "Termination
Currency" means United States Dollars.
3)
Tax
Representations.
|
Payer
Representations. For the purpose of Section 3(e) of the
ISDA Form Master
Agreement, DBAG and Counterparty make the following
representations:
|
|
It
is not required by any applicable law, as modified by the practice
of any
relevant governmental revenue authority, of any Relevant Jurisdiction
to
make any deduction or withholding for or on account of any Tax
from any
payment (other than interest under Section 2(e), 6(d)(ii) or
6(e) of
the
ISDA Form Master
Agreement) to be made by it to the other party under this Agreement.
In
making this representation, it may rely on (i) the accuracy of
any
representations made by the other party pursuant to Section 3(f)
of
the
ISDA Form Master
Agreement, (ii) the satisfaction of the agreement contained in
Section
4(a)(i) or 4(a)(iii) of the
ISDA Form Master
Agreement and the accuracy and effectiveness of any document
provided by
the other party pursuant to Section 4(a)(i) or 4(a)(iii) of the
ISDA Form Master
Agreement and (iii) the satisfaction of the agreement of the
other party
contained in Section 4(d) of the
ISDA Form Master
Agreement, provided that it shall not be a breach of this representation
where reliance is placed on clause (ii) and the other party does
not
deliver a form or document under Section 4(a)(iii) by reason
of material
prejudice of its legal or commercial
position.
|
|
Payee
Representations. For the purpose of Section 3 (f) of the
ISDA Form Master
Agreement, DBAG and Counterparty make the following
representations:
|
(i) DBAG
represents that it
is a
“foreign person” within the meaning of the applicable U.S. Treasury Regulations
concerning information reporting and backup withholding tax (as in effect
on
January 1, 2001), unless DBAG provides written notice to Counterparty that
it is
no longer a foreign person. In respect of this Transaction it enters into
through an office or discretionary agent in the United States or which
otherwise
is allocated for United States federal income tax purposes to such United
States
trade or business, each payment received or to be received by it under
such
Transaction will be effectively connected with its conduct of a trade or
business in the United States.
|
(ii)
|
Counterparty
represents that it is trustee for the Supplement Interest Trust
created
under the Pooling and Servicing
Agreement.
|
4)
The
ISDA Form Master Agreement is hereby amended as follows:
(a)
The
word “third” shall be replaced by the word “second” in the third line of Section
5(a)(i) of the ISDA Form Master Agreement;
5)
Documents
to be Delivered.
For the
purpose of Section 4(a)(i) and (ii) of the ISDA Form Master Agreement,
each
party agrees to deliver the following documents, as applicable:
(1) Tax
forms, documents, or certificates to be delivered are:
|
Party
required to deliver document
|
Form/Document/
Certificate
|
Date
by which to
be
delivered
|
|
DBAG
and
the
Counterparty
|
Any
document required or reasonably requested to allow the other
party to make
payments under this Agreement without any deduction or withholding
for or
on the account of any Tax or with such deduction or withholding
at a
reduced rate
|
Promptly
after the earlier of (i) reasonable demand by either party or
(ii)
learning that such form or document is
required
|
(2) Other
documents to be delivered are:
|
Party
required to deliver document
|
Form/Document/
Certificate
|
Date
by which to
be
delivered
|
Covered
by Section 3(d) Representation
|
|
DBAG
and
the
Counterparty
|
Any
documents required by the receiving party to evidence the authority
of the
delivering party or its Credit Support Provider, if any, for
it to execute
and deliver this Agreement, any Confirmation, and any Credit
Support
Documents to which it is a party, and to evidence the authority
of the
delivering party or its Credit Support Provider to perform its
obligations
under this Agreement, such Confirmation and/or Credit Support
Document, as
the case may be
|
Upon
the execution and delivery of this Agreement and such
Confirmation
|
Yes
|
|
DBAG
and
the
Counterparty
|
A
certificate of an authorized officer of the party, as to the
incumbency
and authority of the respective officers of the party signing
this
Agreement, any relevant Credit Support Document, or any Confirmation,
as
the case may be
|
Upon
the execution and delivery of this Agreement and such
Confirmation
|
Yes
|
6)
Miscellaneous
|
(a)
|
Address
for Notices: For the purposes of Section 12(a) of the ISDA Form
Master Agreement:
|
Addresses
for notices or communications to DBAG:
Addresses
for notices to DBAG under Sections 5 or 6 (other than notices under Section
5(a)(i)) shall be sent to:
Deutsche
Bank AG, Head Office
▇▇▇▇▇▇▇▇▇▇▇▇
▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Attention:
Legal Department
Telex
No:
411836 or 416731 or 41233
Answerback: DBF-D
All
other
notices to DBAG shall be sent directly to the Office through which DBAG
is
acting for the relevant Transaction, using the address and contact particulars
specified in the Confirmation of that Transaction or otherwise
notified.
Address
for notices or communications to the Counterparty:
Address: HSBC
Bank
USA, National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ACE Securities Corp., 2006-SL1
(For
all
purposes)
|
With
copy to:
|
▇▇▇▇▇ Fargo Bank, N.A.
|
▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
Client Manager - Ace 2006-SL1
Tel:
▇▇▇-▇▇▇-▇▇▇▇
Fax:
▇▇▇-▇▇▇-▇▇▇▇
(b) Process
Agent. For the purpose of Section 13(c):
DBAG
appoints as its Not
Applicable
The
Counterparty appoints as its Not
Applicable
|
(c)
|
Offices.
The provisions of Section 10(a) will apply to this
Agreement.
|
|
(d)
|
Multibranch
Party. For the purpose of Section 10(c) of the ISDA Form Master
Agreement:
|
DBAG
is
not a Multibranch Party.
|
The
Counterparty is not a Multibranch
Party.
|
|
(e)
|
Calculation
Agent. The Calculation Agent is
DBAG.
|
(f) Credit
Support Document.
| DBAG: |
Not
applicable, except for any guarantee or contingent agreement
delivered
pursuant to paragraph 12 below.
|
|
The
Counterparty:
|
Not
Applicable
|
|
(g)
|
Credit
Support Provider.
|
| DBAG: | Not Applicable |
|
The
Counterparty:
|
Not
Applicable
|
(h) Governing
Law. The
parties to this Agreement hereby agree that the law of the State of New
York
shall govern their rights and duties in whole without regard to conflict
of law
provisions thereof other than New York General Obligations Law Sections
5-1401
and 5-1402.
(i) Severability. If
any
term, provision, covenant, or condition of this Agreement, or the application
thereof to any party or circumstance, shall be held to be invalid or
unenforceable (in whole or in part) for any reason, the remaining terms,
provisions, covenants, and conditions hereof shall continue in full force
and
effect as if this Agreement had been executed with the invalid or unenforceable
portion eliminated, so long as this Agreement as so modified continues
to
express, without material change, the original intentions of the parties
as to
the subject matter of this Agreement and the deletion of such portion of
this
Agreement will not substantially impair the respective benefits or expectations
of the parties.
The
parties shall endeavor to engage in good faith negotiations to replace
any
invalid or unenforceable term, provision, covenant or condition with a
valid or
enforceable term, provision, covenant or condition, the economic effect
of which
comes as close as possible to that of the invalid or unenforceable term,
provision, covenant or condition.
(j) Consent
to Recording. Each
party hereto consents to the monitoring or recording, at any time and from
time
to time, by the other party of any and all communications between officers
or
employees of the parties, waives any further notice of such monitoring
or
recording, and agrees to notify its officers and employees of such monitoring
or
recording.
(k) Waiver
of
Jury Trial. Each
party waives any right it may have to a trial by jury in respect of any
Proceedings relating to this Agreement or any Credit Support Document.
(l) Trustee
Capacity. It is expressly understood and agreed by the parties hereto that
insofar as this Confirmation is executed by the Trustee (i) this Confirmation
is
executed and delivered by HSBC Bank USA, National Association not in its
individual capacity but solely as trustee for the Supplement Interest Trust
created under the Pooling and Servicing Agreement referred to in this
Confirmation in the exercise of the powers and authority conferred and
invested
in it thereunder (ii) each of the representations, undertakings and agreements
herein made on behalf of the Supplemental Interest Trust is made and intended
not as personal representations, undertakings and agreements by HSBC Bank,
National Association but is made and intended for the purposes of binding
only
the Supplement Interest Trust, (iii) nothing herein contained shall be
construed
as creating any liability on the part of HSBC Bank USA, National Association,
individually or personally, to perform any covenant either expressed or
implied
contained herein, all such liability, if any, being expressly waived by
the
parties hereto and by any Person claiming by, through or under the parties
hereto, (iv) under no circumstances shall HSBC Bank USA, National Association
in
its individual capacity be personally liable for the payment of any indebtedness
or expenses or be personally liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken under this Confirmation
or any other related documents, and (v) the parties hereto acknowledge
and agree
that under (a) the Pooling and Servicing Agreement, and (b) this Agreement,
the
Securities Administrator may act for Counterparty hereunder, and DBAG hereby
acknowledges and agrees that it will, unless otherwise directed by the
Supplemental Interest Trust Trustee or the Securities Administrator, make
all
payments hereunder to the account specified below. DBAG shall be entitled
to
rely, shall be fully protected in relying, and shall incur no liability
from
relying in good faith, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, facsimile or telephone message,
statement or other document or conversation believed by it to be genuine
and
correct and to have been signed, sent or made by the Securities Administrator.
(m) Proceedings.
DBAG
shall not institute against or cause any other person to institute against,
or
join any other person in instituting against, Ace Securities Corp., Ace
Securities Corp. Home Equity Loan Trust, Series 2006-SL1 or HSBC Bank USA,
National Association, not individually, but solely as Trustee for the
Supplemental Interest Trust any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings under any federal
or
state bankruptcy or similar law for a period of one year and one day (or,
if
longer, the applicable preference period) following payment in full of
the
Certificates. This provision will survive the termination of this
Agreement.
(n) DBAG
hereby agrees that, notwithstanding any provision of this agreement to
the
contrary, Counterparty’s obligations to pay any amounts owing under this
Agreement shall be subject to Section 5.01 of the Pooling and Servicing
Agreement and DBAG’s right to receive payment of such amounts shall be subject
to Section 5.01 of the Pooling and Servicing Agreement. This provision
will
survive the termination of this Agreement.
7)
"Affiliate." DBAG and Counterparty shall be deemed to not have any Affiliates
for purposes of this Agreement, including for purposes of Section 6(b)(ii).
This
provision will survive the termination of this Agreement.
8)
Section 3 of the ISDA Form Master Agreement is hereby amended by adding
at the
end thereof the following subsection (g):
"(g) Relationship
Between Parties.
Each
party represents to the other party on each date when it enters into a
Transaction that:--
(1)
Nonreliance.
It is
not relying on any statement or representation of the other party regarding
the
Transaction (whether written or oral), other than the representations expressly
made in this Agreement or the Confirmation in respect of that Transaction.
(2)
Evaluation
and Understanding.
(i)
DBAG
is acting for its own account and HSBC Bank USA, National Association is
acting
as trustee for the Supplemental Interest Trust created under the Pooling
and
Servicing Agreement and not for its own account. Each party has the capacity
to
evaluate (internally or through independent professional advice) the Transaction
and has made its own decision to enter into the Transaction;
(ii)
It
understands the terms, conditions and risks of the Transaction and is willing
and able to accept those terms and conditions and to assume those risks,
financially and otherwise; and
(3) Purpose.
It is an “eligible swap participant” as such term is defined in Section
35.1(b)(2) of the regulations (17 C.F.R 35) promulgated under, and an “eligible
contract participant” as defined in Section 1(a)(12) of, the Commodity Exchange
Act, as amended, and it is entering into the Transaction for the purposes
of
managing its borrowings or investments, hedging its underlying assets or
liabilities or in connection with a line of business.
(4) Status
of Parties.
The
other party is not acting as an agent, fiduciary or advisor for it in respect
of
the Transaction.”
9)
Set-off.
Notwithstanding any provision of this Agreement or any other existing or
future
agreement, each party irrevocably waives any and all rights it may have
to set
off, net, recoup or otherwise withhold or suspend or condition payment
or
performance of any obligation between it and the other party hereunder
against
any obligation between it and the other party under any other agreements.
The
provisions for Set-off set forth in Section 6(e) of the Agreement shall
not
apply for purposes of this Transaction.
10)
Transfer,
Amendment and Assignment.
No
transfer, amendment, waiver, supplement, assignment or other modification
of
this Transaction shall be permitted by either party unless each of Standard
& Poor’s Ratings Service, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
(“S&P”) and ▇▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”) has been provided
notice of the same and confirms in writing (including by facsimile transmission)
that it will not downgrade, qualify, withdraw or otherwise modify its
then-current rating of the Certificates.
11)
Additional
Termination Events.
The
following Additional Termination Events will apply, in each case with respect
Counterparty as the sole Affected Party (unless otherwise provided
below):
| (i) |
DBAG
fails to comply with the Rating Agency Downgrade provisions as
set forth
in Section 12 below. For all purposes of this Agreement, DBAG
shall be the
sole Affected Party with respect to the occurrence of a Termination
Event
described in this Section 11(i).
|
| (ii) | With respect to Counterparty only, any amendment to the Pooling and Servicing Agreement which materially adversely affects any of DBAG's rights thereunder is made without prior written consent of DBAG, where such consent is required under the Pooling and Servicing Agreement. |
| (iii) | If the Trustee is unable to pay its Class A Certificates or fails or admits in writing its inability to pay its Class A Certificates as they become due. |
| (iv) |
If,
at any time, the Master Servicer purchases the Mortgage Loans
pursuant to
Section 10.01 of the Pooling and Servicing Agreement, then an
Additional
Termination Event shall have occurred and Counterparty shall
be the sole
Affected Party with respect thereto; provided, however, that
notwithstanding Section 6(b)(iv) of the ISDA Form Master Agreement,
only
Counterparty shall have the right to designate an Early Termination
Date
in respect of this Additional Termination
Event.
|
| (v) |
If,
upon the occurrence of a Swap Disclosure Event (as defined in
Part 13
below) DBAG has not, within 15 days after such Swap Disclosure
Event
complied with any of the provisions set forth in Part 13(iii)
below, then
an Additional Termination Event shall have occurred with respect
to DBAG
and DBAG shall be the sole Affected Party with respect to such
Additional
Termination Event.
|
12)
Rating
Agency Downgrade.
In the
event that DBAG’s short-term unsecured and unsubordinated debt rating is
withdrawn or reduced below “A-1” by S&P or, if DBAG has both a long-term
credit rating and a short-term credit rating from Moody’s (and together with
S&P, the “Swap Rating Agencies”), and either its long-term unsecured and
unsubordinated debt rating is withdrawn or reduced below “A2” by Moody’s or its
short-term credit rating is withdrawn or reduced below “P-1” by Moody’s (and
together with S&P, the “Swap Rating Agencies”, and such rating thresholds,
“Approved Rating Thresholds”), then within 30 days after such rating withdrawal
or downgrade, DBAG shall, subject to the Rating Agency Condition and at
its own
expense, either (i) cause another entity to replace DBAG as party to this
Agreement that meets or exceeds the Approved Rating Thresholds on terms
substantially similar to this Agreement, (ii) obtain a guaranty of, or
a
contingent agreement of another person with the Approved Rating Thresholds,
to
honor, DBAG’s obligations under this Agreement, (iii) post collateral which will
be sufficient to restore the immediately prior ratings of the Certificates,
or
(iv) establish any other arrangement satisfactory to the Swap Rating Agencies,
which will be sufficient to restore the immediately prior ratings of the
Certificates. Notwithstanding the previous sentence, in the event that
DBAG’s
long-term unsecured and unsubordinated debt rating is reduced below “BBB-” or
its short-term unsecured and unsubordinated debt rating is reduced below
“A-3”
or is withdrawn by S&P, then within 10 days after such rating withdrawal or
downgrade, DBAG shall, subject to the Rating Agency Condition and at its
own
expense, either (i) cause another entity to replace DBAG as party to this
Agreement that meets or exceeds the Approved Rating Thresholds on terms
substantially similar to this Agreement or (ii) obtain a guaranty of, or
a
contingent agreement of another person with the Approved Rating Thresholds,
to
honor, DBAG’s obligations under this Agreement. For purposes of this provision,
“Rating Agency Condition” means, with respect to any particular proposed act or
omission to act hereunder that the party acting or failing to act must
consult
with each of the Swap Rating Agencies then providing a rating of the
Certificates and receive from each of the Swap Rating Agencies a prior
written
confirmation that the proposed action or inaction would not cause a downgrade
or
withdrawal of the then-current rating of the Certificates.
13)
Compliance
with Regulation AB.
| (i) |
DBAG
agrees and acknowledges that Ace Securities Corp. (“ACE”) is required
under Regulation AB under the Securities Act of 1933, as amended,
and the
Securities Exchange Act of 1934, as amended (the “Exchange Act”)
(“Regulation AB”), to disclose certain financial information regarding
DBAG or its group of affiliated entities, if applicable, depending
on the
aggregate “significant percentage” of this Agreement and any other
derivative contracts between DBAG or its group of affiliated
entities, if
applicable, and Counterparty, as calculated from time to time
in
accordance with Item 1115 of Regulation
AB.
|
| (ii) |
It
shall be a swap disclosure event (“Swap Disclosure Event”) if, on any
Business Day after the date hereof, ACE requests from DBAG the
applicable
financial information described in Item 1115 of Regulation AB
(such
request to be based on a reasonable determination by ACE, in
good faith,
that such information is required under Regulation AB) (the “Swap
Financial Disclosure”).
|
| (iii) |
Upon
the occurrence of a Swap Disclosure Event, DBAG, at its own expense,
shall
(a) provide to ACE the Swap Financial Disclosure, (b) secure
another
entity to replace DBAG as party to this Agreement on terms substantially
similar to this Agreement which entity (or a guarantor therefore)
meets or
exceeds the Approved Rating Thresholds and which satisfies the
Rating
Agency Condition and which entity is able to comply with the
requirements
of Item 1115 of Regulation AB or (c) obtain a guaranty of the
DBAG’s
obligations under this Agreement from an affiliate of the DBAG,
subject to
the Rating Agency Condition, that is able to comply with the
financial
information disclosure requirements of Item 1115 of Regulation
AB, such
that disclosure provided in respect of the affiliate will satisfy
any
disclosure requirements applicable to the Swap Provider, and
cause such
affiliate to provide Swap Financial Disclosure. If permitted
by Regulation
AB, any required Swap Financial Disclosure may be provided by
incorporation by reference from reports filed pursuant to the
Exchange
Act.
|
| (iv) |
DBAG
agrees that, in the event that DBAG provides Swap Financial Disclosure
to
ACE in accordance with Part 13(iii)(a) or causes its affiliate
to provide
Swap Financial Disclosure to ACE in accordance with Part 13(iii)(c),
it
will indemnify and hold harmless ACE, its respective directors
or officers
and any person controlling ACE, from and against any and all
losses,
claims, damages and liabilities caused by any untrue statement
or alleged
untrue statement of a material fact contained in such Swap Financial
Disclosure or caused by any omission or alleged omission to state
in such
Swap Financial Disclosure a material fact, when considered in
conjunction
with any other information regarding Party A or the derivative
instrument
being written by Party A in the final prospectus for ACE-2006-SL1,
required to be stated therein or necessary to make the statements
therein,
in light of the circumstances under which they were made, not
misleading.
|
14)
Third
Party Beneficiary.
ACE
shall be an express third party beneficiary of this Agreement as if a party
hereto to the extent of ACE’s rights explicitly specified herein.
5. Account
Details:
Account
Details for DBAG:
Deutsche
Bank AG New York
ABA#
▇▇▇▇▇▇▇▇▇
Acct#
100440170004
Swift
Code: ▇▇▇▇▇▇▇▇
Account
Details for Counterparty:
▇▇▇▇▇
Fargo Bank, NA
ABA
#
▇▇▇▇▇▇▇▇▇
Account
Name: SAS Clearing
Account
#
▇▇▇▇▇▇▇▇▇▇
FFC
to:
ACE 2006-SL1 Supplemental Fund #50892802
6. Offices:
The
Office of DBAG for this Transaction is New York
7. Please
confirm that the foregoing correctly sets forth the terms of our agreement
by
having an authorized officer sign this Confirmation and return it via facsimile
to:
|
Attention:
Derivative Documentation
|
||
|
Telephone:
▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
|
||
|
Facsimile:
44 20 7545 9761
|
||
|
E-mail:
▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇.▇▇▇
|
This
message will be the only form of Confirmation dispatched by us. If you
wish to
exchange hard copy forms of this Confirmation, please contact us.
Yours
sincerely,
DEUTSCHE
BANK AG - New York Branch
By: ____________________________________
Name: __________________________________
Title: Authorized
Signatory
By: ____________________________________
Name: __________________________________
Title: Authorized
Signatory
Confirmed
as of the date first written above:
HSBC
Bank
USA, National Association, not in its individual capacity, but solely as
trustee
for the Supplemental Interest Trust
By: ____________________________________
Name: __________________________________
Title: ___________________________________
SCHEDULE
I
|
From
and including:
|
To
but excluding:
|
NotionalAmount
(USD):
|
|
1/27/2006
|
2/25/2006
|
362,883,345.00
|
|
2/25/2006
|
3/25/2006
|
340,885,478.00
|
|
3/25/2006
|
4/25/2006
|
320,219,657.00
|
|
4/25/2006
|
5/25/2006
|
300,805,297.00
|
|
5/25/2006
|
6/25/2006
|
282,566,684.00
|
|
6/25/2006
|
7/25/2006
|
265,432,682.00
|
|
7/25/2006
|
8/25/2006
|
249,336,456.00
|
|
8/25/2006
|
9/25/2006
|
234,215,209.00
|
|
9/25/2006
|
10/25/2006
|
220,009,944.00
|
|
10/25/2006
|
11/25/2006
|
206,665,228.00
|
|
11/25/2006
|
12/25/2006
|
194,128,983.00
|
|
12/25/2006
|
1/25/2007
|
182,352,276.00
|
|
1/25/2007
|
2/25/2007
|
171,289,137.00
|
|
2/25/2007
|
3/25/2007
|
160,896,373.00
|
|
3/25/2007
|
4/25/2007
|
151,133,405.00
|
|
4/25/2007
|
5/25/2007
|
141,962,107.00
|
|
5/25/2007
|
6/25/2007
|
133,346,661.00
|
|
6/25/2007
|
7/25/2007
|
125,253,412.00
|
|
7/25/2007
|
8/25/2007
|
117,650,744.00
|
|
8/25/2007
|
9/25/2007
|
110,508,952.00
|
|
9/25/2007
|
10/25/2007
|
103,800,128.00
|
|
10/25/2007
|
11/25/2007
|
97,498,052.00
|
|
11/25/2007
|
12/25/2007
|
91,578,091.00
|
|
12/25/2007
|
1/25/2008
|
86,017,103.00
|
|
1/25/2008
|
2/25/2008
|
80,793,345.00
|
|
2/25/2008
|
3/25/2008
|
75,886,390.00
|
|
3/25/2008
|
4/25/2008
|
71,277,047.00
|
|
4/25/2008
|
5/25/2008
|
66,947,288.00
|
|
5/25/2008
|
6/25/2008
|
62,880,172.00
|
|
6/25/2008
|
7/25/2008
|
59,059,789.00
|
|
7/25/2008
|
8/25/2008
|
55,471,187.00
|
|
8/25/2008
|
9/25/2008
|
52,100,322.00
|
|
9/25/2008
|
10/25/2008
|
48,933,998.00
|
|
10/25/2008
|
11/25/2008
|
45,959,820.00
|
|
11/25/2008
|
12/25/2008
|
43,166,142.00
|
|
12/25/2008
|
1/25/2009
|
40,542,024.00
|
|
1/25/2009
|
2/25/2009
|
38,077,186.00
|
|
2/25/2009
|
3/25/2009
|
35,761,975.00
|
|
3/25/2009
|
4/25/2009
|
33,587,318.00
|
|
4/25/2009
|
5/25/2009
|
31,544,694.00
|
|
5/25/2009
|
6/25/2009
|
29,626,097.00
|
|
6/25/2009
|
7/25/2009
|
27,824,006.00
|
|
7/25/2009
|
8/25/2009
|
26,131,356.00
|
|
8/25/2009
|
9/25/2009
|
24,541,510.00
|
|
9/25/2009
|
10/25/2009
|
23,048,233.00
|
|
10/25/2009
|
11/25/2009
|
21,645,666.00
|
|
11/25/2009
|
12/25/2009
|
20,328,308.00
|
|
12/25/2009
|
1/25/2010
|
19,090,989.00
|
|
1/25/2010
|
2/25/2010
|
17,928,854.00
|
|
2/25/2010
|
3/25/2010
|
16,837,340.00
|
|
3/25/2010
|
4/25/2010
|
15,812,162.00
|
|
4/25/2010
|
5/25/2010
|
14,849,309.00
|
|
5/25/2010
|
6/25/2010
|
13,944,983.00
|
|
6/25/2010
|
7/25/2010
|
13,095,632.00
|
|
7/25/2010
|
8/25/2010
|
12,297,920.00
|
|
8/25/2010
|
9/25/2010
|
11,548,711.00
|
|
9/25/2010
|
10/25/2010
|
10,845,060.00
|
|
10/25/2010
|
11/25/2010
|
10,184,203.00
|
|
11/25/2010
|
12/25/2010
|
9,563,540.00
|
|
12/25/2010
|
1/25/2011
|
8,980,631.00
|
|
1/25/2011
|
2/25/2011
|
8,433,182.00
|
|
2/25/2011
|
3/25/2011
|
7,919,041.00
|
|
3/25/2011
|
4/25/2011
|
7,436,183.00
|
|
4/25/2011
|
5/25/2011
|
-
|
SCHEDULE
1
MORTGAGE
LOAN SCHEDULE
[PROVIDED
UPON REQUEST]
SCHEDULE
2
PREPAYMENT
CHARGE SCHEDULE
[FILED
BY
PAPER]
SCHEDULE
3
[RESERVED]
SCHEDULE
4
STANDARD
FILE LAYOUT- DELINQUENCY REPORTING
Exhibit
: Standard
File Layout - Delinquency Reporting
|
Column/Header
Name
|
Description
|
Decimal
|
Format
Comment
|
|
SERVICER_LOAN_NBR
|
A
unique number assigned to a loan by the Servicer. This may be different
than the LOAN_NBR
|
|
|
|
LOAN_NBR
|
A
unique identifier assigned to each loan by the originator.
|
|
|
|
CLIENT_NBR
|
Servicer
Client Number
|
||
|
SERV_INVESTOR_NBR
|
Contains
a unique number as assigned by an external servicer to identify
a group of
loans in their system.
|
|
|
|
BORROWER_FIRST_NAME
|
First
Name of the Borrower.
|
||
|
BORROWER_LAST_NAME
|
Last
name of the borrower.
|
||
|
PROP_ADDRESS
|
Street
Name and Number of Property
|
|
|
|
PROP_STATE
|
The
state where the property located.
|
|
|
|
PROP_ZIP
|
Zip
code where the property is located.
|
|
|
|
BORR_NEXT_PAY_DUE_DATE
|
The
date that the borrower's next payment is due to the servicer at
the end of
processing cycle, as reported by Servicer.
|
MM/DD/YYYY
|
|
|
LOAN_TYPE
|
Loan
Type (i.e. FHA, VA, Conv)
|
|
|
|
BANKRUPTCY_FILED_DATE
|
The
date a particular bankruptcy claim was filed.
|
MM/DD/YYYY
|
|
|
BANKRUPTCY_CHAPTER_CODE
|
The
chapter under which the bankruptcy was filed.
|
|
|
|
BANKRUPTCY_CASE_NBR
|
The
case number assigned by the court to the bankruptcy
filing.
|
|
|
|
POST_PETITION_DUE_DATE
|
The
payment due date once the bankruptcy has been approved by the
courts
|
MM/DD/YYYY
|
|
|
BANKRUPTCY_DCHRG_DISM_DATE
|
The
Date The Loan Is Removed From Bankruptcy. Either by Dismissal,
Discharged
and/or a Motion For Relief Was Granted.
|
MM/DD/YYYY
|
|
|
LOSS_MIT_APPR_DATE
|
The
Date The Loss Mitigation Was Approved By The Servicer
|
MM/DD/YYYY
|
|
|
LOSS_MIT_TYPE
|
The
Type Of Loss Mitigation Approved For A Loan Such As;
|
||
|
LOSS_MIT_EST_COMP_DATE
|
The
Date The Loss Mitigation /Plan Is Scheduled To End/Close
|
MM/DD/YYYY
|
|
|
LOSS_MIT_ACT_COMP_DATE
|
The
Date The Loss Mitigation Is Actually Completed
|
MM/DD/YYYY
|
|
|
FRCLSR_APPROVED_DATE
|
The
date DA Admin sends a letter to the servicer with instructions
to begin
foreclosure proceedings.
|
MM/DD/YYYY
|
|
|
ATTORNEY_REFERRAL_DATE
|
Date
File Was Referred To Attorney to Pursue Foreclosure
|
MM/DD/YYYY
|
|
|
FIRST_LEGAL_DATE
|
Notice
of 1st legal filed by an Attorney in a Foreclosure Action
|
MM/DD/YYYY
|
|
|
FRCLSR_SALE_EXPECTED_DATE
|
The
date by which a foreclosure sale is expected to occur.
|
MM/DD/YYYY
|
|
|
FRCLSR_SALE_DATE
|
The
actual date of the foreclosure sale.
|
MM/DD/YYYY
|
|
|
FRCLSR_SALE_AMT
|
The
amount a property sold for at the foreclosure sale.
|
2
|
No
commas(,) or dollar signs ($)
|
|
EVICTION_START_DATE
|
The
date the servicer initiates eviction of the borrower.
|
MM/DD/YYYY
|
|
|
EVICTION_COMPLETED_DATE
|
The
date the court revokes legal possession of the property from the
borrower.
|
MM/DD/YYYY
|
|
|
LIST_PRICE
|
The
price at which an REO property is marketed.
|
2
|
No
commas(,) or dollar signs ($)
|
|
LIST_DATE
|
The
date an REO property is listed at a particular price.
|
MM/DD/YYYY
|
|
|
OFFER_AMT
|
The
dollar value of an offer for an REO property.
|
2
|
No
commas(,) or dollar signs ($)
|
|
OFFER_DATE_TIME
|
The
date an offer is received by DA Admin or by the Servicer.
|
MM/DD/YYYY
|
|
|
REO_CLOSING_DATE
|
The
date the REO sale of the property is scheduled to close.
|
MM/DD/YYYY
|
|
|
REO_ACTUAL_CLOSING_DATE
|
Actual
Date Of REO Sale
|
MM/DD/YYYY
|
|
|
OCCUPANT_CODE
|
Classification
of how the property is occupied.
|
|
|
|
PROP_CONDITION_CODE
|
A
code that indicates the condition of the property.
|
|
|
|
PROP_INSPECTION_DATE
|
The
date a property inspection is performed.
|
MM/DD/YYYY
|
|
|
APPRAISAL_DATE
|
The
date the appraisal was done.
|
MM/DD/YYYY
|
|
|
CURR_PROP_VAL
|
The
current "as is" value of the property based on brokers price opinion
or
appraisal.
|
2
|
|
|
REPAIRED_PROP_VAL
|
The
amount the property would be worth if repairs are completed pursuant
to a
broker's price opinion or appraisal.
|
2
|
|
|
If
applicable:
|
|
|
|
|
DELINQ_STATUS_CODE
|
FNMA
Code Describing Status of Loan
|
||
|
DELINQ_REASON_CODE
|
The
circumstances which caused a borrower to stop paying on a loan.
Code
indicates the reason why the loan is in default for this
cycle.
|
||
|
MI_CLAIM_FILED_DATE
|
Date
Mortgage Insurance Claim Was Filed With Mortgage Insurance
Company.
|
MM/DD/YYYY
|
|
|
MI_CLAIM_AMT
|
Amount
of Mortgage Insurance Claim Filed
|
No
commas(,) or dollar signs ($)
|
|
|
MI_CLAIM_PAID_DATE
|
Date
Mortgage Insurance Company Disbursed Claim Payment
|
MM/DD/YYYY
|
|
|
MI_CLAIM_AMT_PAID
|
Amount
Mortgage Insurance Company Paid On Claim
|
2
|
No
commas(,) or dollar signs ($)
|
|
POOL_CLAIM_FILED_DATE
|
Date
Claim Was Filed With Pool Insurance Company
|
MM/DD/YYYY
|
|
|
POOL_CLAIM_AMT
|
Amount
of Claim Filed With Pool Insurance Company
|
2
|
No
commas(,) or dollar signs ($)
|
|
POOL_CLAIM_PAID_DATE
|
Date
Claim Was Settled and The Check Was Issued By The Pool
Insurer
|
MM/DD/YYYY
|
|
|
POOL_CLAIM_AMT_PAID
|
Amount
Paid On Claim By Pool Insurance Company
|
2
|
No
commas(,) or dollar signs ($)
|
|
FHA_PART_A_CLAIM_FILED_DATE
|
Date
FHA Part A Claim Was Filed With HUD
|
MM/DD/YYYY
|
|
|
FHA_PART_A_CLAIM_AMT
|
Amount
of FHA Part A Claim Filed
|
2
|
No
commas(,) or dollar signs ($)
|
|
FHA_PART_A_CLAIM_PAID_DATE
|
Date
HUD Disbursed Part A Claim Payment
|
MM/DD/YYYY
|
|
|
FHA_PART_A_CLAIM_PAID_AMT
|
Amount
HUD Paid on Part A Claim
|
2
|
No
commas(,) or dollar signs ($)
|
|
FHA_PART_B_CLAIM_FILED_DATE
|
Date
FHA Part B Claim Was Filed With HUD
|
MM/DD/YYYY
|
|
|
FHA_PART_B_CLAIM_AMT
|
Amount
of FHA Part B Claim Filed
|
2
|
No
commas(,) or dollar signs ($)
|
|
FHA_PART_B_CLAIM_PAID_DATE
|
Date
HUD Disbursed Part B Claim Payment
|
MM/DD/YYYY
|
|
|
FHA_PART_B_CLAIM_PAID_AMT
|
Amount
HUD Paid on Part B Claim
|
2
|
No
commas(,) or dollar signs ($)
|
|
VA_CLAIM_FILED_DATE
|
Date
VA Claim Was Filed With the Veterans Admin
|
MM/DD/YYYY
|
|
|
VA_CLAIM_PAID_DATE
|
Date
Veterans Admin. Disbursed VA Claim Payment
|
MM/DD/YYYY
|
|
|
VA_CLAIM_PAID_AMT
|
Amount
Veterans Admin. Paid on VA Claim
|
2
|
No
commas(,) or dollar signs ($)
|
Exhibit
2: Standard
File Codes - Delinquency Reporting
The
Loss
Mit Type
field
should show the approved Loss Mitigation Code as follows:
|
·
|
ASUM-
|
Approved
Assumption
|
|
·
|
BAP-
|
Borrower
Assistance Program
|
|
·
|
CO-
|
Charge
Off
|
|
·
|
DIL-
|
Deed-in-Lieu
|
|
·
|
FFA-
|
Formal
Forbearance Agreement
|
|
·
|
MOD-
|
Loan
Modification
|
|
·
|
PRE-
|
Pre-Sale
|
|
·
|
SS-
|
Short
Sale
|
|
·
|
MISC-
|
Anything
else approved by the PMI or Pool
Insurer
|
NOTE:
▇▇▇▇▇ Fargo Bank will accept alternative Loss Mitigation Types to those above,
provided that they are consistent with industry standards. If Loss Mitigation
Types other than those above are used, the Servicer must supply ▇▇▇▇▇ Fargo
Bank
with a description of each of the Loss Mitigation Types prior to sending
the
file.
The
Occupant
Code
field should show the current status of the property code as
follows:
|
·
|
Mortgagor
|
|
·
|
Tenant
|
|
·
|
Unknown
|
|
·
|
Vacant
|
The
Property
Condition
field should show the last reported condition of the property as follows:
· Damaged
· Excellent
· Fair
· Gone
· Good
· Poor
· Special
Hazard
· Unknown
Exhibit
2: Standard
File Codes - Delinquency Reporting, Continued
The
FNMA
Delinquent Reason Code
field should show the Reason for Delinquency as follows:
|
Delinquency
Code
|
Delinquency
Description
|
|
001
|
FNMA-Death
of principal mortgagor
|
|
002
|
FNMA-Illness
of principal mortgagor
|
|
003
|
FNMA-Illness
of mortgagor’s family member
|
|
004
|
FNMA-Death
of mortgagor’s family member
|
|
005
|
FNMA-Marital
difficulties
|
|
006
|
FNMA-Curtailment
of income
|
|
007
|
FNMA-Excessive
Obligation
|
|
008
|
FNMA-Abandonment
of property
|
|
009
|
FNMA-Distant
employee transfer
|
|
011
|
FNMA-Property
problem
|
|
012
|
FNMA-Inability
to sell property
|
|
013
|
FNMA-Inability
to rent property
|
|
014
|
FNMA-Military
Service
|
|
015
|
FNMA-Other
|
|
016
|
FNMA-Unemployment
|
|
017
|
FNMA-Business
failure
|
|
019
|
FNMA-Casualty
loss
|
|
022
|
FNMA-Energy
environment costs
|
|
023
|
FNMA-Servicing
problems
|
|
026
|
FNMA-Payment
adjustment
|
|
027
|
FNMA-Payment
dispute
|
|
029
|
FNMA-Transfer
of ownership pending
|
|
030
|
FNMA-Fraud
|
|
031
|
FNMA-Unable
to contact borrower
|
|
INC
|
FNMA-Incarceration
|
Exhibit
2: Standard
File Codes - Delinquency Reporting, Continued
The
FNMA
Delinquent Status Code
field should show the Status of Default as follows:
|
Status
Code
|
Status
Description
|
|
09
|
Forbearance
|
|
17
|
Pre-foreclosure
Sale Closing Plan Accepted
|
|
24
|
Government
Seizure
|
|
26
|
Refinance
|
|
27
|
Assumption
|
|
28
|
Modification
|
|
29
|
Charge-Off
|
|
30
|
Third
Party Sale
|
|
31
|
Probate
|
|
32
|
Military
Indulgence
|
|
43
|
Foreclosure
Started
|
|
44
|
Deed-in-Lieu
Started
|
|
49
|
Assignment
Completed
|
|
61
|
Second
Lien Considerations
|
|
62
|
Veteran’s
Affairs-No Bid
|
|
63
|
Veteran’s
Affairs-Refund
|
|
64
|
Veteran’s
Affairs-Buydown
|
|
65
|
Chapter
7 Bankruptcy
|
|
66
|
Chapter
11 Bankruptcy
|
|
67
|
Chapter
13 Bankruptcy
|
Exhibit
: Calculation
of Realized Loss/Gain Form 332- Instruction Sheet
NOTE:
Do not net or combine items. Show all expenses individually and all credits
as
separate line items. Claim packages are due on the remittance report date.
Late
submissions may result in claims not being passed until the following month.
The
Servicer is responsible to remit all funds pending loss approval and /or
resolution of any disputed items.
The
numbers on the 332 form correspond with the numbers listed below.
Liquidation
and Acquisition Expenses:
| 1. |
The
Actual Unpaid Principal Balance of the Mortgage Loan. For documentation,
an Amortization Schedule from date of default through liquidation
breaking
out the net interest and servicing fees advanced is
required.
|
| 2. |
The
Total Interest Due less the aggregate amount of servicing fee that
would
have been earned if all delinquent payments had been made as agreed.
For
documentation, an Amortization Schedule from date of default through
liquidation breaking out the net interest and servicing fees advanced
is
required.
|
| 3. |
Accrued
Servicing Fees based upon the Scheduled Principal Balance of the
Mortgage
Loan as calculated on a monthly basis. For documentation, an Amortization
Schedule from date of default through liquidation breaking out
the net
interest and servicing fees advanced is
required.
|
| 4-12. |
Complete
as applicable. Required
documentation:
|
*
For
taxes and insurance advances - see page 2 of 332 form - breakdown required
showing period
of
coverage, base tax, interest, penalty. Advances prior to default require
evidence of servicer efforts to recover advances.
*
For
escrow advances - complete payment history
(to
calculate advances from last positive escrow balance forward)
*
Other
expenses - copies of corporate advance history showing all payments
*
REO
repairs > $1500 require explanation
*
REO
repairs >$3000 require evidence of at least 2 bids.
*
Short
Sale or Charge Off require P&L supporting the decision and
WFB’s approved Officer Certificate
*
Unusual
or extraordinary items may require further documentation.
13. The
total
of lines 1 through 12.
Credits:
14-21. Complete
as applicable. Required documentation:
*
Copy of
the HUD 1 from the REO sale. If a 3rd
Party
Sale, bid instructions and Escrow
Agent / Attorney
Letter
of
Proceeds
Breakdown.
*
Copy of
EOB for any MI or gov't guarantee
*
All
other credits need to be clearly defined on the 332
form
|
22.
|
The
total of lines 14 through 21.
|
Please
Note: For
HUD/VA loans, use line (18a) for Part A/Initial proceeds and line (18b) for
Part
B/Supplemental proceeds.
Total
Realized Loss (or Amount of Any Gain)
23. The
total
derived from subtracting line 22 from 13. If the amount represents a realized
gain, show
the
amount in parenthesis ( ).
Exhibit
3A: Calculation
of Realized Loss/Gain Form 332
Prepared
by: __________________ Date:
_______________
Phone:
______________________ Email
Address:_____________________
|
Servicer
Loan No.
|
Servicer
Name
|
Servicer
Address
|
▇▇▇▇▇
FARGO BANK, N.A. Loan No._____________________________
Borrower's
Name: _________________________________________________________
Property
Address: _________________________________________________________
Liquidation
Type: REO Sale
3rd
Party Sale Short
Sale
Charge
Off
Was
this loan granted a Bankruptcy deficiency or cramdown Yes
No
If
“Yes”,
provide deficiency or cramdown amount
_______________________________
Liquidation
and Acquisition Expenses:
|
|
(1)
|
Actual
Unpaid Principal Balance of Mortgage Loan
|
$
______________
|
(1)
|
|||||
|
|
(2)
|
Interest
accrued at Net Rate
|
________________
|
(2)
|
|||||
|
|
(3)
|
Accrued
Servicing Fees
|
________________
|
(3)
|
|||||
|
|
(4)
|
Attorney's
Fees
|
________________
|
(4)
|
|||||
|
|
(5)
|
Taxes
|
________________
|
(5)
|
|||||
|
|
(6)
|
Property
Maintenance
|
________________
|
(6)
|
|||||
|
|
(7)
|
MI/Hazard
Insurance Premiums
|
________________
|
(7)
|
|||||
|
|
(8)
|
Utility
Expenses
|
________________
|
(8)
|
|||||
|
|
(9)
|
Appraisal/BPO
|
________________
|
(9)
|
|||||
|
|
(10)
|
Property
Inspections
|
________________
|
(10)
|
|||||
|
|
(11)
|
FC
Costs/Other Legal Expenses
|
________________
|
(11)
|
|||||
|
|
(12)
|
Other
(itemize)
|
$________________
|
(12)
|
|||||
|
|
Cash
for Keys__________________________
|
|
________________
|
|
|||||
|
|
HOA/Condo
Fees_______________________
|
|
________________
|
|
|||||
|
|
______________________________________
|
|
________________
|
|
|||||
|
|
______________________________________
|
|
________________
|
|
|||||
|
|
Total
Expenses
|
|
$
_______________
|
(13)
|
|||||
|
|
Credits:
|
|
|
|
|||||
|
|
(14)
|
Escrow
Balance
|
$
_______________
|
(14)
|
|||||
|
|
(15)
|
HIP
Refund
|
________________
|
(15)
|
|||||
|
|
(16)
|
Rental
Receipts
|
________________
|
(16)
|
|||||
|
|
(17)
|
Hazard
Loss Proceeds
|
________________
|
(17)
|
|||||
|
|
(18)
|
Primary
Mortgage Insurance Proceeds
|
________________
|
(18)
|
|||||
|
|
|
HUD
Part A
|
________________
|
(18a)
|
|||||
|
|
|
HUD
Part B
|
________________
|
(18b)
|
|||||
|
|
(19)
|
Pool
Insurance Proceeds
|
________________
|
(19)
|
|||||
|
|
(20)
|
Proceeds
from Sale of Acquired Property
|
________________
|
(20)
|
|||||
|
|
(21)
|
Other
(itemize)
|
________________
|
(21)
|
|||||
|
|
_________________________________________
|
|
_________________
|
|
|||||
|
|
_________________________________________
|
|
_________________
|
|
|||||
|
|
Total
Credits
|
$________________
|
(22)
|
||||||
|
Total
Realized Loss (or Amount of Gain)
|
$________________
|
(23)
|
|||||||
Escrow
Disbursement Detail
|
Type
(Tax
/Ins.)
|
Date
Paid
|
Period
of Coverage
|
Total
Paid
|
Base
Amount
|
Penalties
|
Interest
|
SCHEDULE
5
STANDARD
FILE LAYOUT- MASTER SERVICING
|
Standard
File Layout - Master Servicing
|
||||
|
Column
Name
|
Description
|
Decimal
|
Format
Comment
|
Max
Size
|
|
SER_INVESTOR_NBR
|
A
value assigned by the Servicer to define a group of loans.
|
|
Text
up to 10 digits
|
20
|
|
LOAN_NBR
|
A
unique identifier assigned to each loan by the investor.
|
|
Text
up to 10 digits
|
10
|
|
SERVICER_LOAN_NBR
|
A
unique number assigned to a loan by the Servicer. This may be different
than the LOAN_NBR.
|
|
Text
up to 10 digits
|
10
|
|
BORROWER_NAME
|
The
borrower name as received in the file. It is not separated by first
and
last name.
|
|
Maximum
length of 30 (Last, First)
|
30
|
|
SCHED_PAY_AMT
|
Scheduled
monthly principal and scheduled interest payment that a borrower
is
expected to pay, P&I constant.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
NOTE_INT_RATE
|
The
loan interest rate as reported by the Servicer.
|
4
|
Max
length of 6
|
6
|
|
NET_INT_RATE
|
The
loan gross interest rate less the service fee rate as reported
by the
Servicer.
|
4
|
Max
length of 6
|
6
|
|
SERV_FEE_RATE
|
The
servicer's fee rate for a loan as reported by the Servicer.
|
4
|
Max
length of 6
|
6
|
|
SERV_FEE_AMT
|
The
servicer's fee amount for a loan as reported by the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
NEW_PAY_AMT
|
The
new loan payment amount as reported by the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
NEW_LOAN_RATE
|
The
new loan rate as reported by the Servicer.
|
4
|
Max
length of 6
|
6
|
|
ARM_INDEX_RATE
|
The
index the Servicer is using to calculate a forecasted
rate.
|
4
|
Max
length of 6
|
6
|
|
ACTL_BEG_PRIN_BAL
|
The
borrower's actual principal balance at the beginning of the processing
cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
ACTL_END_PRIN_BAL
|
The
borrower's actual principal balance at the end of the processing
cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
BORR_NEXT_PAY_DUE_DATE
|
The
date at the end of processing cycle that the borrower's next payment
is
due to the Servicer, as reported by Servicer.
|
|
MM/DD/YYYY
|
10
|
|
SERV_CURT_AMT_1
|
The
first curtailment amount to be applied.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT_DATE_1
|
The
curtailment date associated with the first curtailment amount.
|
|
MM/DD/YYYY
|
10
|
|
CURT_ADJ_
AMT_1
|
The
curtailment interest on the first curtailment amount, if
applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT_AMT_2
|
The
second curtailment amount to be applied.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT_DATE_2
|
The
curtailment date associated with the second curtailment
amount.
|
|
MM/DD/YYYY
|
10
|
|
CURT_ADJ_
AMT_2
|
The
curtailment interest on the second curtailment amount, if
applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT_AMT_3
|
The
third curtailment amount to be applied.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT_DATE_3
|
The
curtailment date associated with the third curtailment
amount.
|
|
MM/DD/YYYY
|
10
|
|
CURT_ADJ_AMT_3
|
The
curtailment interest on the third curtailment amount, if
applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
PIF_AMT
|
The
loan "paid in full" amount as reported by the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
PIF_DATE
|
The
paid in full date as reported by the Servicer.
|
|
MM/DD/YYYY
|
10
|
|
ACTION_CODE
|
The
standard FNMA numeric code used to indicate the default/delinquent
status
of a particular loan.
|
Action
Code Key: 15=Bankruptcy, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇, , ▇▇▇▇▇▇, 63=Substitution,
65=Repurchase,70=REO
|
2 |
|
|
INT_ADJ_AMT
|
The
amount of the interest adjustment as reported by the
Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SOLDIER_SAILOR_ADJ_AMT
|
The
Soldier and Sailor Adjustment amount, if applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
NON_ADV_LOAN_AMT
|
The
Non Recoverable Loan Amount, if applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
LOAN_LOSS_AMT
|
The
amount the Servicer is passing as a loss, if applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SCHED_BEG_PRIN_BAL
|
The
scheduled outstanding principal amount due at the beginning of
the cycle
date to be passed through to investors.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SCHED_END_PRIN_BAL
|
The
scheduled principal balance due to investors at the end of a processing
cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SCHED_PRIN_AMT
|
The
scheduled principal amount as reported by the Servicer for the
current
cycle -- only applicable for Scheduled/Scheduled Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SCHED_NET_INT
|
The
scheduled gross interest amount less the service fee amount for
the
current cycle as reported by the Servicer -- only applicable for
Scheduled/Scheduled Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
ACTL_PRIN_AMT
|
The
actual principal amount collected by the Servicer for the current
reporting cycle -- only applicable for Actual/Actual
Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
ACTL_NET_INT
|
The
actual gross interest amount less the service fee amount for the
current
reporting cycle as reported by the Servicer -- only applicable
for
Actual/Actual Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
PREPAY_PENALTY_
AMT
|
The
penalty amount received when a borrower prepays on his loan as
reported by
the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
PREPAY_PENALTY_
WAIVED
|
The
prepayment penalty amount for the loan waived by the
servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
|
|
|
|
|
|
MOD_DATE
|
The
Effective Payment Date of the Modification for the loan.
|
|
MM/DD/YYYY
|
10
|
|
MOD_TYPE
|
The
Modification Type.
|
|
Varchar
- value can be alpha or numeric
|
30
|
|
DELINQ_P&I_ADVANCE_AMT
|
The
current outstanding principal and interest advances made by
Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
SCHEDULE
6
DATA
REQUIREMENTS OF SERVICING ADVANCES INCURRED PRIOR TO CUT-OFF DATE
|
[LOAN
NUMBER]
|
[PRE-CUT-OFF
DATE ADVANCE AMOUNT]
|
[PROVIDED
UPON REQUEST]