ACE SECURITIES CORP. Depositor OCWEN LOAN SERVICING, LLC a Servicer WELLS FARGO BANK, N.A. a Servicer WELLS FARGO BANK, N.A. Master Servicer and Securities Administrator HSBC BANK USA, NATIONAL ASSOCIATION Trustee POOLING AND SERVICING AGREEMENT Dated...
ACE
SECURITIES CORP.
Depositor
OCWEN
LOAN SERVICING, LLC
a Servicer
▇▇▇▇▇
FARGO BANK, N.A.
a
Servicer
▇▇▇▇▇
FARGO BANK, N.A.
Master
Servicer and Securities Administrator
HSBC
BANK
USA, NATIONAL ASSOCIATION
Trustee
Dated
as
of February 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; Acceptance of 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.
|
Obligations
of the Servicers in Respect of Mortgage Rates and Monthly Payments.
|
|
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 and Interim 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.
|
Maintenance
of Primary Mortgage Insurance Policies.
|
|
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.
|
|
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 or Trustee 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, Custodians 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.
|
|
SECTION
12.12.
|
Swap
Provider as a Third Party Beneficiary.
|
|
SECTION
12.13.
|
Indemnification.
|
ARTICLE
XIII CERTAIN
MATTERS REGARDING THE INSURER
|
SECTION
13.01.
|
Exercise
of Rights of Holder of the Insured Certificates.
|
|
SECTION
13.02.
|
Trustee
and Securities Administrator to Act Solely with Consent of Insurer.
|
|
SECTION
13.03.
|
Trust
Fund and Accounts Held for Benefit of Insurer.
|
|
SECTION
13.04.
|
Claims
Upon the Policy; Policy Payments Account.
|
|
SECTION
13.05.
|
Effect
of Payments by Insurer; Subrogation.
|
|
SECTION
13.06.
|
Notices
to Insurer.
|
|
SECTION
13.07.
|
Third
Party Beneficiary.
|
|
SECTION
13.08.
|
Ratings
Assigned Without Regard to Policy.
|
|
SECTION
13.09.
|
Trustee
to Hold the Policy.
|
|
SECTION
13.10.
|
Termination
of Certain of Insurer’s Rights.
|
Exhibits
|
Exhibit
A-1
|
Form
of Class A Certificate
|
|
Exhibit
A-2
|
Form
of Class M Certificate
|
|
Exhibit
A-3
|
Form
of Class CE-1 Certificate and Class CE-2 Certificate
|
|
Exhibit
A-4
|
Form
of Class P Certificate
|
|
Exhibit
A-5
|
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 P Certificates,
Class CE
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 P Certificates,
Class CE
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 Back-Up Certification
|
|
Exhibit
D
|
Form
of Power of Attorney
|
|
Exhibit
E
|
Servicing
Criteria
|
|
Exhibit
F
|
Mortgage
Loan Purchase Agreement
|
|
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 - Master Servicing
|
|
Schedule
6
|
Data
Requirements of Servicing Advances Incurred Prior to Cut-off
Date
|
|
Schedule
7
|
Mortgage
Loans relating to Ocwen Servicing Fee Rate for first Distribution
Date
|
This
Pooling and Servicing Agreement, is dated and effective as of February 1, 2006,
among ACE SECURITIES CORP., as Depositor, OCWEN LOAN SERVICING, LLC, as a
Servicer, ▇▇▇▇▇ FARGO BANK, N.A., as a Servicer, ▇▇▇▇▇ FARGO BANK, N.A., 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 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)
|
$
|
569,063.10
|
February
25, 2036
|
||||
|
I-1-A
|
Variable(2)
|
$
|
7,959,242.39
|
February
25, 2036
|
||||
|
I-1-B
|
Variable(2)
|
$
|
7,959,242.39
|
February
25, 2036
|
||||
|
I-2-A
|
Variable(2)
|
$
|
9,283,543.14
|
February
25, 2036
|
||||
|
I-2-B
|
Variable(2)
|
$
|
9,283,543.14
|
February
25, 2036
|
||||
|
I-3-A
|
Variable(2)
|
$
|
10,580,377.64
|
February
25, 2036
|
||||
|
I-3-B
|
Variable(2)
|
$
|
10,580,377.64
|
February
25, 2036
|
||||
|
I-4-A
|
Variable(2)
|
$
|
11,838,936.33
|
February
25, 2036
|
||||
|
I-4-B
|
Variable(2)
|
$
|
11,838,936.33
|
February
25, 2036
|
||||
|
I-5-A
|
Variable(2)
|
$
|
13,047,932.78
|
February
25, 2036
|
||||
|
I-5-B
|
Variable(2)
|
$
|
13,047,932.78
|
February
25, 2036
|
||||
|
I-6-A
|
Variable(2)
|
$
|
14,192,417.54
|
February
25, 2036
|
||||
|
I-6-B
|
Variable(2)
|
$
|
14,192,417.54
|
February
25, 2036
|
||||
|
I-7-A
|
Variable(2)
|
$
|
15,243,747.36
|
February
25, 2036
|
||||
|
I-7-B
|
Variable(2)
|
$
|
15,243,747.36
|
February
25, 2036
|
||||
|
I-8-A
|
Variable(2)
|
$
|
16,132,354.48
|
February
25, 2036
|
||||
|
I-8-B
|
Variable(2)
|
$
|
16,132,354.48
|
February
25, 2036
|
||||
|
I-9-A
|
Variable(2)
|
$
|
16,603,869.87
|
February
25, 2036
|
||||
|
I-9-B
|
Variable(2)
|
$
|
16,603,869.87
|
February
25, 2036
|
||||
|
I-10-A
|
Variable(2)
|
$
|
15,960,941.68
|
February
25, 2036
|
||||
|
I-10-B
|
Variable(2)
|
$
|
15,960,941.68
|
February
25, 2036
|
||||
|
I-11-A
|
Variable(2)
|
$
|
15,293,436.76
|
February
25, 2036
|
||||
|
I-11-B
|
Variable(2)
|
$
|
15,293,436.76
|
February
25, 2036
|
||||
|
I-12-A
|
Variable(2)
|
$
|
14,657,205.15
|
February
25, 2036
|
||||
|
I-12-B
|
Variable(2)
|
$
|
14,657,205.15
|
February
25, 2036
|
||||
|
I-13-A
|
Variable(2)
|
$
|
14,043,747.51
|
February
25, 2036
|
||||
|
I-13-B
|
Variable(2)
|
$
|
14,043,747.51
|
February
25, 2036
|
||||
|
I-14-A
|
Variable(2)
|
$
|
13,456,091.10
|
February
25, 2036
|
||||
|
I-14-B
|
Variable(2)
|
$
|
13,456,091.10
|
February
25, 2036
|
||||
|
I-15-A
|
Variable(2)
|
$
|
12,893,135.84
|
February
25, 2036
|
||||
|
I-15-B
|
Variable(2)
|
$
|
12,893,135.84
|
February
25, 2036
|
||||
|
I-16-A
|
Variable(2)
|
$
|
12,359,531.42
|
February
25, 2036
|
||||
|
I-16-B
|
Variable(2)
|
$
|
12,359,531.42
|
February
25, 2036
|
||||
|
I-17-A
|
Variable(2)
|
$
|
11,920,224.78
|
February
25, 2036
|
||||
|
I-17-B
|
Variable(2)
|
$
|
11,920,224.78
|
February
25, 2036
|
||||
|
I-18-A
|
Variable(2)
|
$
|
11,821,692.15
|
February
25, 2036
|
||||
|
I-18-B
|
Variable(2)
|
$
|
11,821,692.15
|
February
25, 2036
|
||||
|
I-19-A
|
Variable(2)
|
$
|
12,526,942.28
|
February
25, 2036
|
||||
|
I-19-B
|
Variable(2)
|
$
|
12,526,942.28
|
February
25, 2036
|
||||
|
I-20-A
|
Variable(2)
|
$
|
18,092,745.55
|
February
25, 2036
|
||||
|
I-20-B
|
Variable(2)
|
$
|
18,092,745.55
|
February
25, 2036
|
||||
|
I-21-A
|
Variable(2)
|
$
|
34,652,622.22
|
February
25, 2036
|
||||
|
I-21-B
|
Variable(2)
|
$
|
34,652,622.22
|
February
25, 2036
|
||||
|
I-22-A
|
Variable(2)
|
$
|
29,134,229.51
|
February
25, 2036
|
||||
|
I-22-B
|
Variable(2)
|
$
|
29,134,229.51
|
February
25, 2036
|
||||
|
I-23-A
|
Variable(2)
|
$
|
23,649,203.13
|
February
25, 2036
|
||||
|
I-23-B
|
Variable(2)
|
$
|
23,649,203.13
|
February
25, 2036
|
||||
|
I-24-A
|
Variable(2)
|
$
|
16,888,199.03
|
February
25, 2036
|
||||
|
I-24-B
|
Variable(2)
|
$
|
16,888,199.03
|
February
25, 2036
|
||||
|
I-25-A
|
Variable(2)
|
$
|
6,000,424.89
|
February
25, 2036
|
||||
|
I-25-B
|
Variable(2)
|
$
|
6,000,424.89
|
February
25, 2036
|
||||
|
I-26-A
|
Variable(2)
|
$
|
5,428,369.42
|
February
25, 2036
|
||||
|
I-26-B
|
Variable(2)
|
$
|
5,428,369.42
|
February
25, 2036
|
||||
|
I-27-A
|
Variable(2)
|
$
|
5,177,085.94
|
February
25, 2036
|
||||
|
I-27-B
|
Variable(2)
|
$
|
5,177,085.94
|
February
25, 2036
|
||||
|
I-28-A
|
Variable(2)
|
$
|
4,934,058.28
|
February
25, 2036
|
||||
|
I-28-B
|
Variable(2)
|
$
|
4,934,058.28
|
February
25, 2036
|
||||
|
I-29-A
|
Variable(2)
|
$
|
4,706,186.13
|
February
25, 2036
|
||||
|
I-29-B
|
Variable(2)
|
$
|
4,706,186.13
|
February
25, 2036
|
||||
|
I-30-A
|
Variable(2)
|
$
|
4,489,031.91
|
February
25, 2036
|
||||
|
I-30-B
|
Variable(2)
|
$
|
4,489,031.91
|
February
25, 2036
|
||||
|
I-31-A
|
Variable(2)
|
$
|
4,281,963.76
|
February
25, 2036
|
||||
|
I-31-B
|
Variable(2)
|
$
|
4,281,963.76
|
February
25, 2036
|
||||
|
I-32-A
|
Variable(2)
|
$
|
4,084,553.12
|
February
25, 2036
|
||||
|
I-32-B
|
Variable(2)
|
$
|
4,084,553.12
|
February
25, 2036
|
||||
|
I-33-A
|
Variable(2)
|
$
|
3,896,397.90
|
February
25, 2036
|
||||
|
I-33-B
|
Variable(2)
|
$
|
3,896,397.90
|
February
25, 2036
|
||||
|
I-34-A
|
Variable(2)
|
$
|
3,716,912.56
|
February
25, 2036
|
||||
|
I-34-B
|
Variable(2)
|
$
|
3,716,912.56
|
February
25, 2036
|
||||
|
I-35-A
|
Variable(2)
|
$
|
3,545,935.59
|
February
25, 2036
|
||||
|
I-35-B
|
Variable(2)
|
$
|
3,545,935.59
|
February
25, 2036
|
||||
|
I-36-A
|
Variable(2)
|
$
|
3,382,944.83
|
February
25, 2036
|
||||
|
I-36-B
|
Variable(2)
|
$
|
3,382,944.83
|
February
25, 2036
|
||||
|
I-37-A
|
Variable(2)
|
$
|
3,227,531.72
|
February
25, 2036
|
||||
|
I-37-B
|
Variable(2)
|
$
|
3,227,531.72
|
February
25, 2036
|
||||
|
I-38-A
|
Variable(2)
|
$
|
3,079,352.27
|
February
25, 2036
|
||||
|
I-38-B
|
Variable(2)
|
$
|
3,079,352.27
|
February
25, 2036
|
||||
|
I-39-A
|
Variable(2)
|
$
|
2,938,076.42
|
February
25, 2036
|
||||
|
I-39-B
|
Variable(2)
|
$
|
2,938,076.42
|
February
25, 2036
|
||||
|
I-40-A
|
Variable(2)
|
$
|
2,803,338.40
|
February
25, 2036
|
||||
|
I-40-B
|
Variable(2)
|
$
|
2,803,338.40
|
February
25, 2036
|
||||
|
I-41-A
|
Variable(2)
|
$
|
2,674,898.99
|
February
25, 2036
|
||||
|
I-41-B
|
Variable(2)
|
$
|
2,674,898.99
|
February
25, 2036
|
||||
|
I-42-A
|
Variable(2)
|
$
|
2,552,429.91
|
February
25, 2036
|
||||
|
I-42-B
|
Variable(2)
|
$
|
2,552,429.91
|
February
25, 2036
|
||||
|
I-43-A
|
Variable(2)
|
$
|
2,435,644.07
|
February
25, 2036
|
||||
|
I-43-B
|
Variable(2)
|
$
|
2,435,644.07
|
February
25, 2036
|
||||
|
I-44-A
|
Variable(2)
|
$
|
51,711,037.43
|
February
25, 2036
|
||||
|
I-44-B
|
Variable(2)
|
$
|
51,711,037.43
|
February
25, 2036
|
||||
|
A-II
|
Variable(2)
|
$
|
391,494.75
|
February
25, 2036
|
||||
|
II-1-A
|
Variable(2)
|
$
|
5,475,669.73
|
February
25, 2036
|
||||
|
II-1-B
|
Variable(2)
|
$
|
5,475,669.73
|
February
25, 2036
|
||||
|
II-2-A
|
Variable(2)
|
$
|
6,386,740.56
|
February
25, 2036
|
||||
|
II-2-B
|
Variable(2)
|
$
|
6,386,740.56
|
February
25, 2036
|
||||
|
II-3-A
|
Variable(2)
|
$
|
7,278,915.61
|
February
25, 2036
|
||||
|
II-3-B
|
Variable(2)
|
$
|
7,278,915.61
|
February
25, 2036
|
||||
|
II-4-A
|
Variable(2)
|
$
|
8,144,758.28
|
February
25, 2036
|
||||
|
II-4-B
|
Variable(2)
|
$
|
8,144,758.28
|
February
25, 2036
|
||||
|
II-5-A
|
Variable(2)
|
$
|
8,976,503.94
|
February
25, 2036
|
||||
|
II-5-B
|
Variable(2)
|
$
|
8,976,503.94
|
February
25, 2036
|
||||
|
II-6-A
|
Variable(2)
|
$
|
9,763,867.89
|
February
25, 2036
|
||||
|
II-6-B
|
Variable(2)
|
$
|
9,763,867.89
|
February
25, 2036
|
||||
|
II-7-A
|
Variable(2)
|
$
|
10,487,144.63
|
February
25, 2036
|
||||
|
II-7-B
|
Variable(2)
|
$
|
10,487,144.63
|
February
25, 2036
|
||||
|
II-8-A
|
Variable(2)
|
$
|
11,098,474.06
|
February
25, 2036
|
||||
|
II-8-B
|
Variable(2)
|
$
|
11,098,474.06
|
February
25, 2036
|
||||
|
II-9-A
|
Variable(2)
|
$
|
11,422,859.52
|
February
25, 2036
|
||||
|
II-9-B
|
Variable(2)
|
$
|
11,422,859.52
|
February
25, 2036
|
||||
|
II-10-A
|
Variable(2)
|
$
|
10,980,548.28
|
February
25, 2036
|
||||
|
II-10-B
|
Variable(2)
|
$
|
10,980,548.28
|
February
25, 2036
|
||||
|
II-11-A
|
Variable(2)
|
$
|
10,521,329.13
|
February
25, 2036
|
||||
|
II-11-B
|
Variable(2)
|
$
|
10,521,329.13
|
February
25, 2036
|
||||
|
II-12-A
|
Variable(2)
|
$
|
10,083,624.89
|
February
25, 2036
|
||||
|
II-12-B
|
Variable(2)
|
$
|
10,083,624.89
|
February
25, 2036
|
||||
|
II-13-A
|
Variable(2)
|
$
|
9,661,588.31
|
February
25, 2036
|
||||
|
II-13-B
|
Variable(2)
|
$
|
9,661,588.31
|
February
25, 2036
|
||||
|
II-14-A
|
Variable(2)
|
$
|
9,257,302.04
|
February
25, 2036
|
||||
|
II-14-B
|
Variable(2)
|
$
|
9,257,302.04
|
February
25, 2036
|
||||
|
II-15-A
|
Variable(2)
|
$
|
8,870,009.26
|
February
25, 2036
|
||||
|
II-15-B
|
Variable(2)
|
$
|
8,870,009.26
|
February
25, 2036
|
||||
|
II-16-A
|
Variable(2)
|
$
|
8,502,908.80
|
February
25, 2036
|
||||
|
II-16-B
|
Variable(2)
|
$
|
8,502,908.80
|
February
25, 2036
|
||||
|
II-17-A
|
Variable(2)
|
$
|
8,200,681.79
|
February
25, 2036
|
||||
|
II-17-B
|
Variable(2)
|
$
|
8,200,681.79
|
February
25, 2036
|
||||
|
II-18-A
|
Variable(2)
|
$
|
8,132,894.91
|
February
25, 2036
|
||||
|
II-18-B
|
Variable(2)
|
$
|
8,132,894.91
|
February
25, 2036
|
||||
|
II-19-A
|
Variable(2)
|
$
|
8,618,081.39
|
February
25, 2036
|
||||
|
II-19-B
|
Variable(2)
|
$
|
8,618,081.39
|
February
25, 2036
|
||||
|
II-20-A
|
Variable(2)
|
$
|
12,447,151.93
|
February
25, 2036
|
||||
|
II-20-B
|
Variable(2)
|
$
|
12,447,151.93
|
February
25, 2036
|
||||
|
II-21-A
|
Variable(2)
|
$
|
23,839,745.73
|
February
25, 2036
|
||||
|
II-21-B
|
Variable(2)
|
$
|
23,839,745.73
|
February
25, 2036
|
||||
|
II-22-A
|
Variable(2)
|
$
|
20,043,291.94
|
February
25, 2036
|
||||
|
II-22-B
|
Variable(2)
|
$
|
20,043,291.94
|
February
25, 2036
|
||||
|
II-23-A
|
Variable(2)
|
$
|
16,269,792.96
|
February
25, 2036
|
||||
|
II-23-B
|
Variable(2)
|
$
|
16,269,792.96
|
February
25, 2036
|
||||
|
II-24-A
|
Variable(2)
|
$
|
11,618,467.66
|
February
25, 2036
|
||||
|
II-24-B
|
Variable(2)
|
$
|
11,618,467.66
|
February
25, 2036
|
||||
|
II-25-A
|
Variable(2)
|
$
|
4,128,074.43
|
February
25, 2036
|
||||
|
II-25-B
|
Variable(2)
|
$
|
4,128,074.43
|
February
25, 2036
|
||||
|
II-26-A
|
Variable(2)
|
$
|
3,734,521.04
|
February
25, 2036
|
||||
|
II-26-B
|
Variable(2)
|
$
|
3,734,521.04
|
February
25, 2036
|
||||
|
II-27-A
|
Variable(2)
|
$
|
3,561,647.13
|
February
25, 2036
|
||||
|
II-27-B
|
Variable(2)
|
$
|
3,561,647.13
|
February
25, 2036
|
||||
|
II-28-A
|
Variable(2)
|
$
|
3,394,452.93
|
February
25, 2036
|
||||
|
II-28-B
|
Variable(2)
|
$
|
3,394,452.93
|
February
25, 2036
|
||||
|
II-29-A
|
Variable(2)
|
$
|
3,237,685.16
|
February
25, 2036
|
||||
|
II-29-B
|
Variable(2)
|
$
|
3,237,685.16
|
February
25, 2036
|
||||
|
II-30-A
|
Variable(2)
|
$
|
3,088,290.94
|
February
25, 2036
|
||||
|
II-30-B
|
Variable(2)
|
$
|
3,088,290.94
|
February
25, 2036
|
||||
|
II-31-A
|
Variable(2)
|
$
|
2,945,835.57
|
February
25, 2036
|
||||
|
II-31-B
|
Variable(2)
|
$
|
2,945,835.57
|
February
25, 2036
|
||||
|
II-32-A
|
Variable(2)
|
$
|
2,810,024.22
|
February
25, 2036
|
||||
|
II-32-B
|
Variable(2)
|
$
|
2,810,024.22
|
February
25, 2036
|
||||
|
II-33-A
|
Variable(2)
|
$
|
2,680,580.26
|
February
25, 2036
|
||||
|
II-33-B
|
Variable(2)
|
$
|
2,680,580.26
|
February
25, 2036
|
||||
|
II-34-A
|
Variable(2)
|
$
|
2,557,100.87
|
February
25, 2036
|
||||
|
II-34-B
|
Variable(2)
|
$
|
2,557,100.87
|
February
25, 2036
|
||||
|
II-35-A
|
Variable(2)
|
$
|
2,439,474.92
|
February
25, 2036
|
||||
|
II-35-B
|
Variable(2)
|
$
|
2,439,474.92
|
February
25, 2036
|
||||
|
II-36-A
|
Variable(2)
|
$
|
2,327,343.20
|
February
25, 2036
|
||||
|
II-36-B
|
Variable(2)
|
$
|
2,327,343.20
|
February
25, 2036
|
||||
|
II-37-A
|
Variable(2)
|
$
|
2,220,424.62
|
February
25, 2036
|
||||
|
II-37-B
|
Variable(2)
|
$
|
2,220,424.62
|
February
25, 2036
|
||||
|
II-38-A
|
Variable(2)
|
$
|
2,118,482.54
|
February
25, 2036
|
||||
|
II-38-B
|
Variable(2)
|
$
|
2,118,482.54
|
February
25, 2036
|
||||
|
II-39-A
|
Variable(2)
|
$
|
2,021,289.89
|
February
25, 2036
|
||||
|
II-39-B
|
Variable(2)
|
$
|
2,021,289.89
|
February
25, 2036
|
||||
|
II-40-A
|
Variable(2)
|
$
|
1,928,595.02
|
February
25, 2036
|
||||
|
II-40-B
|
Variable(2)
|
$
|
1,928,595.02
|
February
25, 2036
|
||||
|
II-41-A
|
Variable(2)
|
$
|
1,840,233.37
|
February
25, 2036
|
||||
|
II-41-B
|
Variable(2)
|
$
|
1,840,233.37
|
February
25, 2036
|
||||
|
II-42-A
|
Variable(2)
|
$
|
1,755,979.09
|
February
25, 2036
|
||||
|
II-42-B
|
Variable(2)
|
$
|
1,755,979.09
|
February
25, 2036
|
||||
|
II-43-A
|
Variable(2)
|
$
|
1,675,634.67
|
February
25, 2036
|
||||
|
II-43-B
|
Variable(2)
|
$
|
1,675,634.67
|
February
25, 2036
|
||||
|
II-44-A
|
Variable(2)
|
$
|
35,575,315.94
|
February
25, 2036
|
||||
|
II-44-B
|
Variable(2)
|
$
|
35,575,315.94
|
February
25, 2036
|
||||
|
A-III
|
Variable(2)
|
$
|
489,425.54
|
February
25, 2036
|
||||
|
III-1-A
|
Variable(2)
|
$
|
6,845,385.88
|
February
25, 2036
|
||||
|
III-1-B
|
Variable(2)
|
$
|
6,845,385.88
|
February
25, 2036
|
||||
|
III-2-A
|
Variable(2)
|
$
|
7,984,357.30
|
February
25, 2036
|
||||
|
III-2-B
|
Variable(2)
|
$
|
7,984,357.30
|
February
25, 2036
|
||||
|
III-3-A
|
Variable(2)
|
$
|
9,099,706.25
|
February
25, 2036
|
||||
|
III-3-B
|
Variable(2)
|
$
|
9,099,706.25
|
February
25, 2036
|
||||
|
III-4-A
|
Variable(2)
|
$
|
10,182,135.89
|
February
25, 2036
|
||||
|
III-4-B
|
Variable(2)
|
$
|
10,182,135.89
|
February
25, 2036
|
||||
|
III-5-A
|
Variable(2)
|
$
|
11,221,939.28
|
February
25, 2036
|
||||
|
III-5-B
|
Variable(2)
|
$
|
11,221,939.28
|
February
25, 2036
|
||||
|
III-6-A
|
Variable(2)
|
$
|
12,206,259.07
|
February
25, 2036
|
||||
|
III-6-B
|
Variable(2)
|
$
|
12,206,259.07
|
February
25, 2036
|
||||
|
III-7-A
|
Variable(2)
|
$
|
13,110,460.50
|
February
25, 2036
|
||||
|
III-7-B
|
Variable(2)
|
$
|
13,110,460.50
|
February
25, 2036
|
||||
|
III-8-A
|
Variable(2)
|
$
|
13,874,711.46
|
February
25, 2036
|
||||
|
III-8-B
|
Variable(2)
|
$
|
13,874,711.46
|
February
25, 2036
|
||||
|
III-9-A
|
Variable(2)
|
$
|
14,280,240.61
|
February
25, 2036
|
||||
|
III-9-B
|
Variable(2)
|
$
|
14,280,240.61
|
February
25, 2036
|
||||
|
III-10-A
|
Variable(2)
|
$
|
13,727,287.03
|
February
25, 2036
|
||||
|
III-10-B
|
Variable(2)
|
$
|
13,727,287.03
|
February
25, 2036
|
||||
|
III-11-A
|
Variable(2)
|
$
|
13,153,196.11
|
February
25, 2036
|
||||
|
III-11-B
|
Variable(2)
|
$
|
13,153,196.11
|
February
25, 2036
|
||||
|
III-12-A
|
Variable(2)
|
$
|
12,606,001.96
|
February
25, 2036
|
||||
|
III-12-B
|
Variable(2)
|
$
|
12,606,001.96
|
February
25, 2036
|
||||
|
III-13-A
|
Variable(2)
|
$
|
12,078,394.68
|
February
25, 2036
|
||||
|
III-13-B
|
Variable(2)
|
$
|
12,078,394.68
|
February
25, 2036
|
||||
|
III-14-A
|
Variable(2)
|
$
|
11,572,977.87
|
February
25, 2036
|
||||
|
III-14-B
|
Variable(2)
|
$
|
11,572,977.87
|
February
25, 2036
|
||||
|
III-15-A
|
Variable(2)
|
$
|
11,088,805.40
|
February
25, 2036
|
||||
|
III-15-B
|
Variable(2)
|
$
|
11,088,805.40
|
February
25, 2036
|
||||
|
III-16-A
|
Variable(2)
|
$
|
10,629,876.28
|
February
25, 2036
|
||||
|
III-16-B
|
Variable(2)
|
$
|
10,629,876.28
|
February
25, 2036
|
||||
|
III-17-A
|
Variable(2)
|
$
|
10,252,048.43
|
February
25, 2036
|
||||
|
III-17-B
|
Variable(2)
|
$
|
10,252,048.43
|
February
25, 2036
|
||||
|
III-18-A
|
Variable(2)
|
$
|
10,167,304.95
|
February
25, 2036
|
||||
|
III-18-B
|
Variable(2)
|
$
|
10,167,304.95
|
February
25, 2036
|
||||
|
III-19-A
|
Variable(2)
|
$
|
10,773,858.82
|
February
25, 2036
|
||||
|
III-19-B
|
Variable(2)
|
$
|
10,773,858.82
|
February
25, 2036
|
||||
|
III-20-A
|
Variable(2)
|
$
|
15,560,755.52
|
February
25, 2036
|
||||
|
III-20-B
|
Variable(2)
|
$
|
15,560,755.52
|
February
25, 2036
|
||||
|
III-21-A
|
Variable(2)
|
$
|
29,803,159.56
|
February
25, 2036
|
||||
|
III-21-B
|
Variable(2)
|
$
|
29,803,159.56
|
February
25, 2036
|
||||
|
III-22-A
|
Variable(2)
|
$
|
25,057,038.55
|
February
25, 2036
|
||||
|
III-22-B
|
Variable(2)
|
$
|
25,057,038.55
|
February
25, 2036
|
||||
|
III-23-A
|
Variable(2)
|
$
|
20,339,614.41
|
February
25, 2036
|
||||
|
III-23-B
|
Variable(2)
|
$
|
20,339,614.41
|
February
25, 2036
|
||||
|
III-24-A
|
Variable(2)
|
$
|
14,524,779.31
|
February
25, 2036
|
||||
|
III-24-B
|
Variable(2)
|
$
|
14,524,779.31
|
February
25, 2036
|
||||
|
III-25-A
|
Variable(2)
|
$
|
5,160,695.18
|
February
25, 2036
|
||||
|
III-25-B
|
Variable(2)
|
$
|
5,160,695.18
|
February
25, 2036
|
||||
|
III-26-A
|
Variable(2)
|
$
|
4,668,696.04
|
February
25, 2036
|
||||
|
III-26-B
|
Variable(2)
|
$
|
4,668,696.04
|
February
25, 2036
|
||||
|
III-27-A
|
Variable(2)
|
$
|
4,452,578.43
|
February
25, 2036
|
||||
|
III-27-B
|
Variable(2)
|
$
|
4,452,578.43
|
February
25, 2036
|
||||
|
III-28-A
|
Variable(2)
|
$
|
4,243,561.29
|
February
25, 2036
|
||||
|
III-28-B
|
Variable(2)
|
$
|
4,243,561.29
|
February
25, 2036
|
||||
|
II-29-A
|
Variable(2)
|
$
|
4,047,578.71
|
February
25, 2036
|
||||
|
III-29-B
|
Variable(2)
|
$
|
4,047,578.71
|
February
25, 2036
|
||||
|
III-30-A
|
Variable(2)
|
$
|
3,860,814.15
|
February
25, 2036
|
||||
|
III-30-B
|
Variable(2)
|
$
|
3,860,814.15
|
February
25, 2036
|
||||
|
III-31-A
|
Variable(2)
|
$
|
3,682,724.16
|
February
25, 2036
|
||||
|
III-31-B
|
Variable(2)
|
$
|
3,682,724.16
|
February
25, 2036
|
||||
|
III-32-A
|
Variable(2)
|
$
|
3,512,940.16
|
February
25, 2036
|
||||
|
III-32-B
|
Variable(2)
|
$
|
3,512,940.16
|
February
25, 2036
|
||||
|
III-33-A
|
Variable(2)
|
$
|
3,351,116.33
|
February
25, 2036
|
||||
|
III-33-B
|
Variable(2)
|
$
|
3,351,116.33
|
February
25, 2036
|
||||
|
III-34-A
|
Variable(2)
|
$
|
3,196,749.08
|
February
25, 2036
|
||||
|
III-34-B
|
Variable(2)
|
$
|
3,196,749.08
|
February
25, 2036
|
||||
|
III-35-A
|
Variable(2)
|
$
|
3,049,699.49
|
February
25, 2036
|
||||
|
III-35-B
|
Variable(2)
|
$
|
3,049,699.49
|
February
25, 2036
|
||||
|
III-36-A
|
Variable(2)
|
$
|
2,909,518.47
|
February
25, 2036
|
||||
|
III-36-B
|
Variable(2)
|
$
|
2,909,518.47
|
February
25, 2036
|
||||
|
III-37-A
|
Variable(2)
|
$
|
2,775,854.66
|
February
25, 2036
|
||||
|
III-37-B
|
Variable(2)
|
$
|
2,775,854.66
|
February
25, 2036
|
||||
|
III-38-A
|
Variable(2)
|
$
|
2,648,412.19
|
February
25, 2036
|
||||
|
III-38-B
|
Variable(2)
|
$
|
2,648,412.19
|
February
25, 2036
|
||||
|
III-39-A
|
Variable(2)
|
$
|
2,526,907.19
|
February
25, 2036
|
||||
|
III-39-B
|
Variable(2)
|
$
|
2,526,907.19
|
February
25, 2036
|
||||
|
III-40-A
|
Variable(2)
|
$
|
2,411,025.09
|
February
25, 2036
|
||||
|
III-40-B
|
Variable(2)
|
$
|
2,411,025.09
|
February
25, 2036
|
||||
|
III-41-A
|
Variable(2)
|
$
|
2,300,560.14
|
February
25, 2036
|
||||
|
III-41-B
|
Variable(2)
|
$
|
2,300,560.14
|
February
25, 2036
|
||||
|
III-42-A
|
Variable(2)
|
$
|
2,195,230.00
|
February
25, 2036
|
||||
|
III-42-B
|
Variable(2)
|
$
|
2,195,230.00
|
February
25, 2036
|
||||
|
III-43-A
|
Variable(2)
|
$
|
2,094,787.76
|
February
25, 2036
|
||||
|
III-43-B
|
Variable(2)
|
$
|
2,094,787.76
|
February
25, 2036
|
||||
|
III-44-A
|
Variable(2)
|
$
|
44,474,334.14
|
February
25, 2036
|
||||
|
III-44-B
|
Variable(2)
|
$
|
44,474,334.14
|
February
25, 2036
|
||||
|
CE-2
|
Variable(2)
|
N/A(3)
|
February
25, 2036
|
|||||
|
P
|
Variable(2)
|
$
|
100.00
|
February
25, 2036
|
||||
__________________
| (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 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)
|
$
|
1,242,493,883.66
|
February
25, 2036
|
|
A-1A
|
Variable(2)
|
$
|
3,789,095.00
|
February
25, 2036
|
|
A-1B1
|
Variable(2)
|
$
|
2,085,410.00
|
February
25, 2036
|
|
A-1B2
|
Variable(2)
|
$
|
521,350.00
|
February
25, 2036
|
|
A-2A
|
Variable(2)
|
$
|
1,784,900.00
|
February
25, 2036
|
|
A-2B
|
Variable(2)
|
$
|
638,425.00
|
February
25, 2036
|
|
A-2C
|
Variable(2)
|
$
|
443,030.00
|
February
25, 2036
|
|
A-2D
|
Variable(2)
|
$
|
392,450.00
|
February
25, 2036
|
|
M-1
|
Variable(2)
|
$
|
507,140.00
|
February
25, 2036
|
|
M-2
|
Variable(2)
|
$
|
462,765.00
|
February
25, 2036
|
|
M-3
|
Variable(2)
|
$
|
285,265.00
|
February
25, 2036
|
|
M-4
|
Variable(2)
|
$
|
240,890.00
|
February
25, 2036
|
|
M-5
|
Variable(2)
|
$
|
228,215.00
|
February
25, 2036
|
|
M-6
|
Variable(2)
|
$
|
209,195.00
|
February
25, 2036
|
|
M-7
|
Variable(2)
|
$
|
202,855.00
|
February
25, 2036
|
|
M-8
|
Variable(2)
|
$
|
183,840.00
|
February
25, 2036
|
|
M-9
|
Variable(2)
|
$
|
133,125.00
|
February
25, 2036
|
|
M-10
|
Variable(2)
|
$
|
158,480.00
|
February
25, 2036
|
|
ZZ
|
Variable(2)
|
$
|
13,090,588.03
|
February
25, 2036
|
|
P
|
Variable(2)
|
$
|
100.00
|
February
25, 2036
|
|
IO
|
Variable(2)
|
$
|
(3)
|
February
25, 2036
|
|
IA-SUB
|
Variable(2)
|
$
|
23,734.71
|
February
25, 2036
|
|
IA-GRP
|
Variable(2)
|
$
|
99,516.61
|
February
25, 2036
|
|
IB-SUB
|
Variable(2)
|
$
|
16,328.62
|
February
25, 2036
|
|
IB-GRP
|
Variable(2)
|
$
|
68,463.82
|
February
25, 2036
|
|
II-SUB
|
Variable(2)
|
$
|
20,413.66
|
February
25, 2036
|
|
II-GRP
|
Variable(2)
|
$
|
85,589.76
|
February
25, 2036
|
|
XX
|
Variable(2)
|
$
|
1,267,536,854.51
|
February
25, 2036
|
|
CE-2
|
(5)
|
N/A(4)
|
February
25, 2036
|
___________________________
|
(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 Uncertificated 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 Notional Amount of REMIC I Regular Interest
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 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-1A
|
Variable(2)
|
|
$
|
757,819,000.00
|
February
25, 2036
|
|||||
|
Class
A-1B1
|
Variable(2)
|
|
$
|
417,082,000.00
|
February
25, 2036
|
|||||
|
Class
A-1B2
|
Variable(2)
|
|
$
|
104,270,000.00
|
February
25, 2036
|
|||||
|
Class
A-2A
|
Variable(2)
|
|
$
|
356,980,000.00
|
February
25, 2036
|
|||||
|
Class
A-2B
|
Variable(2)
|
|
$
|
127,685,000.00
|
February
25, 2036
|
|||||
|
Class
A-2C
|
Variable(2)
|
|
$
|
88,606,000.00
|
February
25, 2036
|
|||||
|
Class
A-2D
|
Variable(2)
|
|
$
|
78,490,000.00
|
February
25, 2036
|
|||||
|
Class
M-1
|
Variable(2)
|
|
$
|
101,428,000.00
|
February
25, 2036
|
|||||
|
Class
M-2
|
Variable(2)
|
|
$
|
92,553,000.00
|
February
25, 2036
|
|||||
|
Class
M-3
|
Variable(2)
|
|
$
|
57,053,000.00
|
February
25, 2036
|
|||||
|
Class
M-4
|
Variable(2)
|
|
$
|
48,178,000.00
|
February
25, 2036
|
|||||
|
Class
M-5
|
Variable(2)
|
|
$
|
45,643,000.00
|
February
25, 2036
|
|||||
|
Class
M-6
|
Variable(2)
|
|
$
|
41,839,000.00
|
February
25, 2036
|
|||||
|
Class
M-7
|
Variable(2)
|
|
$
|
40,571,000.00
|
February
25, 2036
|
|||||
|
Class
M-8
|
Variable(2)
|
|
$
|
36,768,000.00
|
February
25, 2036
|
|||||
|
Class
M-9
|
Variable(2)
|
|
$
|
26,625,000.00
|
February
25, 2036
|
|||||
|
Class
M-10
|
Variable(2)
|
|
$
|
31,696,000.00
|
February
25, 2036
|
|||||
|
Class
P
|
N/A(3)
|
|
$
|
100.00
|
February
25, 2036
|
|||||
|
Class
CE-1
|
N/A(4)
|
|
$
|
82,415,803.39
|
February
25, 2036
|
|||||
|
Class
CE-2
|
N/A(5)
|
|
N/A(6)
|
|
September
2035
|
|||||
|
Class
IO Interest
|
N/A(7)
|
|
(7
|
)
|
February
25, 2036
|
|||||
_________________
| (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
$2,535,701,903.39. As of the Cut-off Date, the Group IA Mortgage Loans had
an
aggregate Scheduled Principal Balance equal to $995,166,149.46, the Group IB
Mortgage Loans had an aggregate Scheduled Principal Balance equal to
$684,638,172.79 and the Group II Mortgage Loans had an aggregate Scheduled
Principal Balance equal to $855,897,581.14.
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
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 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 and
the
Mezzanine 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 Class A Certificates and the Mezzanine
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 Class CE-1 Certificates 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 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 or pursuant
to the Servicing 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
Disclosure Notification”: Has the meaning set forth in Section 5.06(a)(ii).
“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 a Servicer that Services any of the Mortgage
Loans and each Person who is not an affiliate of a Servicer that Services the
Mortgage Loans. For clarification purposes, the Master Servicer and the
Securities Administrator are Additional Servicers.
“Adjustable
Rate Mortgage Loan”: Each of the Mortgage Loans identified in the Mortgage Loan
Schedule as having a Mortgage Rate that is subject to adjustment.
“Adjustment
Date”: With respect to each Adjustable Rate Mortgage Loan, the first day of the
month in which the Mortgage Rate of an Adjustable Rate Mortgage Loan changes
pursuant to the related Mortgage Note. The first Adjustment Date following
the
Cut-off Date as to each Adjustable Rate Mortgage Loan is set forth in the
Mortgage Loan Schedule.
“Administration
Fees: The sum of (i) the Servicing Fees and (ii) the Credit Risk Management
Fee.
“Administration
Fee Rate”: The sum of (i) the Servicing Fee Rate and (ii) 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 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 such 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.
“Assignment
Agreements”: The Fremont Assignment Agreement, the GreenPoint Assignment
Agreement and the New Century Assignment Agreement.
“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 Custodial
Accounts, 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 or by the
Interim Servicers pursuant to the Interim Servicing Agreements, (c) the
aggregate of any P&I Advances for such Distribution Date made by the
Servicers pursuant to Section 5.03 of this Agreement or by the Interim
Servicers pursuant to the Interim Servicing Agreements and (d) the aggregate
of
any P&I Advances made by a successor Servicer (including the Master Servicer
or the Trustee, as applicable) for such Distribution Date pursuant to
Section 8.02 of this Agreement or pursuant to the Interim Servicing
Agreements, 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
or reimbursable or payable to the Interim Servicers under the Interim Servicing
Agreements, (v) the Credit Risk Management Fee, (vi) amounts deposited in a
Custodial Account, Collection Account or the Distribution Account in error,
(vii) the amount of any Prepayment Charges collected by the Servicers or the
Interim Servicers in connection with the Principal Prepayment of any of the
Mortgage Loans and (viii) amounts reimbursable to a successor Servicer
(including the Master Servicer or the Trustee, as applicable) pursuant to
Section 8.02 of this Agreement or pursuant to the Interim Servicing
Agreements.
“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 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-HE1, Class A-1A, Class A-1B1, Class A-1B2, Class A-2A, Class A-2B, Class
A-2C, Class A-2D, Class M-1, 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 M-10, 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-1A Certificates and, for purposes of the definition
of
“Marker Rate”, REMIC II Regular Interest A-1A, 0.20% in the case of each
Distribution Date through and including the Optional Termination Date and 0.40%
in the case of each Distribution Date thereafter.
With
respect to the Class A-1B1 Certificates and, for purposes of the definition
of
“Marker Rate”, REMIC II Regular Interest A-1B1, 0.19% in the case of each
Distribution Date through and including the Optional Termination Date and 0.38%
in the case of each Distribution Date thereafter.
With
respect to the Class A-1B2 Certificates and, for purposes of the definition
of
“Marker Rate”, REMIC II Regular Interest A-1B2, 0.19% in the case of each
Distribution Date through and including the Optional Termination Date and 0.38%
in the case of each Distribution Date thereafter.
With
respect to the Class A-2A Certificates and, for purposes of the definition
of
“Marker Rate”, REMIC II Regular Interest A-2A, 0.08% in the case of each
Distribution Date through and including the Optional Termination Date and 0.16%
in the case of each Distribution Date thereafter.
With
respect to the Class A-2B Certificates and, for purposes of the definition
of
“Marker Rate”, REMIC II Regular Interest A-2B, 0.13% in the case of each
Distribution Date through and including the Optional Termination Date and 0.26%
in the case of each Distribution Date thereafter.
With
respect to the Class A-2C Certificates and, for purposes of the definition
of
“Marker Rate”, REMIC II Regular Interest A-2C, 0.19% in the case of each
Distribution Date through and including the Optional Termination Date and 0.38%
in the case of each Distribution Date thereafter.
With
respect to the Class A-2D Certificates and, for purposes of the definition
of
“Marker Rate”, REMIC II Regular Interest A-2D, 0.30% in the case of each
Distribution Date through and including the Optional Termination Date and 0.60%
in the case of each Distribution Date thereafter.
With
respect to the Class M-1 Certificates and, for purposes of the definition of
“Marker Rate”, REMIC II Regular Interest M-1, 0.39% in the case of each
Distribution Date through and including the Optional Termination Date and 0.585%
in the case of each Distribution Date thereafter.
With
respect to the Class M-2 Certificates and, for purposes of the definition of
“Marker Rate”, REMIC II Regular Interest M-2, 0.40% in the case of each
Distribution Date through and including the Optional Termination Date and 0.60%
in the case of each Distribution Date thereafter.
With
respect to the Class M-3 Certificates and, for purposes of the definition of
“Marker Rate”, REMIC II Regular Interest M-3, 0.42% in the case of each
Distribution Date through and including the Optional Termination Date and 0.63%
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, 0.530% in the case of each
Distribution Date through and including the Optional Termination Date and 0.795%
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, 0.56% in the case of each
Distribution Date through and including the Optional Termination Date and 0.84%
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, 0.670% 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-7 Certificates and, for purposes of the definition of
“Marker Rate”, REMIC II Regular Interest M-7, 1.33% in the case of each
Distribution Date through and including the Optional Termination Date and 1.83%
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, 1.57% in the case of each
Distribution Date through and including the Optional Termination Date and 2.07%
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, 2.45% in the case of each
Distribution Date through and including the Optional Termination Date and 2.95%
in the case of each Distribution Date thereafter.
With
respect to the Class M-10 Certificates and, for purposes of the definition
of
“Marker Rate”, REMIC II Regular Interest M-10, 3.00% in the case of each
Distribution Date through and including the Optional Termination Date and 3.50%
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 of this Agreement. 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 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 (i) all distributions allocable to
principal made thereon; provided, however, that solely for purposes of
determining the Insurer’s rights as subrogee to the Holders of the Insured
Certificates, the Certificate Principal Balance of any Insured Certificate
shall
be deemed not to be reduced by any principal amounts paid to the Holder thereof
from payments made by the Insurer under the Policy, unless such amounts have
been reimbursed to the Insurer pursuant to Section 5.01(c)(2), (3), (4), (6)
and
(7) and (ii) 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 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.
“Class”:
Collectively, all of the Certificates bearing the same class
designation.
“Class
A
Certificate”: Any Class A-1A, Class A-1B1, Class A-1B2, Class A-2A, Class A-2B,
Class A-2C or Class A-2D Certificate.
“Class
A
Principal Distribution Amount”: The Class A Principal Distribution Amount is an
amount equal to the sum of: (i) the Class A-1A Principal Distribution Amount,
(ii) the Class A-1B Principal Distribution Amount and (iii) the Class A-2
Principal Distribution Amount.
“Class
A-1A Allocation Percentage”: With respect to any Distribution Date is the
percentage equivalent of a fraction, the numerator of which is (x) the Group
IA
Principal Remittance Amount for such Distribution Date and the denominator
of
which is (y) the Principal Remittance Amount for such Distribution
Date.
“Class
A-1A Certificate”: Any one of the Class A-1A 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-1A 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-1A Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) 52.30% and (ii) the aggregate Stated Principal Balance of the
Group IA 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 Group IA 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 Group IA Mortgage Loans as of the Cut-off Date.
“Class
A-1B Allocation Percentage”: With respect to any Distribution Date is the
percentage equivalent of a fraction, the numerator of which is (x) the Group
IB
Principal Remittance Amount for such Distribution Date and the denominator
of
which is (y) the Principal Remittance Amount for such Distribution
Date.
“Class
A-1B 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 the Certificate Principal Balances of the Class A-1B1
Certificates and Class A-1B2 Certificates immediately prior to such Distribution
Date over (y) the lesser of (A) the product of (i) 52.30% and (ii) the aggregate
Stated Principal Balance of the Group IB 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 Group IB 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 Group IB Mortgage Loans as of the Cut-off
Date.
“Class
A-1B1 Certificate”: Any one of the Class A-1B1 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-1B2 Certificate”: Any one of the Class A-1B2 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-2 Allocation Percentage”: With respect to any Distribution Date is the
percentage equivalent of a fraction, the numerator of which is (x) the Group
II
Principal Remittance Amount for such Distribution Date and the denominator
of
which is (y) the Principal Remittance Amount for such Distribution
Date.
“Class
A-2 Certificate”: Any Class A-2A, Class A-2B, Class A-2C or Class A-2D
Certificate.
“Class
A-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 the Certificate Principal Balances of the Class A-2A,
Class A-2B, Class A-2C and Class A-2D Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i) 52.30% and
(ii)
the aggregate Stated Principal Balance of the Group II 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 Group II 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
A-2A Certificate”: Any one of the Class A-2A 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-2B Certificate”: Any one of the Class A-2B 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-2C Certificate”: Any one of the Class A-2C 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-2D Certificate”: Any one of the Class A-2D 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
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-3 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-3 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-1, 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 M-10 Certificates.
“Class
M-1 Certificate”: Any one of the Class M-1 Certificates executed and
authenticated by the Securities Administrator and delivered by the Trustee,
substantially in the form annexed hereto as Exhibit A-2 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 aggregate 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
Certificate Principal Balance of the Class M-1 Certificates immediately prior
to
such Distribution Date over (y) the lesser of (A) the product of (i) 60.30%
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
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-2 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 aggregate 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 Certificate
Principal Balance of the Class M-1 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) 67.60% 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-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-2 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 aggregate 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 Certificate
Principal Balance of the Class M-1 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) 72.10% 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-2 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 aggregate 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 Certificate
Principal Balance of the Class M-1 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) 75.90% 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-2 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 aggregate 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 Certificate
Principal Balance of the Class M-1 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) 79.50% 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-2 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 aggregate 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 Certificate
Principal Balance of the Class M-1 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) 82.80% 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-2 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 aggregate 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 Certificate
Principal Balance of the Class M-1 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) 86.00%
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-2 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 aggregate 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 Certificate
Principal Balance of the Class M-1 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) 88.90% 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-2 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 aggregate 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 Certificate
Principal Balance of the Class M-1 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) 91.00% 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-10 Certificate”: Any one of the Class M-10 Certificates executed and
authenticated by the Securities Administrator and delivered by the Trustee,
substantially in the form annexed hereto as Exhibit A-2 and evidencing a Regular
Interest in REMIC III for purposes of the REMIC Provisions.
“Class
M-10 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 aggregate 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 Certificate
Principal Balance of the Class M-1 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 M-10 Certificates immediately
prior to such Distribution Date over (y) the lesser of (A) the product of (i)
93.50% 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-4 and evidencing a Regular Interest in REMIC
III 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-5, 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”: February 28, 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 for the benefit of the Certificateholders and the Insurer, which
shall be entitled “▇▇▇▇▇ Fargo Bank, National Association, 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-HE1, 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-HE1, Asset
Backed Pass-Through Certificates”. The Collection Accounts must be Eligible
Accounts.
“Commission”:
The Securities and Exchange Commission.
“Controlling
Person”: Means, with respect to any Person, any other Person who “controls” such
Person within the meaning of the Securities Act.
“Corporate
Trust Office”: The principal corporate trust office of the Trustee or the
Securities Administrator, as the case 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-HE1, 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
Securities Administrator, (A) for purposes of Certificate transfers and
surrender, ▇▇▇▇▇ Fargo Bank, National Association, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust (ACE 2006-HE1),
and (B) for all other purposes, ▇▇▇▇▇ Fargo Bank, National Association, ▇.▇.
▇▇▇
▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust (ACE 2006-HE1) (or
for
overnight deliveries, at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Corporate Trust (ACE 2006-HE1)), 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-1A
|
A-1A
|
|
REMIC
II Regular Interest A-1B1
|
A-1B1
|
|
REMIC
II Regular Interest A-1B2
|
A-1B2
|
|
REMIC
II Regular Interest A-2A
|
A-2A
|
|
REMIC
II Regular Interest A-2B
|
A-2B
|
|
REMIC
II Regular Interest A-2C
|
A-2C
|
|
REMIC
II Regular Interest A-2D
|
A-2D
|
|
REMIC
II Regular Interest M-1
|
M-1
|
|
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 M-10
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M-10
|
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REMIC
II Regular Interest P
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P
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“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 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”: 0.0135% per annum.
“Credit
Risk Manager”: ▇▇▇▇▇▇▇ Fixed Income Services Inc. (formerly known as The
Murrayhill Company), a Colorado corporation, and its successors and
assigns.
“Custodial
Accounts”: The separate accounts maintained by the Interim Servicers pursuant to
the Interim Servicing Agreements for the benefit of the Certificateholders
and
the Insurer.
“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, November 1, 2005. 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, or its
successor in interest.
“DBNTC
Custodial Agreement”: The Custodial Agreement dated as of February 1, 2006,
among the Trustee, DBNTC and the Servicers, 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, F-1+ by Fitch 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 and (i) ▇▇▇▇▇ Fargo, the Business
Day immediately preceding the related Servicer Remittance Date, (ii) Ocwen,
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 and (iii) the Interim Servicers, as set forth in the Interim Servicing
Agreements. 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 the Insurer and designated “▇▇▇▇▇ Fargo Bank, National
Association, in trust for registered holders of ACE Securities Corp. Home Equity
Loan Trust, Series 2006-HE1”. 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 March
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, 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. With respect to any Distribution Date and each Interim
Servicer, the period as set forth in the related Interim Servicing
Agreement.
“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 or (iii) a trust account or accounts maintained with a federal
depository institution or state chartered depository institution acting in
its
fiduciary capacity. Eligible Accounts may bear interest.
“ERISA”:
The Employee Retirement Income Security Act of 1974, as amended from time to
time.
“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 or the related Interim
Servicer is entitled to be reimbursed from Liquidation Proceeds with respect
to
such liquidated Mortgage Loan pursuant to Section 3.09 of this Agreement or
pursuant to the related Interim Servicing Agreement.
“Exchange
Act”: The Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder.
“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 February 2036.
“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 Terminator 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 or the related Interim Servicer
that
all Insurance Proceeds, Liquidation Proceeds and other payments or recoveries
which the related Servicer or the related Interim 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 of the related Servicer or the related Interim Servicer
delivered to the Master Servicer and maintained in its records.
“Fitch”:
Fitch Ratings or any successor in interest.
“Form
8-K
Disclosure Information”: Has the meaning set forth in Section
5.06(b).
“▇▇▇▇▇▇▇
Mac”: ▇▇▇▇▇▇▇ Mac, formerly known as the Federal Home Loan Mortgage Corporation,
or any successor thereto.
“Fremont”:
Fremont Investment & Loan, and any successor thereto.
“Fremont
Assignment
Agreement”:
The
Assignment, Assumption and Recognition Agreement, dated as of February 28,
2006,
by and among the Sponsor, the Depositor and Fremont evidencing the assignment
of
the Fremont Servicing Agreement to the Depositor.
“Fremont
Mortgage Loans”: The Mortgage Loans being serviced by Fremont from the period
beginning on the Closing Date and ending on the Servicing Transfer
Date.
“Fremont
Servicing Agreement”: The Master Mortgage Loan Purchase and Interim Servicing
Agreement dated May 1, 2004, as amended by Amendment Number One, dated September
29, 2004, Amendment Number Two, dated June 1, 2005 and Amendment Number Three,
dated November 29, 2005, each between the Sponsor and Fremont, as modified
by
the Fremont Assignment Agreement.
“GreenPoint”:
GreenPoint Mortgage Funding, Inc., and any successor thereto.
“GreenPoint
Assignment Agreement”: The Assignment, Assumption and Recognition Agreement,
dated as of February 28, 2006, by and among the Sponsor, the Depositor and
GreenPoint evidencing the assignment of the GreenPoint Servicing Agreement
to
the Depositor.
“GreenPoint
Mortgage Loans”: The Mortgage Loans being serviced by the GreenPoint from the
period beginning on the Closing Date and ending on the Servicing Transfer
Date.
“GreenPoint
Servicing Agreement”: The Amended and Restated Master Mortgage Loan Purchase and
Servicing Agreement, dated as of January 1, 2005, as amended by Amendment Number
One, dated as of April 8, 2005, Amendment Number Two, dated as of June 30,
2005
and Amendment Number Three, dated as of October 7, 2005, each between the
Sponsor and GreenPoint, as modified by the GreenPoint Assignment
Agreement.
“Gross
Margin”: With respect to each Adjustable Rate Mortgage Loan, the fixed
percentage set forth in the related Mortgage Note that is added to the Index
on
each Adjustment Date in accordance with the terms of the related Mortgage Note
used to determine the Mortgage Rate for such Adjustable Rate Mortgage
Loan.
“Group
IA
Allocation Percentage”: The aggregate principal balance of the Group IA Mortgage
Loans divided by the sum of the aggregate principal balance of the Group IA
Mortgage Loans, Group IB Mortgage Loans and Group II Mortgage
Loans.
“Group
IA
Interest Remittance Amount”: With respect to any Distribution Date is that
portion of the Available Distribution Amount for such Distribution Date that
represents interest received or advanced on the Group IA 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 or the Interim Servicers
pursuant to the Interim Servicing Agreements).
“Group
IA
Mortgage Loans”: Those Mortgage Loans identified on the Mortgage Loan Schedule
as Group IA Mortgage Loans.
“Group
IA
Principal Distribution Amount”: With respect to any Distribution Date will be
the sum of (i) the principal portion of all Monthly Payments on the Group IA
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 Group IA 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 Group IA Mortgage Loans, net
in
each case of payments or reimbursements to the Trustee, the Custodians, the
Master Servicer, the Securities Administrator, the Servicers or the Interim
Servicers and (iv) the Class A-1A Allocation Percentage of the amount of any
Overcollateralization Increase Amount for such Distribution Date minus
(v) the
Class A-1A Allocation Percentage of the amount of any Overcollateralization
Reduction Amount for such Distribution Date.
“Group
IA
Principal Remittance Amount”: With respect to any Distribution Date will be the
sum of (a) the amounts described in clauses (i) through (iii) of the definition
of Group IA Principal Distribution Amount.
“Group
IB
Allocation Percentage”: The aggregate principal balance of the Group IB Mortgage
Loans divided by the sum of the aggregate principal balance of the Group IA
Mortgage Loans, Group IB Mortgage Loans and Group II Mortgage
Loans.
“Group
IB
Interest Remittance Amount”: With respect to any Distribution Date is that
portion of the Available Distribution Amount for such Distribution Date that
represents interest received or advanced on the Group IB 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 Master Servicer or the Servicers pursuant to this Agreement
or the Custodial Agreements or the Interim Servicers pursuant to the Interim
Servicing Agreements).
“Group
IB
Mortgage Loans”: Those Mortgage Loans identified on the Mortgage Loan Schedule
as Group IB Mortgage Loans.
“Group
IB
Principal Distribution Amount”: With respect to any Distribution Date will be
the sum of (i) the principal portion of all Monthly Payments on the Group IB
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 Group IB 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 Group IB Mortgage Loans, net
in
each case of payments or reimbursements to the Trustee, the Custodians, the
Master Servicer, the Securities Administrator, the Servicers or the Interim
Servicers and (iv) the Class A-1B Allocation Percentage of the amount of any
Overcollateralization Increase Amount for such Distribution Date minus
(v) the
Class A-1B Allocation Percentage of the amount of any Overcollateralization
Reduction Amount for such Distribution Date.
“Group
IB
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
Group IB Principal Distribution Amount.
“Group
II
Allocation Percentage”:
The
aggregate principal balance of the Group II Mortgage Loans divided by the sum
of
the aggregate principal balance of the Group IA Mortgage Loans, Group IB
Mortgage Loans and Group II Mortgage Loans.
“Group
II
Interest Remittance Amount”: With respect to any Distribution Date is that
portion of the Available Distribution Amount for such Distribution Date that
represents interest received or advanced on the Group II 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 or the Interim Servicers
pursuant to the Interim Servicing Agreements).
“Group
II
Mortgage Loans”: Those Mortgage Loans identified on the Mortgage Loan Schedule
as Group II Mortgage Loans.
“Group
II
Principal Distribution Amount”: With respect to any Distribution Date will be
the sum of (i) the principal portion of all Monthly Payments on the Group II
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 Group II 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 Group II Mortgage Loans, net
in
each case of payments or reimbursements to the Trustee, the Custodians, the
Master Servicer, the Securities Administrator, the Servicers or the Interim
Servicers and (iv) the Class A-2 Allocation Percentage of the amount of any
Overcollateralization Increase Amount for such Distribution Date minus
(v) the
Class A-2 Allocation Percentage of the amount of any Overcollateralization
Reduction Amount for such Distribution Date.
“Group
II
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
Group II Principal Distribution Amount.
“Independent”:
When used with respect to any accountants, a person who is “independent” within
the meaning of Rule 2-01(B) of the Commission’s Regulation S-X. 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, the Insurer 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, the
Insurer or any Affiliate thereof, (c) is not connected with the Depositor,
the
Master Servicer, the Securities Administrator, the Servicers, the Sponsor,
any
originator, the Insurer or any Affiliate thereof as an officer, employee,
promoter, underwriter, trustee, partner, director or Person performing similar
functions and (d) is not a member of the immediate family of a Person defined
in
clause (b) or (c) above.
“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 any
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.
“Index”:
As of any Adjustment Date, the index applicable to the determination of the
Mortgage Rate on each Adjustable Rate Mortgage Loan will generally be the
average of the interbank offered rates for six-month United States dollar
deposits in the London market as published in The
Wall Street Journal and
as
most recently available either (a) as of the first Business Day forty-five
(45)
days prior to such Adjustment Date or (b) as of the first Business Day of the
month preceding the month of such Adjustment Date, as specified in the related
Mortgage Note.
“Institutional
Accredited Investor”: As defined in Section 6.01(c).
“Insurance
Agreement”: The Insurance and Indemnity Agreement, dated as of February 28,
2006, among the Insurer, the Depositor and the Sponsor.
“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.
“Insured
Certificates”: The Class A-1B2 Certificates.
“Insurer”:
CIFG Assurance North America, Inc., a stock insurance company, organized and
created under the laws of the State of New York and its successors in
interest.
“Insurer
Contact Person”: The person designated as such pursuant to Section 13.04(m) of
this Agreement.
“Insurer
Default”: As defined in Section 12.4(j).
“Insurer
Premium”: The Policy premium payable pursuant to Section 5.01(c)(3) hereof for
each Distribution Date in an amount equal to the Insurer Premium Rate accrued
for one month, on the basis of a 360-day year consisting of twelve 30-day
months, on the aggregate Certificate Principal Balance of the Insured
Certificates immediately prior to such Distribution Date.
“Insurer
Premium Rate”: The per annum rate at which the Insurer Premium for the Policy is
calculated, which shall be 0.060% per annum of the Certificate Principal Balance
of the Class A-1B2 Certificates.
“Interest
Accrual Period”: With respect to any Distribution Date and the Class A
Certificates and the Mezzanine 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 Class CE-1
Certificates, Class CE-2 Certificates and the REMIC I Regular Interests, the
one-month period 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 or Mezzanine 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 Class A Certificates, the Mezzanine
Certificates, REMIC I Regular Interests and REMIC II Regular Interests (other
than REMIC I Regular Interest P and REMIC II Regular Interest P) 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 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, the sum of: (i) the
Group IA Interest Remittance Amount, (ii) the Group IB Interest Remittance
Amount and (iii) the Group II Interest Remittance Amount.
“Interim
Servicers”: Fremont, GreenPoint and New Century, or any successors
thereto.
“Interim
Servicing Agreements”: The Fremont Servicing Agreement, the GreenPoint Servicing
Agreement and the New Century Servicing Agreement.
“Last
Scheduled Distribution Date”: The Distribution Date in February 2036, which is
the Distribution Date immediately following the maturity date for the Mortgage
Loan with the latest maturity date.
“Late
Payment Rate”: An amount equal to the lesser of (a) the greater of (i) the per
annum rate of interest, publicly announced from time to time by JPMorgan Chase
Bank at its principal office in New York, New York, as its prime or base lending
rate (any change in such rate of interest to be effective on the date such
change is announced by JPMorgan Chase Bank) plus 3%, and (ii) the then
applicable highest rate of interest on the Class A 1B2 Certificates and (b)
the
maximum rate permissible under applicable usury or similar laws limiting
interest rates. The Late Payment Rate shall be computed on the basis of the
actual number of days elapsed over a year of 360 days.
“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.
“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 or the related Interim 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 pursuant to the
Servicing 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-1A, REMIC II Regular
Interest A-1B1, REMIC II Regular Interest A-1B2, REMIC II Regular Interest
A-2A,
REMIC II Regular Interest A-2B, REMIC II Regular Interest A-2C, REMIC II Regular
Interest A-2D, REMIC II Regular Interest M-1, 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 M-10 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 lesser of (i) the related One-Month LIBOR Pass-Through Rate and
(ii) the related Net WAC 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, each such cap for each REMIC II Regular Interest
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
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.
“Maximum
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 Regular
Interest A-1A, REMIC II Regular Interest A-1B1, REMIC II Regular Interest A-1B2,
REMIC II Regular Interest A-2A, REMIC II Regular Interest A-2B, REMIC II Regular
Interest A-2C, REMIC II Regular Interest A-2D, REMIC II Regular Interest M-1,
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 M-10 for such Distribution Date,
with
the rate on each such REMIC II Regular Interest subject to a cap equal to the
lesser of (i) the related One-Month LIBOR Pass-Through Rate and (ii) the related
Net WAC Pass-Through Rate for the Corresponding Certificate for the purpose
of
this calculation for such Distribution Date; provided however, each such cap
for
each REMIC II Regular Interest 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 30.
“Maximum
Mortgage Rate”: With respect to each Adjustable Rate Mortgage Loan, the
percentage set forth in the related Mortgage Note as the maximum Mortgage Rate
thereunder.
“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, Class M-9 and Class M-10 Certificate.
“MIN”:
The Mortgage Identification Number for Mortgage Loans registered with MERS
on
the MERS® System.
“Minimum
Mortgage Rate”: With respect to each Adjustable Rate Mortgage Loan, the
percentage set forth in the related Mortgage Note as the minimum Mortgage Rate
thereunder.
“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 laws; (b) without giving effect to any extension granted or agreed
to by the related Servicer pursuant to Section 3.01 of this Agreement or by
the related Interim Servicer pursuant to the related Interim Servicing
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 in interest.
“Mortgage”:
The mortgage, deed of trust or other instrument creating a first or second
lien
on, or first 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 related
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 related Custodial Agreement on
behalf of the Trustee.
“Mortgage
Loan Purchase Agreement”: Shall mean the Mortgage Loan Purchase Agreement dated
as of February 28, 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, separately identifying the Group IA Mortgage Loans, the Group
IB
Mortgage Loans and the Group II Mortgage Loans, 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 Custodians 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) with
respect to each Adjustable Rate Mortgage Loan, the first Adjustment
Date;
(xviii) with
respect to each Adjustable Rate Mortgage Loan, the Gross Margin;
(xix) a
code
indicating the purpose of the loan (i.e., purchase financing, rate/term
refinancing, cash-out refinancing);
(xx) with
respect to each Adjustable Rate Mortgage Loan, the Maximum Mortgage Rate under
the terms of the Mortgage Note;
(xxi) with
respect to each Adjustable Rate Mortgage Loan, the Minimum Mortgage Rate under
the terms of the Mortgage Note;
(xxii) the
Mortgage Rate at origination;
(xxiii) with
respect to each Adjustable Rate Mortgage Loan, the Periodic Rate
Cap;
(xxiv) with
respect to each Adjustable Rate Mortgage Loan, the first Adjustment Date
immediately following the Cut-off Date;
(xxv) with
respect to each Adjustable Rate Mortgage Loan, the Index;
(xxvi) 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;
(xxvii) a
code
indicating whether the Mortgage Loan is an Adjustable Rate Mortgage Loan or
a
fixed rate Mortgage Loan;
(xxviii) a
code
indicating the documentation style (i.e., full, stated or limited);
(xxix) 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 and, if
applicable, the rate payable in connection therewith;
(xxx) the
Appraised Value of the Mortgaged Property;
(xxxi) the
sale
price of the Mortgaged Property, if applicable;
(xxxii) 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;
(xxxiii) the
product type (e.g., 2/28, 15 year fixed, 30 year fixed, 15/30 balloon,
etc.);
(xxxiv) the
Mortgagor’s debt to income ratio;
(xxxv) the
FICO
score at origination;
(xxxvi) with
respect to each Mortgage Loan registered on MERS, the MIN;
(xxxvii) a
code
indicating whether the Mortgage Loan is secured by a first or second
lien;
(xxxviii) the
applicable Custodian; and
(xxxix) the
Servicer or Interim Servicer, as applicable.
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, which rate with respect to each
Adjustable Rate Mortgage Loan (A) as of any date of determination until the
first Adjustment Date following the Cut-off Date shall be the rate set forth
in
the Mortgage Loan Schedule as the Mortgage Rate in effect immediately following
the Cut-off Date and (B) as of any date of determination thereafter shall be
the
rate as adjusted on the most recent Adjustment Date equal to the sum, rounded
to
the nearest 0.125% as provided in the Mortgage Note, of the Index, as most
recently available as of a date prior to the Adjustment Date as set forth in
the
related Mortgage Note, plus the related Gross Margin; provided that the Mortgage
Rate on such Adjustable Rate Mortgage Loan on any Adjustment Date shall never
be
more than the lesser of (i) the sum of the Mortgage Rate in effect immediately
prior to the Adjustment Date plus the related Periodic Rate Cap, if any, and
(ii) the related Maximum Mortgage Rate, and shall never be less than the greater
of (i) the Mortgage Rate in effect immediately prior to the Adjustment Date
less
the Periodic Rate Cap, if any, and (ii) the related Minimum Mortgage Rate.
With
respect to each Mortgage Loan that becomes an REO Property, as of any date
of
determination, the annual rate determined in accordance with the immediately
preceding sentence as of the date such Mortgage Loan became an REO
Property.
“Mortgaged
Property”: The underlying property securing a Mortgage Loan, 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, (C) the Principal Remittance Amount, (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 and (E) the Insurer Premium and any
Reimbursement Amounts payable to the Insurer.
“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”: With respect to the Class A-1A Certificates and any
Distribution Date, a rate per annum (adjusted 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 Group IA Mortgage Loans in the prior calendar month minus the fees
payable to the Interim Servicers, the Servicers and the Credit Risk Manager
and
the Group IA Allocation Percentage of any 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 Group IA 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 (adjusted
for the actual number of days elapsed in the related Interest Accrual Period)
the REMIC II Remittance Rate on REMIC II Regular Interest IA-GRP, weighted
on
the basis of the Uncertificated Balance of such REMIC II Regular Interest.
With
respect to the Class A-1B1 Certificates and Class A-1B2 Certificates and any
Distribution Date, a rate per annum (adjusted 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 Group IB Mortgage Loans in the prior calendar month minus the fees
payable to the Interim Servicers, the Servicers and the Credit Risk Manager
and,
with respect to the Class A-1B2 Certificates, the Insurer Premium and the Group
IB Allocation Percentage of any 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 Group IB 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 (adjusted
for the actual number of days elapsed in the related Interest Accrual Period)
the REMIC II Remittance Rate on REMIC II Regular Interest IB-GRP, weighted
on
the basis of the Uncertificated Balance of such REMIC II Regular
Interest.
With
respect to the Class A-2 Certificates and any Distribution Date, a rate per
annum (adjusted 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 Group II Mortgage Loans
in
the prior calendar month minus the fees payable to the Interim Servicers, the
Servicers and the Credit Risk Manager and the Group II Allocation Percentage
of
any 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 Group II 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 (adjusted for the actual number of days
elapsed in the related Interest Accrual Period) the REMIC II Remittance Rate
on
REMIC II Regular Interest II-GRP, weighted on the basis of the Uncertificated
Balance of such REMIC II Regular Interest.
With
respect to the Mezzanine Certificates and any Distribution Date a rate per
annum
equal to (x) the weighted average (weighted in proportion to the results of
subtracting from the Scheduled Principal Balance of each loan group, the
Certificate Principal Balance of the related Class A Certificates) of (i) the
Net WAC Pass-Through Rate for the Class A-1A Certificates, (ii) the Net WAC
Pass-Through Rate for the Class A-1B1 Certificates and Class A-2B2 Certificates
and (iii) the Net WAC Pass-Through Rate for the Class A-2 Certificates. For
federal income tax purposes, the economic equivalent of such rate shall be
expressed as the weighted average of (adjusted for the actual number of days
elapsed in the related Interest Accrual Period) the REMIC II Remittance Rates
on
(a) REMIC II Regular Interest IA-SUB, subject to a cap and a floor equal to
the
REMIC II Remittance Rate on REMIC II Regular Interest IA-GRP, (b) REMIC II
Regular Interest IB-SUB, subject to a cap and a floor equal to the REMIC II
Remittance Rate on REMIC II Regular Interest IB-GRP and (c) REMIC II Regular
Interest II-SUB, subject to a cap and a floor equal to the REMIC II Remittance
Rate on REMIC II Regular Interest II-GRP, weighted on the basis of the
Uncertificated Balance of each such REMIC II Regular Interest.
“Net
WAC
Rate Carryover Amount”: With respect to any Class A Certificate or Mezzanine
Certificate and any Distribution Date on which the Pass-Through Rate is limited
to the applicable Net WAC Pass-Through Rate, an amount equal to the sum of
(i)
the excess of (x) the amount of interest such Class would have been entitled
to
receive on such Distribution Date if the applicable Net WAC Pass-Through Rate
would not have been applicable to such Class on such Distribution Date over
(y)
the amount of interest paid to such Class on such Distribution Date at the
applicable Net WAC Pass-Through Rate plus (ii) the related Net WAC Rate
Carryover Amount for the previous Distribution Date not previously distributed
to such Class together with interest thereon at a rate equal to the Pass-Through
Rate for such Class for the most recently ended Interest Accrual Period without
taking into account the applicable Net WAC Pass-Through Rate.
“New
Century”: New Century Mortgage Corporation, and any successor
thereto.
“New
Century Assignment Agreement”: The Assignment, Assumption and Recognition
Agreement, dated as of February 28, 2006, by and among the Sponsor, the
Depositor and New Century evidencing the assignment of the New Century Servicing
Agreement to the Depositor.
“New
Century Mortgage Loans”: The Mortgage Loans being serviced by New Century from
the period beginning on the Closing Date and ending on the Servicing Transfer
Date.
“New
Century Servicing Agreement”: The Master Mortgage Loan Purchase and Interim
Servicing Agreement dated as of March 1, 2005, as amended by Amendment Number
One, dated as of May 1, 2005 and Amendment Number Two, dated as of September
12,
2005, each among the Sponsor, New Century and NC Capital Corporation, as
modified by the New Century Assignment Agreement.
“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 or the Trustee, as applicable) 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 or in the Servicing
Agreement.
“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, the related Interim Servicer or a successor
to
a 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
or
in the related Interim Servicing Agreement.
“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 Certificates is equal to
$2,535,701,803.39.
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 CE-2 for such Distribution
Date.
With
respect to REMIC I Regular Interest CE-2 and any Distribution Date, the sum
of
the aggregate principal balances of the Ocwen Mortgage Loans for such
Distribution Date.
“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, 0.10% per annum;
provided, however, that with respect to the Mortgage Loans listed on Schedule
7
attached hereto, for the first Distribution Date, the Ocwen Servicing Fee Rate
shall be equal to 0.50% 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 Class A Certificates, the Mezzanine Certificates,
REMIC II Regular Interests (other than REMIC II Regular Interest P) 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-1A Certificates and, for
purposes of the definition of “Marker Rate”, REMIC II Regular Interest A-1A, a
per annum rate equal to One-Month LIBOR plus the related Certificate
Margin.
With
respect to the Class A-1B1 Certificates and, for purposes of the definition
of
“Marker Rate”, REMIC II Regular Interest A-1B1, a per annum rate equal to
One-Month LIBOR plus the related Certificate Margin.
With
respect to the Class A-1B2 Certificates and, for purposes of the definition
of
“Marker Rate”, REMIC II Regular Interest A-1B2, a per annum rate equal to
One-Month LIBOR plus the related Certificate Margin.
With
respect to the Class A-2A Certificates and, for purposes of the definition
of
“Marker Rate”, REMIC II Regular Interest A-2A, a per annum rate equal to
One-Month LIBOR plus the related Certificate Margin.
With
respect to the Class A-2B Certificates and, for purposes of the definition
of
“Marker Rate”, REMIC II Regular Interest A-2B, a per annum rate equal to
One-Month LIBOR plus the related Certificate Margin.
With
respect to the Class A-2C Certificates and, for purposes of the definition
of
“Marker Rate”, REMIC II Regular Interest A-2C, a per annum rate equal to
One-Month LIBOR plus the related Certificate Margin.
With
respect to the Class A-2D Certificates and, for purposes of the definition
of
“Marker Rate”, REMIC II Regular Interest A-2D, a per annum rate equal to
One-Month LIBOR plus the related Certificate Margin.
With
respect to the Class M-1 Certificates and, for purposes of the definition of
“Marker Rate”, REMIC II Regular Interest M-1, a per annum rate equal to
One-Month LIBOR plus the related Certificate Margin.
With
respect to the Class M-2 Certificates and, for purposes of the definition of
“Marker Rate”, REMIC II Regular Interest M-2, a per annum rate equal to
One-Month LIBOR plus the related Certificate Margin.
With
respect to the Class M-3 Certificates and, for purposes of the definition of
“Marker Rate”, REMIC II Regular Interest M-3, 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 M-10 Certificates and, for purposes of the definition
of
“Marker Rate”, REMIC II Regular Interest M-10, 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; provided however, any Opinion of Counsel provided by ▇▇▇▇▇ Fargo
pursuant to clause (b) above with respect to the continued eligibility of
modified Mortgage Loans may be provided by internal counsel, provided that,
the
delivery of such Opinion of Counsel shall not release the Servicer from any
of
its obligations hereunder and the Servicer shall be responsible for such
contemplated actions or inaction, as the case may be, to the extent it conflicts
with the terms of this Agreement.
“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 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 and the Mezzanine 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, 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 pursuant to Section 8.02 of this Agreement or by the
related Interim Servicer pursuant to the related Interim Servicing 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 the Mezzanine Certificates,
and any Distribution Date, a rate per annum equal to the lesser of (i) the
related One-Month LIBOR Pass-Through Rate for such Distribution Date and (ii)
the related 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 (xx) below,
and the denominator of which is the aggregate Uncertificated Balances of REMIC
II Regular Interest AA, REMIC II Regular Interest A-1A, REMIC II Regular
Interest A-1B1, REMIC II Regular Interest A-1B2, REMIC II Regular Interest
A-2A,
REMIC II Regular Interest A-2B, REMIC II Regular Interest A-2C, REMIC II Regular
Interest A-2D, REMIC II Regular Interest M-1, 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 M-10 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-1A minus the Marker Rate,
applied to an amount equal to the Uncertificated Balance of REMIC II Regular
Interest A-1A;
(iii) the
REMIC
II Remittance Rate for REMIC II Regular Interest A-1B1 minus the Marker Rate,
applied to an amount equal to the Uncertificated Balance of REMIC II Regular
Interest A-1B1;
(iv) the
REMIC
II Remittance Rate for REMIC II Regular Interest A-1B2 minus the Marker Rate,
applied to an amount equal to the Uncertificated Balance of REMIC II Regular
Interest A-1B2;
(v) the
REMIC
II Remittance Rate for REMIC II Regular Interest A-2A minus the Marker Rate,
applied to an amount equal to the Uncertificated Balance of REMIC II Regular
Interest A-2A;
(vi) the
REMIC
II Remittance Rate for REMIC II Regular Interest A-2B minus the Marker Rate,
applied to an amount equal to the Uncertificated Balance of REMIC II Regular
Interest A-2B;
(vii) the
REMIC
II Remittance Rate for REMIC II Regular Interest A-2C minus the Marker Rate,
applied to an amount equal to the Uncertificated Balance of REMIC II Regular
Interest A-2C;
(viii) the
REMIC
II Remittance Rate for REMIC II Regular Interest A-2D minus the Marker Rate,
applied to an amount equal to the Uncertificated Balance of REMIC II Regular
Interest A-2D;
(ix) the
REMIC
II Remittance Rate for REMIC II Regular Interest M-1 minus the Marker Rate,
applied to an amount equal to the Uncertificated Balance of REMIC II Regular
Interest M-1;
(x) 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;
(xi) 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;
(xii) 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;
(xiii) 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;
(xiv) 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;
(xv) 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;
(xvi) 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;
(xvii) 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;
(xviii) the
REMIC
II Remittance Rate for REMIC II Regular Interest M-10 minus the Marker Rate,
applied to an amount equal to the Uncertificated Balance of REMIC II Regular
Interest M-10;
(xix) 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
(xx) 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.
With
respect to REMIC III Regular Interest IO, REMIC III Regular Interest IO shall
not have a Pass-Through Rate, but current interest for REMIC III Regular
Interest IO and each Distribution Date shall be an amount equal to 100% of
the
amounts distributable to REMIC II Regular Interest IO for such Distribution
Date.
“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 and the Mezzanine 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.
“Periodic
Rate Cap”: With respect to each Adjustable Rate Mortgage Loan and any Adjustment
Date therefor, the fixed percentage set forth in the related Mortgage Note,
which is the maximum amount by which the Mortgage Rate for such Adjustable
Rate
Mortgage Loan may increase or decrease (without regard to the Maximum Mortgage
Rate or the Minimum Mortgage Rate) on such Adjustment Date from the Mortgage
Rate in effect immediately prior to such Adjustment Date.
“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, the related Servicer, 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 ▇▇▇▇▇’▇, Fitch 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, F-1 or
higher by Fitch 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 Fitch (if rated by Fitch),
“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.
“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.
“Policy”:
The Financial Guaranty Insurance Policy No. CIFG NA-814 issued by the Insurer
in
respect of the Insured Certificates, including any endorsements
thereto.
“Policy
Payments Account”: The account created and maintained by the Securities
Administrator pursuant to Section 12.4 hereof, which shall be entitled “▇▇▇▇▇
Fargo Bank, N.A, as Securities Administrator, in trust for the registered
holders of ACE Securities Corp., Home Equity Loan Trust, Series 2006-HE1, Asset
Backed Pass-Through Certificates, Class A-1B2 Certificates.” The Policy Payments
Account must be an Eligible Account.
“Prepayment
Assumption”: A prepayment rate for (a) the Adjustable Rate Mortgage Loans of
100% PPC, which represents (i) a per annum prepayment rate of 5% of the then
outstanding principal balance of the Adjustable Rate Mortgage Loans in the
first
month of the life of the Adjustable Rate Mortgage Loans, (ii) an additional
2%
per annum in each month thereafter through the eleventh month, (iii) building
to
a constant prepayment rate of 27% per annum beginning in the twelfth month
and
remaining constant until the twenty-third month, (iv) increasing to and
remaining constant at a prepayment rate of 60% per annum beginning in the
twenty-fourth month until the twenty-seventh month and (v) decreasing and
remaining constant at a prepayment rate of 30% per annum from the twenty-eighth
month and thereafter and (b) the fixed-rate Mortgage Loans of 100% PPC, which
represents (i) a per annum prepayment rate of 4% of the then outstanding
principal balance of the fixed rate Mortgage Loans in the first month of the
life of such Mortgage Loans, (ii) an additional 1.72727% per annum in each
month
thereafter through the eleventh month and (iii) a constant prepayment rate
of
23% per annum beginning in the twelfth month and in each month thereafter during
the life of the fixed rate Mortgage Loans; provided, however, the prepayment
rate will not exceed 85% per annum in any period for any percentage of PPC.
The
Prepayment Assumption is used solely for determining the accrual of original
issue discount on the Certificates for federal income tax purposes.
“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 Servicers, the Master Servicer and the Trustee on the Closing Date.
The
Prepayment Charge Schedule shall set forth the following information with
respect to each Prepayment Charge:
(i) the
Mortgage Loan identifying number;
(ii) a
code
indicating the type of Prepayment Charge;
(iii) the
date
on which the first Monthly Payment was due on the related Mortgage
Loan;
(iv) the
term
of the related Prepayment Charge;
(v) the
original Stated Principal Balance of the related Mortgage Loan; and
(vi) the
Stated Principal Balance of the related Mortgage Loan as of the Cut-off
Date.
“Prepayment
Interest Excess”: With respect to each ▇▇▇▇▇ Fargo 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 Determination Date 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. With
respect to each Ocwen 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)
of this Agreement.
“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. The obligations of the Interim Servicers in respect of any Prepayment
Interest Shortfalls are set forth in the Interim Servicing
Agreements.
“Prepayment
Period”: With respect to the ▇▇▇▇▇ Fargo Mortgage Loans and any Distribution
Date, the calendar month preceding the month in which the related Distribution
Date occurs with respect to prepayments in part, and the period beginning on
the
fourteenth (14th) day of the month preceding the related Distribution Date
(or,
the period commencing on the Cut-off Date, in connection with the first
Prepayment Period) and ending on the thirteenth (13th)
day of
the month in which such Distribution Date occurs with respect to prepayments
in
full. With respect to the Ocwen Mortgage Loans and the first Distribution Date,
the period beginning on the Cut-off Date and ending on the fourteenth
(14th)
day of
the month of such Distribution Date, and with respect to any Distribution Date
thereafter, the period beginning on the fifteenth (15th)
day of
the month preceding the related Distribution Date and ending on the fourteenth
(14th)
day of
the month in which such Distribution Date occurs. With respect to the Fremont
Mortgage Loans, GreenPoint Mortgage Loans and New Century Mortgage Loans, the
period specified in the related Interim Servicing Agreement.
“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
Distribution Amount”: With respect to any Distribution Date is the sum of the
Group IA Principal Distribution Amount, the Group IB Principal Distribution
Amount and the Group II Principal Distribution Amount.
“Principal
Remittance Amount”: With respect to any Distribution Date is the sum of the
Group IA Principal Remittance Amount, the Group IB Principal Remittance Amount
and the Group II Principal Remittance 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 or the related
Interim 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 or the related Interim
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 the
related Custodial Account pursuant to corresponding sections of the related
Interim Servicing 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, the related
Interim 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 Mortgage Rate not less than (and not more
than
one percentage point in excess of) the Mortgage Rate of the Deleted Mortgage
Loan, (iii) if the mortgage loan is an Adjustable Rate Mortgage Loan, have
a
Maximum Mortgage Rate not less than the Maximum Mortgage Rate on the Deleted
Mortgage Loan, (iv) if the mortgage loan is an Adjustable Rate Mortgage Loan,
have a Minimum Mortgage Rate not less than the Minimum Mortgage Rate of the
Deleted Mortgage Loan, (v) if the mortgage loan is an Adjustable Rate Mortgage
Loan, have a Gross Margin equal to the Gross Margin of the Deleted Mortgage
Loan, (vi) if the mortgage loan is an Adjustable Rate Mortgage Loan, have a
next
Adjustment Date not more than two months later than the next Adjustment Date
on
the Deleted Mortgage Loan, (vii) have a remaining term to maturity not greater
than (and not more than one year less than) that of the Deleted Mortgage Loan,
(viii) have the same Due Date as the Due Date on the Deleted Mortgage Loan,
(ix)
have a Loan-to-Value Ratio as of the date of substitution equal to or lower
than
the Loan-to-Value Ratio of the Deleted Mortgage Loan as of such date, (x) be
secured by the same lien priority on the related Mortgaged Property as the
Deleted Mortgage Loan, (xi) have a credit grade at least equal to the credit
grading assigned on the Deleted Mortgage Loan, (xii) be a “qualified mortgage”
as defined in the REMIC Provisions and (xiii) 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 (vii) hereof shall be determined on the basis of weighted average
remaining term to maturity, the Loan-to-Value Ratios described in clause (ix)
hereof shall be satisfied as to each such mortgage loan, the credit grades
described in clause (x) 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 (xii) 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”: ▇▇▇▇▇’▇, S&P and Fitch 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) or by the related Interim Servicer to the Master Servicer pursuant
to
the related Interim Servicing Agreement, 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 or the related Custodial Account in respect
of such Mortgage Loan pursuant to Section 3.09(a)(ix) and
Section 3.13(b) of this Agreement or pursuant to corresponding provisions
of the related Interim Servicing Agreement, as applicable, 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 or the related Interim Servicer
with respect to such Mortgage Loan pursuant to Section 3.09(a)(iii) of this
Agreement or pursuant to the Servicing Agreement.
With
respect to any REO Property as to which a Final Recovery Determination has
been
made, an amount (not less than zero) equal to (i) the 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 or the related Custodial Account in respect of the related Mortgage
Loan
pursuant to Section 3.09(a)(ix) and Section 3.13(b) of this Agreement
or pursuant to corresponding sections of the related Interim Servicing
Agreement, as applicable, 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 or the
related Interim Servicer in respect of such REO Property or the related Mortgage
Loan for which the related Servicer or the related Interim Servicer has been
or,
in connection with such Final Recovery Determination, will be reimbursed
pursuant to Section 3.21 of this Agreement or pursuant to the related
Interim Servicing 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 or pursuant to the
related Interim Servicing 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 or the related Interim 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 Class A Certificates and
the Mezzanine 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 any other Class of Certificates,
including any Definitive Certificates, the last 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 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.
“Regular
Payments”:
Means
any and all regularly scheduled payments of interest and the final payment
of
principal on the Class A-1B2 Certificates required to be made in accordance
with
their original terms and without regard to any subsequent amendment or
modification thereof except amendments or modifications to which the Insurer
has
given its prior written consent. Regular Payments shall include (i) with respect
to any Distribution Date, the amount, if any, by which the amount available
to
be paid as interest to the Class A-1B2 Certificates, pursuant to the priority
of
payments set forth in Section 5.01, is less than the Interest Distribution
Amount, plus any Interest Carry Forward Amounts payable to the Class A-1B2
Certificates and (ii) to the extent unpaid on the Last Scheduled Distribution
Date, after taking into account all distributions to be made on such date,
any
remaining Certificate Principal Balance of the Class A-1B2 Certificates. Regular
Payments shall not include, nor shall coverage be provided under the Policy
in
respect of: (1) payments which become due on an accelerated basis as a
result of (a) early or rapid amortization of the Class A-1B2
Certificates, (d) redemption for any reason other than the exercise of the
Terminator of its optional termination right pursuant to Section 10.01, or
(e) any other cause, unless the Insurer shall elect, in its sole
discretion, to pay any amount due upon such acceleration together with any
accrued interest to the date of acceleration; (2) any amounts due in
respect of the Class A-1B2 Certificates attributable to any increase in interest
rate, penalty or other sum payable by the Trust Fund (i) by reason of any
default or event of default in respect of the Class A-1B2 Certificates; (ii)
by
reason of any deterioration of the creditworthiness of any other person; or
(iii) due to the occurrence of an increase in the Certificate Margin applicable
to the calculation of the Pass-Through Rate on the Class A-1B2 Certificates
after the first possible Optional Termination Date; (3) any taxes,
withholding or other charge imposed by any governmental authority due in
connection with the payment of any Regular Payment to the Policyholder or
(4) any amounts due in respect of the Class A-1B2 Certificates but unpaid
as a result of any Prepayment Interest Shortfalls, any shortfalls resulting
from
the application of the Relief Act or Net WAC Rate Carryover
Amounts.
“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.
“Reimbursement
Amount”: As to any Distribution Date, the aggregate of any payments made with
respect to the Class A-1B2 Certificates by the Certificate Insurer under the
Policy to the extent not previously reimbursed, plus interest at the Late
Payment Rate, plus any other amounts owing to the Insurer under this Agreement
or the Insurance Agreement.
“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, the
Trustee or the Servicer, the term “Relevant Servicing Criteria” may refer to a
portion of the Relevant Servicing Criteria applicable to such
parties.
“Relief
Act”: The Servicemembers Civil Relief Act, as amended, or similar state or local
laws.
“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.
“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), the Interim Servicing Agreements and the Assignment Agreements, and
(v) the Collection Accounts, the Custodial 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; (ii) the Reserve Fund and any amounts on deposit therein
from
time to time and any proceeds thereof; (iii) the Swap Agreement Contracts;
and
(iv) the Supplemental Interest Trust.
“REMIC
I
Group IA Regular Interests”: REMIC I Regular Interest A-I and REMIC I Regular
Interest I-1-A through REMIC I Regular Interest I-44-B as designated in the
Preliminary Statement hereto.
“REMIC
I
Group IB Regular Interests”: REMIC I Regular Interest A-II and REMIC I Regular
Interest II-1-A through REMIC I Regular Interest II-44-B as designated in the
Preliminary Statement hereto.
“REMIC
I
Group II Regular Interests”: REMIC I Regular Interest A-III and REMIC I Regular
Interest III-1-A through REMIC I Regular Interest III-44-B as designated in
the
Preliminary Statement hereto.
“REMIC
I
Regular Interest”: Any of the 269 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.
“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 Group IA Mortgage Loans. With respect
to each REMIC I Group IA Regular Interest ending with the designation “A”, a per
annum rate equal to the weighted average of the Net Mortgage Rates of the Group
IA Mortgage Loans multiplied by 2, subject to a maximum rate of 9.49%. With
respect to each REMIC I Group IA Regular Interest ending with the designation
“B”, the greater of (x) a per annum rate equal to the excess, if any, of (i) 2
multiplied by the weighted average of the Net Mortgage Rates of the Group IA
Mortgage Loans over (ii) 9.49% and (y) 0.00%. With respect to REMIC I Regular
Interest A-II, a per annum rate equal to the weighted average of the Net
Mortgage Rates of the Group IB Mortgage Loans. With respect to each REMIC I
Group IB Regular Interest ending with the designation “A”, a per annum rate
equal to the weighted average of the Net Mortgage Rates of the Group IB Mortgage
Loans multiplied by 2, subject to a maximum rate of 9.49%. With respect to
each
REMIC I Group IB 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 Group IB Mortgage Loans over
(ii) 9.49% and (y) 0.00%. With respect to REMIC I Regular Interest A-III, a
per
annum rate equal to the weighted average of the Net Mortgage Rates of the Group
II Mortgage Loans. With respect to each REMIC I Group II Regular Interest ending
with the designation “A”, a per annum rate equal to the weighted average of the
Net Mortgage Rates of the Group II Mortgage Loans multiplied by 2, subject
to a
maximum rate of 9.49%. With respect to each REMIC I Group II 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 Group II Mortgage Loans over (ii) 9.49% and (y) 0.00%.
With respect to REMIC I Regular Interest P, 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 and
(y)
Credit Risk Management Fee Rate, over (ii) the Net Mortgage Rate of each such
Mortgage Loan.
“REMIC
II”: The segregated pool of assets consisting of all of the REMIC I Regular
Interests conveyed in trust to the Trustee, for the benefit of the REMIC II
Regular Interests pursuant to Section 2.07, and all amounts deposited
therein, with respect to which a separate REMIC election is to be
made.
“REMIC
II
Interest Loss Allocation Amount”: With respect to any Distribution Date, an
amount equal to (a) the product of (i) 50% of 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
Marker Allocation Percentage”: 50% of any amount payable or loss attributable
from the Mortgage Loans, which shall be allocated to REMIC II Regular Interest
AA, REMIC II Regular Interest A-1A, REMIC II Regular Interest A-1B1, REMIC
II
Regular Interest A-1B2, REMIC II Regular Interest A-2A, REMIC II Regular
Interest A-2B, REMIC II Regular Interest A-2C, REMIC II Regular Interest A-2D,
REMIC II Regular Interest M-1, 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-8, REMIC II Regular
Interest M-9, REMIC II Regular Interest M-10, REMIC II Regular Interest ZZ
and
REMIC II Regular Interest P.
“REMIC
II
Overcollateralization Amount”: With respect to any date of determination, (i)
0.50% of the aggregate Uncertificated Balances of the REMIC II Regular Interests
minus (ii) the aggregate of the Uncertificated Balances of REMIC II Regular
Interest A-1A, REMIC II Regular Interest A-1B1, REMIC II Regular Interest A-1B2,
REMIC II Regular Interest A-2A, REMIC II Regular Interest A-2B, REMIC II Regular
Interest A-2C, REMIC II Regular Interest A-2D, REMIC II Regular Interest M-1,
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 M-10 and REMIC II Regular Interest
P, 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) 50% 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-1A, REMIC II Regular
Interest A-1B1, REMIC II Regular Interest A-1B2, REMIC II Regular Interest
A-2A,
REMIC II Regular Interest A-2B, REMIC II Regular Interest A-2C, REMIC II Regular
Interest A-2D, REMIC II Regular Interest M-1, 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 M-10, REMIC II Regular Interest M-11 and the denominator of which
is
the aggregate of the Uncertificated Balances of REMIC II Regular Interest A-1A,
REMIC II Regular Interest A-1B1, REMIC II Regular Interest A-1B2, REMIC II
Regular Interest A-2A, REMIC II Regular Interest A-2B, REMIC II Regular Interest
A-2C, REMIC II Regular Interest A-2D, REMIC II Regular Interest M-1, 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 M-10 and REMIC II Regular Interest
ZZ.
“REMIC
II
Regular Interest”: Any of the separate non-certificated beneficial ownership
interests in REMIC II issued hereunder and designated as a “regular interest” in
REMIC II. Each REMIC II Regular Interest 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. The designations for the respective REMIC II
Regular Interests are 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 A-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 A-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 A-1B1”: 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-1B1 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 A-1B2”: 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-1B2 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 A-2A”: 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-2A 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 A-2B”: 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-2B 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 A-2C”: 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-2C 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 A-2D”: 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-2D 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 IO”: One of the separate non-certificated beneficial ownership
interests in REMIC II issued hereunder and designated as a Regular Interest
in
REMIC II. REMIC II Regular Interest IO shall accrue interest at the related
REMIC II Remittance Rate in effect from time to time and shall not be entitled
to distributions of principal.
“REMIC
II
Regular Interest M-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 M-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 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 II 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 II 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 II 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 M-10”: 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-10 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 XX”: 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 XX 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
Regular Interest IA-SUB”: 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 IA-SUB 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 IA-GRP”: 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 IA-GRP 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 IB-SUB”: 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 IB-SUB 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 IB-GRP”: 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 IB-GRP 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 II-GRP”: 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 II-GRP 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 II-SUB”: 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 II-SUB 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
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
Remittance Rate”: With respect to REMIC II Regular Interest AA, REMIC II Regular
Interest A-1A, REMIC II Regular Interest A-1B1, REMIC II Regular Interest A-1B2,
REMIC II Regular Interest A-2A, REMIC II Regular Interest A-2B, REMIC II Regular
Interest A-2C, REMIC II Regular Interest A-2D, REMIC II Regular Interest M-1,
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 M-10, REMIC II Regular Interest ZZ,
REMIC II Regular Interest IA-SUB, REMIC II Regular Interest IB-SUB, REMIC II
Regular Interest II-SUB and REMIC II Regular Interest XX, 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, REMIC I Regular Interest A-II and REMIC I Regular
Interest A-III, the REMIC I Remittance Rate for each such REMIC I 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-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
III-1-A
through III-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
2
|
I-2-A
through I-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-2-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate REMIC I Remittance
Rate
|
|
|
III-2-A
through III-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate REMIC I Remittance
Rate
|
|
|
I-1-A
|
REMIC
I Remittance Rate
|
|
|
II-1-A
|
REMIC
I Remittance Rate
|
|
|
III-1-A
|
REMIC
I Remittance Rate
|
|
|
3
|
I-3-A
through I-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-3-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
III-3-A
through III-44-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
|
|
|
II-1-A
and II-2-A
|
REMIC
I Remittance Rate
|
|
|
III-1-A
and III-2-A
|
REMIC
I Remittance Rate
|
|
|
4
|
I-4-A
through I-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-4-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
III-4-A
through III-44-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
|
|
|
II-1-A
through II-3-A
|
REMIC
I Remittance Rate
|
|
|
III-1-A
through III-3-A
|
REMIC
I Remittance Rate
|
|
|
5
|
I-5-A
through I-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-5-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
III-5-A
through III-44-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
|
|
|
II-1-A
through II-4-A
|
REMIC
I Remittance Rate
|
|
|
III-1-A
through III-4-A
|
REMIC
I Remittance Rate
|
|
|
6
|
I-6-A
through I-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-6-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
III-6-A
through III-44-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
|
|
|
II-1-A
through II-5-A
|
REMIC
I Remittance Rate
|
|
|
III-1-A
through III-5-A
|
REMIC
I Remittance Rate
|
|
|
7
|
I-7-A
through I-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-7-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
III-7-A
through III-44-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
|
|
|
III-1-A
through III-6-A
|
REMIC
I Remittance Rate
|
|
|
II-1-A
through II-6-A
|
REMIC
I Remittance Rate
|
|
|
8
|
I-8-A
through I-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-8-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
III-8-A
through III-44-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
|
|
|
II-1-A
through II-7-A
|
REMIC
I Remittance Rate
|
|
|
III-1-A
through III-7-A
|
REMIC
I Remittance Rate
|
|
|
9
|
I-9-A
through I-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-9-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
III-9-A
through III-44-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
|
|
|
II-1-A
through II-8-A
|
REMIC
I Remittance Rate
|
|
|
III-1-A
through III-8-A
|
REMIC
I Remittance Rate
|
|
|
10
|
I-10-A
through I-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-10-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
III-10-A
through III-44-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
|
|
|
II-1-A
through II-9-A
|
REMIC
I Remittance Rate
|
|
|
III-1-A
through III-9-A
|
REMIC
I Remittance Rate
|
|
|
11
|
I-11-A
through I-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-11-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
III-11-A
through III-44-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
|
|
|
II-1-A
through II-10-A
|
REMIC
I Remittance Rate
|
|
|
III-1-A
through III-10-A
|
REMIC
I Remittance Rate
|
|
|
12
|
I-12-A
through I-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-12-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
III-12-A
through III-44-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
|
|
|
II-1-A
through II-11-A
|
REMIC
I Remittance Rate
|
|
|
III-1-A
through III-11-A
|
REMIC
I Remittance Rate
|
|
|
13
|
I-13-A
through I-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-13-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
III-13-A
through III-44-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
|
|
|
II-1-A
through II-12-A
|
REMIC
I Remittance Rate
|
|
|
III-1-A
through III-12-A
|
REMIC
I Remittance Rate
|
|
|
14
|
I-14-A
through I-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-14-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
III-14-A
through III-44-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
|
|
|
II-1-A
through II-13-A
|
REMIC
I Remittance Rate
|
|
|
III-1-A
through III-13-A
|
REMIC
I Remittance Rate
|
|
|
15
|
I-15-A
through I-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-15-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
III-15-A
through III-44-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
|
|
|
II-1-A
through II-14-A
|
REMIC
I Remittance Rate
|
|
|
III-1-A
through III-14-A
|
REMIC
I Remittance Rate
|
|
|
16
|
I-16-A
through I-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-16-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
III-16-A
through III-44-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
|
|
|
II-1-A
through II-15-A
|
REMIC
I Remittance Rate
|
|
|
III-1-A
through III-15-A
|
REMIC
I Remittance Rate
|
|
|
17
|
I-17-A
through I-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-17-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
III-17-A
through III-44-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
|
|
|
II-1-A
through II-16-A
|
REMIC
I Remittance Rate
|
|
|
III-1-A
through III-16-A
|
REMIC
I Remittance Rate
|
|
|
18
|
I-18-A
through I-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-18-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
III-18-A
through III-44-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
|
|
|
II-1-A
through II-17-A
|
REMIC
I Remittance Rate
|
|
|
III-1-A
through III-17-A
|
REMIC
I Remittance Rate
|
|
|
19
|
I-19-A
through I-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-19-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
III-19-A
through III-44-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
|
|
|
II-1-A
through II-18-A
|
REMIC
I Remittance Rate
|
|
|
III-1-A
through III-18-A
|
REMIC
I Remittance Rate
|
|
|
20
|
I-20-A
through I-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-20-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
III-20-A
through III-44-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
|
|
|
II-1-A
through II-19-A
|
REMIC
I Remittance Rate
|
|
|
III-1-A
through III-19-A
|
REMIC
I Remittance Rate
|
|
|
21
|
I-21-A
through I-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-21-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
III-21-A
through III-44-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
|
|
|
II-1-A
through II-20-A
|
REMIC
I Remittance Rate
|
|
|
III-1-A
through III-20-A
|
REMIC
I Remittance Rate
|
|
|
22
|
I-22-A
through I-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-22-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
III-22-A
through III-44-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
|
|
|
II-1-A
through II-21-A
|
REMIC
I Remittance Rate
|
|
|
III-1-A
through III-21-A
|
REMIC
I Remittance Rate
|
|
|
23
|
I-23-A
through I-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-23-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
III-23-A
through III-44-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
|
|
|
II-1-A
through II-22-A
|
REMIC
I Remittance Rate
|
|
|
III-1-A
through III-22-A
|
REMIC
I Remittance Rate
|
|
|
24
|
I-24-A
through I-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-24-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
III-24-A
through III-44-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
|
|
|
II-1-A
through II-23-A
|
REMIC
I Remittance Rate
|
|
|
III-1-A
through III-23-A
|
REMIC
I Remittance Rate
|
|
|
25
|
I-25-A
through I-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-25-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
III-25-A
through III-44-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
|
|
|
II-1-A
through II-24-A
|
REMIC
I Remittance Rate
|
|
|
III-1-A
through III-24-A
|
REMIC
I Remittance Rate
|
|
|
26
|
I-26-A
through I-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-26-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
III-26-A
through III-44-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
|
|
|
II-1-A
through II-25-A
|
REMIC
I Remittance Rate
|
|
|
III-1-A
through III-25-A
|
REMIC
I Remittance Rate
|
|
|
27
|
I-27-A
through I-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-27-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
III-27-A
through III-44-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
|
|
|
II-1-A
through II-26-A
|
REMIC
I Remittance Rate
|
|
|
III-1-A
through III-26-A
|
REMIC
I Remittance Rate
|
|
|
28
|
I-28-A
through I-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-28-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
III-28-A
through III-44-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
|
|
|
II-1-A
through II-27-A
|
REMIC
I Remittance Rate
|
|
|
III-1-A
through III-27-A
|
REMIC
I Remittance Rate
|
|
|
29
|
I-29-A
through I-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-29-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
III-29-A
through III-44-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
|
|
|
II-1-A
through II-28-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
III-1-A
through III-28-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
30
|
I-30-A
through I-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-30-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
III-30-A
through III-44-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
|
|
|
II-1-A
through II-29-A
|
REMIC
I Remittance Rate
|
|
|
III-1-A
through III-29-A
|
REMIC
I Remittance Rate
|
|
|
31
|
I-31-A
through I-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-31-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
III-31-A
through III-44-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
|
|
|
II-1-A
through II-30-A
|
REMIC
I Remittance Rate
|
|
|
III-1-A
through III-30-A
|
REMIC
I Remittance Rate
|
|
|
32
|
I-32-A
through I-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-32-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
III-32-A
through III-44-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
|
|
|
II-1-A
through II-31-A
|
REMIC
I Remittance Rate
|
|
|
III-1-A
through III-31-A
|
REMIC
I Remittance Rate
|
|
|
33
|
I-33-A
through I-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-33-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
III-33-A
through III-44-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
|
|
|
II-1-A
through II-32-A
|
REMIC
I Remittance Rate
|
|
|
III-1-A
through III-32-A
|
REMIC
I Remittance Rate
|
|
|
34
|
I-34-A
through I-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-34-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
III-34-A
through III-44-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
|
|
|
II-1-A
through II-33-A
|
REMIC
I Remittance Rate
|
|
|
III-1-A
through III-33-A
|
REMIC
I Remittance Rate
|
|
|
35
|
I-35-A
through I-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-35-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
III-35-A
through III-44-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
|
|
|
II-1-A
through II-34-A
|
REMIC
I Remittance Rate
|
|
|
III-1-A
through III-34-A
|
REMIC
I Remittance Rate
|
|
|
36
|
I-36-A
through I-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-36-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
III-36-A
through III-44-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
|
|
|
II-1-A
through II-35-A
|
REMIC
I Remittance Rate
|
|
|
III-1-A
through III-35-A
|
REMIC
I Remittance Rate
|
|
|
37
|
I-37-A
through I-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-37-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
III-37-A
through III-44-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
|
|
|
II-1-A
through II-36-A
|
REMIC
I Remittance Rate
|
|
|
III-1-A
through III-36-A
|
REMIC
I Remittance Rate
|
|
|
38
|
I-38-A
through I-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-38-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
III-38-A
through III-44-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
|
|
|
II-1-A
through II-37-A
|
REMIC
I Remittance Rate
|
|
|
III-1-A
through III-37-A
|
REMIC
I Remittance Rate
|
|
|
39
|
I-39-A
through I-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-39-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
III-39-A
through III-44-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
|
|
|
II-1-A
through II-38-A
|
REMIC
I Remittance Rate
|
|
|
III-1-A
through III-38-A
|
REMIC
I Remittance Rate
|
|
|
40
|
I-40-A
through I-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-40-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
III-40-A
through III-44-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
|
|
|
II-1-A
through II-39-A
|
REMIC
I Remittance Rate
|
|
|
III-1-A
through III-39-A
|
REMIC
I Remittance Rate
|
|
|
41
|
I-41-A
through I-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-41-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
III-41-A
through III-44-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
|
|
|
II-1-A
through II-40-A
|
REMIC
I Remittance Rate
|
|
|
III-1-A
through III-40-A
|
REMIC
I Remittance Rate
|
|
|
42
|
I-42-A
through I-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-42-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
III-42-A
through III-44-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
|
|
|
II-1-A
through II-41-A
|
REMIC
I Remittance Rate
|
|
|
III-1-A
through III-41-A
|
REMIC
I Remittance Rate
|
|
|
43
|
I-43-A
through I-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-43-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
III-43-A
through III-44-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
|
|
|
II-1-A
through II-42-A
|
REMIC
I Remittance Rate
|
|
|
III-1-A
through III-42-A
|
REMIC
I Remittance Rate
|
|
|
44
|
I-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
|
III-44-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
|
|
|
II-1-A
through II-43-A
|
REMIC
I Remittance Rate
|
|
|
III-1-A
through III-43-A
|
REMIC
I Remittance Rate
|
|
|
thereafter
|
I-1-A
through I-44-A
|
REMIC
I Remittance Rate
|
|
II-1-A
through II-44-A
|
REMIC
I Remittance Rate
|
|
|
III-1-A
through III-44-A
|
REMIC
I Remittance Rate
|
With
respect to REMIC II Regular Interest IA-GRP, 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 1 Regular Interest
for
each such Distribution Date, (x) with respect to REMIC I Group IA Regular
Interests 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 each such REMIC I Regular Interest for each
such
Distribution Date and (y) with respect to REMIC I Group IA Regular Interests
ending with the designation “A”, for each Distribution Date listed below, the
weighted average of the rates listed below for such REMIC I Regular Interests
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-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
2
|
I-2-A
through I-44-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-44-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-44-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-44-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-44-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-44-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-44-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-44-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-44-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-44-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-44-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-44-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-44-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-44-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-44-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-44-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-44-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-44-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-44-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-44-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-44-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-44-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-44-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-44-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-44-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-44-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-44-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-44-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-44-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-44-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-44-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-44-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-44-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-44-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-44-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-44-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-44-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-44-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-44-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-44-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-44-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-44-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
|
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
|
|
|
thereafter
|
I-1-A
through I-44-A
|
REMIC
I Remittance Rate
|
With
respect to REMIC II Regular Interest IB-GRP, a per annum rate (but not less
than
zero) equal to the weighted average of: (w) with respect to REMIC I Regular
Interest A-II, the REMIC I Remittance Rate for such REMIC 1 Regular Interest
for
each such Distribution Date, (x) with respect to REMIC I Group IB Regular
Interests 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 each such REMIC I Regular Interest for each
such
Distribution Date and (y) with respect to REMIC I Group IB Regular Interests
ending with the designation “A”, for each Distribution Date listed below, the
weighted average of the rates listed below for such REMIC I Regular Interests
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
|
II-1-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
2
|
II-2-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
|
REMIC
I Remittance Rate
|
|
|
3
|
II-3-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
and II-2-A
|
REMIC
I Remittance Rate
|
|
|
4
|
II-4-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-3-A
|
REMIC
I Remittance Rate
|
|
|
5
|
II-5-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-4-A
|
REMIC
I Remittance Rate
|
|
|
6
|
II-6-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-5-A
|
REMIC
I Remittance Rate
|
|
|
7
|
II-7-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-6-A
|
REMIC
I Remittance Rate
|
|
|
8
|
II-8-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-7-A
|
REMIC
I Remittance Rate
|
|
|
9
|
II-9-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-8-A
|
REMIC
I Remittance Rate
|
|
|
10
|
II-10-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-9-A
|
REMIC
I Remittance Rate
|
|
|
11
|
II-11-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-10-A
|
REMIC
I Remittance Rate
|
|
|
12
|
II-12-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-11-A
|
REMIC
I Remittance Rate
|
|
|
13
|
II-13-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-12-A
|
REMIC
I Remittance Rate
|
|
|
14
|
II-14-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-13-A
|
REMIC
I Remittance Rate
|
|
|
15
|
II-15-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-14-A
|
REMIC
I Remittance Rate
|
|
|
16
|
II-16-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-15-A
|
REMIC
I Remittance Rate
|
|
|
17
|
II-17-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-16-A
|
REMIC
I Remittance Rate
|
|
|
18
|
II-18-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-17-A
|
REMIC
I Remittance Rate
|
|
|
19
|
II-19-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-18-A
|
REMIC
I Remittance Rate
|
|
|
20
|
II-20-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-19-A
|
REMIC
I Remittance Rate
|
|
|
21
|
II-21-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-20-A
|
REMIC
I Remittance Rate
|
|
|
22
|
II-22-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-21-A
|
REMIC
I Remittance Rate
|
|
|
23
|
II-23-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-22-A
|
REMIC
I Remittance Rate
|
|
|
24
|
II-24-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-23-A
|
REMIC
I Remittance Rate
|
|
|
25
|
II-25-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-24-A
|
REMIC
I Remittance Rate
|
|
|
26
|
II-26-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-25-A
|
REMIC
I Remittance Rate
|
|
|
27
|
II-27-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-26-A
|
REMIC
I Remittance Rate
|
|
|
28
|
II-28-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-27-A
|
REMIC
I Remittance Rate
|
|
|
29
|
II-29-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-28-A
|
REMIC
I Remittance Rate
|
|
|
30
|
II-30-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-29-A
|
REMIC
I Remittance Rate
|
|
|
31
|
II-31-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-30-A
|
REMIC
I Remittance Rate
|
|
|
32
|
II-32-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-31-A
|
REMIC
I Remittance Rate
|
|
|
33
|
II-33-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-32-A
|
REMIC
I Remittance Rate
|
|
|
34
|
II-34-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-33-A
|
REMIC
I Remittance Rate
|
|
|
35
|
II-35-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-34-A
|
REMIC
I Remittance Rate
|
|
|
36
|
II-36-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-35-A
|
REMIC
I Remittance Rate
|
|
|
37
|
II-37-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-36-A
|
REMIC
I Remittance Rate
|
|
|
38
|
II-38-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-37-A
|
REMIC
I Remittance Rate
|
|
|
39
|
II-39-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-38-A
|
REMIC
I Remittance Rate
|
|
|
40
|
II-40-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-39-A
|
REMIC
I Remittance Rate
|
|
|
41
|
II-41-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-40-A
|
REMIC
I Remittance Rate
|
|
|
42
|
II-42-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-41-A
|
REMIC
I Remittance Rate
|
|
|
43
|
II-43-A
through II-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-42-A
|
REMIC
I Remittance Rate
|
|
|
44
|
II-44
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
II-1-A
through II-43-A
|
REMIC
I Remittance Rate
|
|
|
thereafter
|
II-1-A
through II-44-A
|
REMIC
I Remittance Rate
|
With
respect to REMIC II Regular Interest II-GRP, a per annum rate (but not less
than
zero) equal to the weighted average of: (w) with respect to REMIC I Regular
Interest A-II, the REMIC I Remittance Rate for such REMIC 1 Regular Interest
for
each such Distribution Date, (x) with respect to REMIC I Group II Regular
Interests 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 each such REMIC I Regular Interest for each
such
Distribution Date and (y) with respect to REMIC I Group II Regular Interests
ending with the designation “A”, for each Distribution Date listed below, the
weighted average of the rates listed below for such REMIC I Regular Interests
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
|
III-1-A
through III-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
2
|
III-2-A
through III-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
III-1-A
|
REMIC
I Remittance Rate
|
|
|
3
|
III-3-A
through III-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
III-1-A
and III-2-A
|
REMIC
I Remittance Rate
|
|
|
4
|
III-4-A
through III-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
III-1-A
through III-3-A
|
REMIC
I Remittance Rate
|
|
|
5
|
III-5-A
through III-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
III-1-A
through III-4-A
|
REMIC
I Remittance Rate
|
|
|
6
|
III-6-A
through III-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
III-1-A
through III-5-A
|
REMIC
I Remittance Rate
|
|
|
7
|
III-7-A
through III-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
III-1-A
through III-6-A
|
REMIC
I Remittance Rate
|
|
|
8
|
III-8-A
through III-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
III-1-A
through III-7-A
|
REMIC
I Remittance Rate
|
|
|
9
|
III-9-A
through III-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
III-1-A
through III-8-A
|
REMIC
I Remittance Rate
|
|
|
10
|
III-10-A
through III-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
III-1-A
through III-9-A
|
REMIC
I Remittance Rate
|
|
|
11
|
III-11-A
through III-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
III-1-A
through III-10-A
|
REMIC
I Remittance Rate
|
|
|
12
|
III-12-A
through III-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
III-1-A
through III-11-A
|
REMIC
I Remittance Rate
|
|
|
13
|
III-13-A
through III-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
III-1-A
through III-12-A
|
REMIC
I Remittance Rate
|
|
|
14
|
III-14-A
through III-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
III-1-A
through III-13-A
|
REMIC
I Remittance Rate
|
|
|
15
|
III-15-A
through III-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
III-1-A
through III-14-A
|
REMIC
I Remittance Rate
|
|
|
16
|
III-16-A
through III-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
III-1-A
through III-15-A
|
REMIC
I Remittance Rate
|
|
|
17
|
III-17-A
through III-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
III-1-A
through III-16-A
|
REMIC
I Remittance Rate
|
|
|
18
|
III-18-A
through III-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
III-1-A
through III-17-A
|
REMIC
I Remittance Rate
|
|
|
19
|
III-19-A
through III-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
III-1-A
through III-18-A
|
REMIC
I Remittance Rate
|
|
|
20
|
III-20-A
through III-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
III-1-A
through III-19-A
|
REMIC
I Remittance Rate
|
|
|
21
|
III-21-A
through III-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
III-1-A
through III-20-A
|
REMIC
I Remittance Rate
|
|
|
22
|
III-22-A
through III-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
III-1-A
through III-21-A
|
REMIC
I Remittance Rate
|
|
|
23
|
III-23-A
through III-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
III-1-A
through III-22-A
|
REMIC
I Remittance Rate
|
|
|
24
|
III-24-A
through III-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
III-1-A
through III-23-A
|
REMIC
I Remittance Rate
|
|
|
25
|
III-25-A
through III-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
III-1-A
through III-24-A
|
REMIC
I Remittance Rate
|
|
|
26
|
III-26-A
through III-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
III-1-A
through III-25-A
|
REMIC
I Remittance Rate
|
|
|
27
|
III-27-A
through III-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
III-1-A
through III-26-A
|
REMIC
I Remittance Rate
|
|
|
28
|
III-28-A
through III-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
III-1-A
through III-27-A
|
REMIC
I Remittance Rate
|
|
|
29
|
III-29-A
through III-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
III-1-A
through III-28-A
|
REMIC
I Remittance Rate
|
|
|
30
|
III-30-A
through III-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
III-1-A
through III-29-A
|
REMIC
I Remittance Rate
|
|
|
31
|
III-31-A
through III-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
III-1-A
through III-30-A
|
REMIC
I Remittance Rate
|
|
|
32
|
III-32-A
through III-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
III-1-A
through III-31-A
|
REMIC
I Remittance Rate
|
|
|
33
|
III-33-A
through III-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
III-1-A
through III-32-A
|
REMIC
I Remittance Rate
|
|
|
34
|
III-34-A
through III-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
III-1-A
through III-33-A
|
REMIC
I Remittance Rate
|
|
|
35
|
III-35-A
through III-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
III-1-A
through III-34-A
|
REMIC
I Remittance Rate
|
|
|
36
|
III-36-A
through III-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
III-1-A
through III-35-A
|
REMIC
I Remittance Rate
|
|
|
37
|
III-37-A
through III-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
III-1-A
through III-36-A
|
REMIC
I Remittance Rate
|
|
|
38
|
III-38-A
through III-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
III-1-A
through III-37-A
|
REMIC
I Remittance Rate
|
|
|
39
|
III-39-A
through III-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
III-1-A
through III-38-A
|
REMIC
I Remittance Rate
|
|
|
40
|
III-40-A
through III-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
III-1-A
through III-39-A
|
REMIC
I Remittance Rate
|
|
|
41
|
III-41-A
through III-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
III-1-A
through III-40-A
|
REMIC
I Remittance Rate
|
|
|
42
|
III-42-A
through III-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
III-1-A
through III-41-A
|
REMIC
I Remittance Rate
|
|
|
43
|
III-43-A
through III-44-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
III-1-A
through III-42-A
|
REMIC
I Remittance Rate
|
|
|
44
|
III-44
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC I Remittance
Rate
|
|
III-1-A
through III-43-A
|
REMIC
I Remittance Rate
|
|
|
thereafter
|
III-1-A
through III-44-A
|
REMIC
I Remittance Rate
|
With
respect to REMIC II Regular Interest IO, and (i) the first Distribution Date
through the 44th Distribution Date, the excess of (x) the weighted average
of
the REMIC I Remittance Rates for REMIC I 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
Sub WAC Allocation Percentage”: 50% of any amount payable or loss attributable
from the Mortgage Loans, which shall be allocated to REMIC II Regular Interest
IA-SUB, REMIC II Regular Interest IA-GRP, REMIC II Regular Interest IB-SUB,
REMIC II Regular Interest IB-GRP, REMIC II Regular Interest II-SUB, REMIC II
Regular Interest II-GRP and REMIC II Regular Interest XX.
“REMIC
II
Subordinated Balance Ratio”: The ratio among the Uncertificated Balances of each
REMIC II Regular Interest ending with the designation “SUB,”, equal to the ratio
between, with respect to each such REMIC II Regular Interest, the excess of
(x)
the aggregate Stated Principal Balance of the Group IA Mortgage Loans, Group
IB
Mortgage Loans or Group II Mortgage Loans, as applicable over (y) the current
Certificate Principal Balance of related Class A Certificates.
“REMIC
II
Required Overcollateralization Amount”: 0.50% 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
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.
“REMIC
Regular Interest”: Any REMIC I Regular Interest or REMIC II Regular
Interest.
“REMIC
Remittance Rate”: The REMIC I Remittance Rate or the REMIC II Remittance
Rate.
“Remittance
Report”: A report by each Servicer pursuant to Section 5.03(a) of this
Agreement or by each Interim Servicer pursuant to the related Interim Servicing
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
each Servicer in respect of an REO Property pursuant to Section 3.21 of
this Agreement or by each Interim Servicer pursuant to the related Interim
Servicing 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 or the related
Interim Servicer pursuant to the related Interim Servicing 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, or by the related Interim
Servicer pursuant to the Servicing 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) 3.25% 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)
3.25% 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 and Mezzanine 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: (i) a detached one-family dwelling, (ii) a
detached two- to four-family dwelling, (iii) a one-family dwelling unit in
a
▇▇▇▇▇▇ ▇▇▇ eligible condominium project, (iv) a manufactured home, or (v) a
detached one-family dwelling in a planned unit development, none of which is
a
co-operative or mobile home.
“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”: A written certification signed by an officer of the Master
Servicer that complies with (i) the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, as amended
from
time to time, and (ii) Exchange Act Rules 13a-14(d) and 15d-14(d), as in effect
from time to time; provided that if, after the Closing Date (a) the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 is amended, (b) the Rules referred to in clause
(ii)
are modified or superceded by any subsequent statement, rule or regulation
of
the Commission or any statement of a division thereof, or (c) any future
releases, rules and regulations are published by the Commission from time to
time pursuant to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, which in any such case affects
the form or substance of the required certification and results in the required
certification being, in the reasonable judgment of the Master Servicer,
materially more onerous that then form of the required certification as of
the
Closing Date, the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification shall be as agreed to by the
Master Servicer, the Depositor and the Sponsor following a negotiation in good
faith to determine how to comply with any such new requirements.
“Scheduled
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.
“Sequential
Trigger Event”: A Sequential Trigger Event is in effect on any Distribution Date
if, before the 25th Distribution Date, the aggregate amount of Realized Losses
incurred since the Cut-off Date through the last day of the related Due Period
(after giving effect to scheduled payments received or advanced on or before
the
related Determination Date and Principal Prepayments received during the related
Prepayment Period) divided by the sum of the aggregate Stated Principal Balance
of the Mortgage Loans as of the Cut-off Date exceeds 1.70%, or if, on or after
the 25th Distribution Date, a Trigger Event is in effect.
“Servicer”:
▇▇▇▇▇ Fargo or Ocwen, or any successor thereto appointed hereunder in connection
with the servicing and administration of the related Mortgage
Loans.
“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) (A) ▇▇▇▇▇
Fargo, on or before the close of business on the 22nd
day of
the month in which such Distribution Date occurs and (B) 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 for such month shall be the Business Day
immediately preceding such 22nd day and (ii) each Interim Servicer, as set
forth
in the related Interim Servicing Agreement.
“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 or by the related
Interim Servicer pursuant to the related Interim Servicing Agreement, as
applicable, with such additions, deletions and modifications as agreed to by
the
Master Servicer, the Securities Administrator and the related Servicer or the
related Interim 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 Item 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)
a
Servicer or an Interim Servicer with respect to any Mortgage Loans that were
transferred to such Servicer or Interim Servicer prior to the Cut-off Date
and/or (b) the Depositor with respect to any Mortgage Loans that were
transferred to a Servicer after the Cut-off Date) by a Servicer or an Interim
Servicer in connection with a default, delinquency or other unanticipated event
by such Servicer or Interim Servicer in the performance of its servicing
obligations, including, but not limited to, the cost of (i) the 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 or the related Interim Servicer to perform
its obligations under this Agreement or the related Interim Servicing Agreement.
Servicing Advances also include any reasonable “out-of-pocket” cost and expenses
(including legal fees) incurred by the related Servicer or the related Interim
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 or the related Interim
Servicing Agreement. Neither the Servicers nor the Interim Servicers shall
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
or
the related Interim Servicer with respect to any Mortgage Loans that were
transferred to the related Servicer or the related Interim 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, as applicable,
to the Master Servicer and, if such schedule is provided by the Depositor,
to
the related Servicer, on the earlier of the date on which the related Servicer
or the related Interim Servicer seeks reimbursement for a Servicing Advance
made
by the related Servicer or the related Interim Servicer or five (5) Business
Days following the Servicing Transfer Date, 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.
“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, without regard to any threshold referenced therein.
“Servicing
Officer”: Any officer of the related Servicer, the related Interim 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, the
related Interim Servicer or the Master Servicer to the Trustee, the Master
Servicer (in the case of a Servicer), the Securities Administrator, the Insurer
and the Depositor on the Closing Date, as such list may from time to time be
amended.
“Servicing
Transfer Date”: April 1, 2006.
“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.
“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 Interim Servicer, the related Servicer or a successor to such
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 or the related
Interim Servicer as recoveries of principal in accordance with the provisions
of
Section 3.13 of this Agreement or pursuant to the related Interim Servicing
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 Interim Servicer, the related
Servicer or a successor to such 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 March 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 holders of the
Certificates then entitled to distributions of principal on such Distribution
Date), is greater than or equal to approximately 47.70% and (ii) the first
Distribution Date on which the aggregate Certificate Principal Balance of the
Class A Certificates has been reduced to zero.
“Subcontractor”:
Means any vendor, subcontractor or other Person that is not responsible for
the
overall servicing of Mortgage Loans but performs one or more discrete functions
identified in Item 1122(d) of Regulation AB (without regard to any threshold
percentage specified therein) with respect to Mortgage Loans under the direction
or authority of any Servicer (or a Sub-Servicer of any Servicer), the Master
Servicer, the Trustee, the Custodian or the Securities
Administrator.
“Subordinate
Certificates”: Collectively, the Mezzanine 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, after the liquidation or disposition
of
such defaulted Mortgage Loan, net of any amounts reimbursable to the Servicer
related to such Mortgage Loan or REO Property.
“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 or the Trustee, 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 or the Servicing Agreement, as
applicable.
“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 February 28,
2006, between ▇▇▇▇▇ Fargo Bank, National Association, 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.
The Securities Administrator will provide a copy of the Swap Agreement to any
Certificateholder upon request.
“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:
|
From
and including:
|
To
but excluding:
|
Swap
Notional Amount ($):
|
|
2/28/2006
|
3/25/2006
|
2,534,251,920
|
|
3/25/2006
|
4/25/2006
|
2,493,691,324
|
|
4/25/2006
|
5/25/2006
|
2,446,382,042
|
|
5/25/2006
|
6/25/2006
|
2,392,464,043
|
|
6/25/2006
|
7/25/2006
|
2,332,132,382
|
|
7/25/2006
|
8/25/2006
|
2,265,639,630
|
|
8/25/2006
|
9/25/2006
|
2,193,314,541
|
|
9/25/2006
|
10/25/2006
|
2,115,631,836
|
|
10/25/2006
|
11/25/2006
|
2,033,420,756
|
|
11/25/2006
|
12/25/2006
|
1,948,806,816
|
|
12/25/2006
|
1/25/2007
|
1,867,469,262
|
|
1/25/2007
|
2/25/2007
|
1,789,533,338
|
|
2/25/2007
|
3/25/2007
|
1,714,839,674
|
|
3/25/2007
|
4/25/2007
|
1,643,272,213
|
|
4/25/2007
|
5/25/2007
|
1,574,699,471
|
|
5/25/2007
|
6/25/2007
|
1,508,995,570
|
|
6/25/2007
|
7/25/2007
|
1,446,010,937
|
|
7/25/2007
|
8/25/2007
|
1,385,265,027
|
|
8/25/2007
|
9/25/2007
|
1,325,021,243
|
|
9/25/2007
|
10/25/2007
|
1,261,183,478
|
|
10/25/2007
|
11/25/2007
|
1,168,982,172
|
|
11/25/2007
|
12/25/2007
|
992,391,117
|
|
12/25/2007
|
1/25/2008
|
843,921,997
|
|
1/25/2008
|
2/25/2008
|
723,404,776
|
|
2/25/2008
|
3/25/2008
|
637,341,884
|
|
3/25/2008
|
4/25/2008
|
606,763,495
|
|
4/25/2008
|
5/25/2008
|
579,100,322
|
|
5/25/2008
|
6/25/2008
|
552,717,699
|
|
6/25/2008
|
7/25/2008
|
527,573,554
|
|
7/25/2008
|
8/25/2008
|
503,590,654
|
|
8/25/2008
|
9/25/2008
|
480,714,380
|
|
9/25/2008
|
10/25/2008
|
458,893,333
|
|
10/25/2008
|
11/25/2008
|
438,078,298
|
|
11/25/2008
|
12/25/2008
|
418,222,109
|
|
12/25/2008
|
1/25/2009
|
399,280,584
|
|
1/25/2009
|
2/25/2009
|
381,210,364
|
|
2/25/2009
|
3/25/2009
|
363,970,751
|
|
3/25/2009
|
4/25/2009
|
347,523,129
|
|
4/25/2009
|
5/25/2009
|
331,830,635
|
|
5/25/2009
|
6/25/2009
|
316,858,088
|
|
6/25/2009
|
7/25/2009
|
302,572,171
|
|
7/25/2009
|
8/25/2009
|
288,940,786
|
|
8/25/2009
|
9/25/2009
|
275,933,508
|
|
9/25/2009
|
10/25/2009
|
263,521,375
|
“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 The Royal Bank of Scotland plc.
“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.
“Targeted
Credit Enhancement Test”: With respect to any Distribution Date and (i) the
Class A-1A Certificates, shall be satisfied if on such Distribution Date the
percentage obtained by dividing the Certificate Principal Balance of the Class
A-1A Certificates by the aggregate principal balance of the Group IA Mortgage
Loans is equal to or greater than 52.30%, (ii) the Class A-1B1 Certificates
and
Class A-1B2 Certificates, shall be satisfied if on such Distribution Date the
percentage obtained by dividing the sum of the Certificate Principal Balances
of
the Class A-1B1 Certificates and Class A-1B2 Certificates by the aggregate
principal balance of the Group IB Mortgage Loans is equal to or greater than
52.30% and (iii) the Class A-2 Certificates, shall be satisfied if on such
Distribution Date the percentage obtained by dividing the sum of the Certificate
Principal Balances of the Class A-2 Certificates by the aggregate principal
balance of the Group II Mortgage Loans is equal to or greater than
52.30%.
“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.
“Transaction
Documents”: Means this Agreement and the Insurance Agreement.
“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 34.00% of the Credit Enhancement
Percentage 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
|
|
March
2008 to February 2009
|
1.70%
plus 1/12 of 2.10% for each month thereafter
|
|
March
2009 to February 2010
|
3.80%
plus 1/12 of 2.15% for each month thereafter
|
|
March
2010 to February 2011
|
5.95%
plus 1/12 of 1.70% for each month thereafter
|
|
March
2011 to February 2012
|
7.65%
plus 1/12 of 0.45% for each month thereafter
|
|
March
2012 and thereafter
|
8.10%
|
“Trust”:
ACE Securities Corp., Home Equity Loan Trust, Series 2006-HE1, 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 Interest 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 related 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 4.19 of this Agreement or
pursuant to the Interim Servicing Agreements 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.
“Uncertificated
Notional Amount”: 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 I-44-A, II-1-A through II-44-A and III-1-A through III-44-A
|
|
2
|
I-2-A
through I-44-A, II-2-A through II-44-A and III-2-A through III-44-A
|
|
3
|
I-3-A
through I-44-A, II-3-A through II-44-A and III-3-A through III-44-A
|
|
4
|
I-4-A
through I-44-A, II-4-A through II-44-A and III-4-A through III-44-A
|
|
5
|
I-5-A
through I-44-A, II-5-A through II-44-A and III-5-A through III-44-A
|
|
6
|
I-6-A
through I-44-A, II-6-A through II-44-A and III-6-A through III-44-A
|
|
7
|
I-7-A
through I-44-A, II-7-A through II-44-A and III-7-A through III-44-A
|
|
8
|
I-8-A
through I-44-A, II-8-A through II-44-A and III-8-A through III-44-A
|
|
9
|
I-9-A
through I-44-A, II-9-A through II-44-A and III-9-A through III-44-A
|
|
10
|
I-10-A
through I-44-A, II-10-A through II-44-A and III-10-A through III-44-A
|
|
11
|
I-11-A
through I-44-A, II-11-A through II-44-A and III-11-A through III-44-A
|
|
12
|
I-12-A
through I-44-A, II-12-A through II-44-A and III-12-A through III-44-A
|
|
13
|
I-13-A
through I-44-A, II-13-A through II-44-A and III-13-A through III-44-A
|
|
14
|
I-14-A
through I-44-A, II-14-A through II-44-A and III-14-A through III-44-A
|
|
15
|
I-15-A
through I-44-A, II-15-A through II-44-A and III-15-A through III-44-A
|
|
16
|
I-16-A
through I-44-A, II-16-A through II-44-A and III-16-A through III-44-A
|
|
17
|
I-17-A
through I-44-A, II-17-A through II-44-A and III-17-A through III-44-A
|
|
18
|
I-18-A
through I-44-A, II-18-A through II-44-A and III-18-A through III-44-A
|
|
19
|
I-19-A
through I-44-A, II-19-A through II-44-A and III-19-A through III-44-A
|
|
20
|
I-20-A
through I-44-A, II-20-A through II-44-A and III-20-A through III-44-A
|
|
21
|
I-21-A
through I-44-A, II-21-A through II-44-A and III-21-A through III-44-A
|
|
22
|
I-22-A
through I-44-A, II-22-A through II-44-A and III-22-A through III-44-A
|
|
23
|
I-23-A
through I-44-A, II-23-A through II-44-A and III-23-A through III-44-A
|
|
24
|
I-24-A
through I-44-A, II-24-A through II-44-A and III-24-A through III-44-A
|
|
25
|
I-25-A
through I-44-A, II-25-A through II-44-A and III-25-A through III-44-A
|
|
26
|
I-26-A
through I-44-A, II-26-A through II-44-A and III-26-A through III-44-A
|
|
27
|
I-27-A
through I-44-A, II-27-A through II-44-A and III-27-A through III-44-A
|
|
28
|
I-28-A
through I-44-A, II-28-A through II-44-A and III-28-A through III-44-A
|
|
29
|
I-29-A
through I-44-A, II-29-A through II-44-A and III-29-A through III-44-A
|
|
30
|
I-30-A
through I-44-A, II-30-A through II-44-A and III-30-A through III-44-A
|
|
31
|
I-31-A
through I-44-A, II-31-A through II-44-A and III-31-A through III-44-A
|
|
32
|
I-32-A
through I-44-A, II-32-A through II-44-A and III-32-A through III-44-A
|
|
33
|
I-33-A
through I-44-A, II-33-A through II-44-A and III-33-A through III-44-A
|
|
34
|
I-34-A
through I-44-A, II-34-A through II-44-A and III-34-A through III-44-A
|
|
35
|
I-35-A
through I-44-A, II-35-A through II-44-A and III-35-A through III-44-A
|
|
36
|
I-36-A
through I-44-A, II-36-A through II-44-A and III-36-A through III-44-A
|
|
37
|
I-37-A
through I-44-A, II-37-A through II-44-A and III-37-A through III-44-A
|
|
38
|
I-38-A
through I-44-A, II-38-A through II-44-A and III-38-A through III-44-A
|
|
39
|
I-39-A
through I-44-A, II-39-A through II-44-A and III-39-A through III-44-A
|
|
40
|
I-40-A
through I-44-A, II-40-A through II-44-A and III-40-A through III-44-A
|
|
41
|
I-41-A
through I-44-A, II-41-A through II-44-A and III-41-A through III-44-A
|
|
42
|
I-42-A
through I-44-A, II-42-A through II-44-A and III-42-A through III-44-A
|
|
43
|
I-43-A
through I-44-A, II-43-A through II-44-A and III-43-A through III-44-A
|
|
44
|
I-44-A,
II-44-A and III-44-A
|
|
thereafter
|
$0.00
|
With
respect to the REMIC III Regular Interest IO and any Distribution Date, an
amount equal to the Uncertificated Notional Amount of the REMIC II Regular
Interest IO. With respect to the Class IO Interest and any Distribution Date,
an
amount equal to the Uncertificated Notional Amount of the REMIC III Regular
Interest IO.
“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 ▇▇▇▇▇▇ Mae 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 ▇▇▇▇▇▇ ▇▇▇
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. Notwithstanding any of the foregoing, unless an Insurer
Default is continuing, on any date on which any Insured Certificates are
outstanding, or any amounts are owed to the Insurer under this Agreement, the
Insurer will have all Voting Rights of the Insured Certificates. So long as
the
Insurer has the Voting Rights pursuant to the preceding sentence, the reference
to holders of the Class A-1B2 Certificates shall be deemed to refer to the
Insurer.
“▇▇▇▇▇
Fargo”: Either (i) ▇▇▇▇▇ Fargo Bank, National Association in its capacity as a
Servicer or any successor thereto appointed hereunder in connection with the
servicing and administration of the ▇▇▇▇▇ Fargo Mortgage Loans or (ii) ▇▇▇▇▇
Fargo Bank, National Association in its capacity as a Custodian under the ▇▇▇▇▇
Fargo Custodial Agreement or any successor thereto.
“▇▇▇▇▇
Fargo Custodial Agreement”: The Custodial Agreement dated as of February 1,
2006, among the Trustee, ▇▇▇▇▇ Fargo and the Servicers, as may be amended or
supplemented from time to time.
“▇▇▇▇▇
Fargo Mortgage Loans”: The Mortgage Loans being serviced by ▇▇▇▇▇ Fargo pursuant
to the terms of this Agreement as specified on the Mortgage Loan Schedule (which
shall include the Fremont Mortgage Loans, the GreenPoint Mortgage Loans and
the
New Century Mortgage Loans on and after the Servicing Transfer
Date).
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 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 related Servicer pursuant to
Section 3.22 of this Agreement, by the related Interim Servicer pursuant to
the related Interim Servicing Agreement, or by the Master Servicer pursuant
to
Section 4.19 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 M-10
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 Mezzanine Certificates
and Net WAC Rate Carryover Amounts paid to the Class A Certificates and the
Mezzanine 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
Group IA Regular Interests for any Distribution Date, the aggregate amount
of
any Prepayment Interest Shortfalls (to the extent not covered by payments by
the
related Servicer pursuant to Section 3.22 of this Agreement, by the related
Interim Servicer pursuant to the related Interim Servicing Agreement or the
Master Servicer pursuant to Section 4.19 of this Agreement) and any Relief
Act Interest Shortfalls incurred in respect of Group IA Mortgage Loans shall
be
allocated first, to REMIC I Regular Interest A-I and to the REMIC I Group IA
Regular Interests ending with the designation “B”, pro
rata
based
on, and to the extent of, one month’s interest at the then applicable respective
REMIC I Remittance Rates on the respective Uncertificated Principal Balances
of
each such REMIC I Regular Interest, and then, to REMIC I Group IA Regular
Interests ending with the designation “A”, pro rata based on, and to the extent
of, one month’s interest at the then applicable respective 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
I
Group IB Regular Interests for any Distribution Date, the aggregate amount
of
any Prepayment Interest Shortfalls (to the extent not covered by payments by
the
related Servicer pursuant to Section 3.22 of this Agreement, by the related
Interim Servicer pursuant to the related Interim Servicing Agreement or the
Master Servicer pursuant to Section 4.19 of this Agreement) and any Relief
Act Interest Shortfalls incurred in respect of Group IB Mortgage Loans shall
be
allocated first, to REMIC I Regular Interest A-II and to the REMIC I Group
IB
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 Principal Balances
of
each such REMIC I Regular Interest , and then, to REMIC I Group IB 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
I
Group II Regular Interests for any Distribution Date, the aggregate amount
of
any Prepayment Interest Shortfalls (to the extent not covered by payments by
the
related Servicer pursuant to Section 3.22 of this Agreement, by the related
Interim Servicer pursuant to the related Interim Servicing Agreement or the
Master Servicer pursuant to Section 4.19 of this Agreement) and any Relief
Act Interest Shortfalls incurred in respect of Group II Mortgage Loans shall
be
allocated first, to REMIC I Regular Interest A-III and to the REMIC I Group
II
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 Principal Balances
of
each such REMIC I Regular Interest, and then, to REMIC I Group II 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:
(A) The
REMIC
II Marker Allocation Percentage of the aggregate amount of any Prepayment
Interest Shortfalls (to the extent not covered by payments by the related
Servicer pursuant to Section 3.22 of this Agreement, by the related Interim
Servicer pursuant to the related Interim Servicing Agreement or the Master
Servicer pursuant to Section 4.19 of this Agreement) and the REMIC II
Marker Allocation Percentage of 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-1A, REMIC II Regular
Interest A-1B1, REMIC II Regular Interest A-1B2, REMIC II Regular Interest
A-2A,
REMIC II Regular Interest A-2B, REMIC II Regular Interest A-2C, REMIC II Regular
Interest A-2D, REMIC II Regular Interest M-1, 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 M-10, REMIC II Regular Interest M-11 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; and
(B) The
REMIC
II Sub WAC Allocation Percentage of the aggregate amount of any Prepayment
Interest Shortfalls (to the extent not covered by payments by the related
Servicer pursuant to Section 3.22 of this Agreement, by the related Interim
Servicer pursuant to the related Interim Servicing Agreement or by the Master
Servicer pursuant to Section 4.19 of this Agreement) and the REMIC II Sub
WAC Allocation Percentage of any Relief Act Interest Shortfalls incurred in
respect of the Mortgage Loans for any Distribution Date shall be allocated
first, to Uncertificated Interest payable to REMIC II Regular Interest IA-SUB,
REMIC II Regular Interest IA-GRP, REMIC II Regular Interest IB-SUB, REMIC II
Regular Interest IB-GRP, REMIC II Regular Interest II-SUB, REMIC II Regular
Interest II-GRP and REMIC II Regular Interest XX, 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, the Assignment Agreements and the Interim
Servicing Agreements (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, the Servicers and the Interim
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). Copies of the Mortgage Loan Purchase Agreement, the Assignment Agreements
and the Interim Servicing Agreements are attached hereto.
In
connection with such transfer and assignment, the Depositor does hereby deliver
to, and deposit with the applicable 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
Custodial Agreements, the Custodians will be required to review such Mortgage
Loan Documents and deliver to the Trustee, the Depositor, each Servicer, the
Sponsor and the Insurer certifications (in the forms attached to the 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 or under the Servicing Agreement, as applicable.
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))
or a
“high risk home loan” under the Illinois High Risk Home Loan Act, effective as
of January 1, 2004, 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) or a “high risk home loan” under the
Illinois High Risk Home Loan Act, effective as of January 1, 2004.
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
and the Insurer.
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 and
the
Insurer, 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 or the
related Interim Servicer for deposit in the related Collection Account or the
related Custodial Account, as applicable, the related and the Trustee, upon
receipt of written certification from such Servicer or Interim Servicer of
such
deposit, shall release or cause the applicable Custodian (upon receipt of a
request for release in the form attached to the respective 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) of this Agreement. 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, the Certificateholders and the Insurer.
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
and the Insurer 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 or the Insurer, 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 or the Insurer 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, the Insurer 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) ▇▇▇▇▇
Fargo in its capacity as Servicer of the ▇▇▇▇▇ Fargo Mortgage Loans hereby
represents, warrants and covenants to the Master Servicer, the Securities
Administrator, the Depositor, the Insurer 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) ▇▇▇▇▇
Fargo 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 ▇▇▇▇▇ Fargo in any state in which a Mortgaged
Property related to a ▇▇▇▇▇ Fargo 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 ▇▇▇▇▇ Fargo Mortgage Loan and
to
service the ▇▇▇▇▇ Fargo Mortgage Loans in accordance with the terms of this
Agreement;
(ii) ▇▇▇▇▇
Fargo 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. ▇▇▇▇▇ Fargo 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 ▇▇▇▇▇ Fargo, enforceable against it
in
accordance with its terms, except as the enforceability thereof may be limited
by insolvency, liquidation, conservatorship and other similar laws administered
by the FDIC affecting the enforcement of contract obligations of insured
banks;
(iii) The
execution and delivery of this Agreement by ▇▇▇▇▇ Fargo, the servicing of the
▇▇▇▇▇ Fargo Mortgage Loans by ▇▇▇▇▇ Fargo hereunder, the consummation by ▇▇▇▇▇
Fargo 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
▇▇▇▇▇ Fargo and will not (A) result in a breach of any term or provision of
the
charter or by-laws of ▇▇▇▇▇ Fargo 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 ▇▇▇▇▇ Fargo is a party or by
which it may be bound, or any statute, order or regulation applicable to ▇▇▇▇▇
Fargo of any court, regulatory body, administrative agency or governmental
body
having jurisdiction over ▇▇▇▇▇ Fargo; and ▇▇▇▇▇ Fargo 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 ▇▇▇▇▇ Fargo’s knowledge,
would in the future materially and adversely affect, (x) the ability of ▇▇▇▇▇
Fargo to perform its obligations as Servicer of the ▇▇▇▇▇ Fargo Mortgage Loans
under this Agreement, (y) the business, operations, financial condition,
properties or assets of ▇▇▇▇▇ Fargo taken as a whole or (z) the legality,
validity or enforceability of this Agreement;
(iv) ▇▇▇▇▇
Fargo 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 ▇▇▇▇▇ Fargo that would materially and adversely
affect the execution, delivery or enforceability of this Agreement or the
ability of ▇▇▇▇▇ Fargo to service the ▇▇▇▇▇ Fargo 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, ▇▇▇▇▇
Fargo
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 ▇▇▇▇▇ Fargo 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 ▇▇▇▇▇ Fargo
of,
or compliance by ▇▇▇▇▇ Fargo 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) ▇▇▇▇▇
Fargo 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) ▇▇▇▇▇
Fargo 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 ▇▇▇▇▇ Fargo Mortgage Loans that are registered with MERS; and
(x) ▇▇▇▇▇
Fargo 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, the Insurer 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:
(xi) 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;
(xii) 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;
(xiii) 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;
(xiv) 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;
(xv) 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;
(xvi) 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;
(xvii) 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;
(xviii) 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;
(xix) 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
(xx) 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)(x) 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.
(c)
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 Custodians and shall inure to the benefit of the Trustee,
the Master Servicer, the Securities Administrator, the Depositor, the
Certificateholders and the Insurer. 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
or
the Insurer, the party discovering such breach shall give prompt written notice
(but in no event later than two (2) Business Days following such discovery)
to
the Trustee. Subject to Section 8.01, unless such breach shall not be
susceptible of cure within ninety (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
Insurer, 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 applicable 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 respective 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; Acceptance of 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
rights of the Holder of the Class R-II Interest and REMIC II (as holder of
the
REMIC I Regular Interests) to receive distributions from the proceeds of REMIC
II in respect of the Class R-II Interest and the REMIC II Regular Interests,
respectively, and all ownership interests evidenced or constituted by the Class
R-II Interest and the REMIC II Regular Interests, shall be as set forth in
this
Agreement. The Class R-II Interest and the REMIC II Regular Interests shall
constitute the entire beneficial ownership interest in REMIC II. 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 the 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-HE1” 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 and payments to the Insurer in respect of the
Insurer Premium and Reimbursement Amounts;
(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
(or those ancillary thereto) 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 ▇▇▇▇▇ Fargo hereunder to service and administer
the Mortgage Loans shall be limited to the Ocwen Mortgage Loans and the ▇▇▇▇▇
Fargo Mortgage Loans, respectively, and with respect to the duties and
obligations of each Servicer, references herein to the related Mortgage Loans
shall be limited to the (i) the Ocwen Mortgage Loans (and the related proceeds
thereof and related REO Properties) in the case of Ocwen and (ii) the ▇▇▇▇▇
Fargo Mortgage Loans (and the related proceeds and related REO Properties in
the
case of ▇▇▇▇▇ Fargo). From and after the Closing Date to the Servicing Transfer
Date, the Fremont Mortgage Loans, the GreenPoint Mortgage Loans and the New
Century Mortgage Loans will be serviced and administered by Fremont, GreenPoint
and New Century, respectively, pursuant to the terms and provisions of the
related Interim Servicing Agreement, and neither Ocwen nor ▇▇▇▇▇ Fargo will
have
any responsibility to service or administer the Fremont Mortgage Loans, the
GreenPoint Mortgage Loans or the New Century Mortgage Loans, or have any other
obligation or liability with respect to the Fremont Mortgage Loans, the
GreenPoint Mortgage Loans or the New Century Mortgage Loans during that period.
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 and the Insurer (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 of its Affiliates may have with
the related Mortgagor;
(ii) the
ownership of any Certificate by the related Servicer or any of its
Affiliates;
(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 related
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 and the Master
Servicer shall not have any liability or obligation with respect to such
difference (including any obligation to recalculate any prepayment charges),
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, the Insurer 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, the
Certificateholders and the Insurer. 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 or under the Servicing Agreement, as applicable,
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, 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.
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 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 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 the Servicer or otherwise, the 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 such 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 Servicer with the same force
and
effect as if performed directly by such Servicer.
(b) Notwithstanding
the foregoing, each Servicer shall be entitled to outsource one or more separate
servicing functions to 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 3.18 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 such
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
Sections 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 regardless of whether such payments
are remitted by the Sub-Servicer 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 immediately
terminated as soon as is reasonably possible by any successor to the related
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 a Subcontractor, as applicable shall
be deemed to be between the Sub-Servicer and the related Servicer or
Subcontractor, as applicable 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 pursuant to Section 8.02, 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 related 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. 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, but not limited to, 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 or the Insurer (taking into account any estimated Realized
Loss that might result absent such action). No Servicer shall be required to
institute or join in litigation with respect to collection of any payment
(whether under a Mortgage, Mortgage Note or otherwise or against any public
or
governmental authority with respect to a taking or condemnation) if it
reasonably believes that enforcing the provision of the Mortgage or other
instrument pursuant to which such payment is required is prohibited by
applicable law.
SECTION
3.07. Collection
of Taxes, Assessments and Similar Items; Servicing Accounts.
To
the
extent the terms of a Mortgage provide for Escrow Payments, 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. Each 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, and in no event
more than one (1) Business Day after such Servicer’s receipt thereof, all Escrow
Payments collected on account of the related 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
related 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 related 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 the related 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.
To
the
extent that a Mortgage does not provide for Escrow Payments, each 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, such 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 such 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, the
Certificateholders and the Insurer. 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 payable to
such Servicer 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 of this Agreement; 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 servicing 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, the Certificateholders
and
the Insurer. 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 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
the
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 the related
Collection Account any and all amounts payable or reimbursable to the Depositor,
the Servicers, the Trustee, the Master Servicer, the Securities Administrator
or
the Sponsor pursuant to Section 3.09 of this Agreement 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 or after
the first Business Day following the Business Day on which such payment was
due,
the Securities Administrator shall send written notice thereof to the Servicer.
The related Servicer shall pay to the Securities Administrator interest on
any
such late payment by such Servicer at an annual rate equal to Prime Rate (as
defined in The
Wall Street Journal)
plus
one percentage point, but in no event greater than the maximum amount permitted
by applicable law. Such interest shall be paid by the related Servicer to the
Securities Administrator on the date such late payment is made and shall cover
the period commencing with the day following the related 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 in the Distribution Account may be invested in
Permitted Investments in accordance with the provisions set forth in Section
3.10. The related 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 payable to such Servicer) of Monthly Payments 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 payable to such Servicer 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 or other income from the related REO
Property;
(iv) to
pay to
itself as servicing compensation (in addition to the Servicing Fee payable
to
such Servicer 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 of this Agreement 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;
(B) any
unpaid Servicing Fees payable to such Servicer to the extent not recoverable
from Liquidation Proceeds, Insurance Proceeds or other amounts received with
respect to the related Mortgage Loan under Section 3.06(a)(iii) of this
Agreement; or
(C) any
P&I Advance or Servicing Advance made with respect to a delinquent Mortgage
Loan which Mortgage Loan has been modified by the Servicer in accordance with
the terms of this Agreement; provided that the Servicer shall only reimburse
itself for such P&I Advances and Servicing Advances at the time of such
modification or as otherwise provided in Section 3.09.
(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 and the Insurer 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 Excess Servicing Fee, if any, to the Class CE-2 Certificateholder pursuant
to Section 5.01(b);
(vii) to
pay
the Credit Risk Management Fee to the Credit Risk Manager; and
(viii) 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 the related 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 outstanding principal balance of the related Mortgage
Loan
at the time it became an REO Property. Each Servicer will comply in the
performance of this Agreement with all reasonable rules and requirements of
each
insurer under any such hazard policies. Any amounts to be collected by a
Servicer under any such policies (other than amounts to be applied to the
restoration or repair of the property subject to the related Mortgage or amounts
to be released to the Mortgagor in accordance with 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) The
Servicers shall not take any action that would result in noncoverage under
any
applicable primary mortgage insurance policy of any loss which, but for the
actions of the related Servicer would have been covered thereunder. Each
Servicer shall use its best efforts to keep in force and effect any applicable
primary mortgage insurance policy and, to the extent that the related Mortgage
Loan requires the Mortgagor to maintain such insurance, any other primary
mortgage insurance applicable to any Mortgage Loan. Except as required by
applicable law or the related Mortgage Loan Documents, the Servicers shall
not
cancel or refuse to renew any such primary mortgage insurance policy that is
in
effect at the date of the initial issuance of the related Mortgage Note and
is
required to be kept in force hereunder.
Each
Servicer agrees to present on behalf of the Trustee and the Certificateholders
claims to the applicable insurer under any primary mortgage insurance policies
and, in this regard, to take such reasonable action as shall be necessary to
permit recovery under any primary mortgage insurance policies respecting
defaulted Mortgage Loans. Pursuant to Section 3.08 of this Agreement, any
amounts collected by a Servicer under any primary mortgage insurance policies
shall be deposited in the related Collection Account, subject to withdrawal
pursuant to Section 3.09 of this Agreement. Notwithstanding any provision
to the contrary, a Servicer shall not have any responsibility with respect
to a
primary mortgage insurance policy unless such Servicer has been made aware
of
such policy, as reflected on the Mortgage Loan Schedule or otherwise and have
been provided with adequate information to administer such policy.
(d) 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.
(e) Each
Servicer agrees to present on behalf of the Trustee and the Certificateholders
claims to the applicable insurer under any primary mortgage insurance policies
and, in this regard, to take such reasonable action as shall be necessary to
permit recovery under any primary mortgage insurance policies respecting
defaulted Mortgage Loans. Pursuant to Section 3.08, any amounts collected by
a
Servicer under any primary mortgage insurance policies shall be deposited in
the
related Collection Account, subject to withdrawal pursuant to Section 3.09.
Notwithstanding any provision to the contrary, no Servicer shall have any
responsibility with respect to a primary mortgage insurance policy unless such
Servicer has been made aware of such policy, as reflected on the Mortgage Loan
Schedule or otherwise and have been provided with adequate information to
administer such policy.
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) 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. 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.
(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
serviced by such Servicer.
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 such 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 serviced by such Servicer.
(c) Each
Servicer shall have the right to purchase from REMIC I any defaulted Mortgage
Loan serviced by it that is 90 days or more delinquent, which such Servicer
determines in good faith will otherwise become subject to foreclosure
proceedings (evidence of such determination to be delivered in writing to the
Trustee, in form and substance satisfactory to such Servicer and the Trustee
prior to purchase), at a price equal to the Purchase Price. The Purchase Price
for any Mortgage Loan purchased hereunder shall be deposited in the related
Collection Account, and the Trustee, upon receipt of written certification
from
the related Servicer of such deposit, shall release or cause to be released
to
the related Servicer 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 related Servicer shall furnish
and
as shall be necessary to vest in the related Servicer title to any Mortgage
Loan
released pursuant hereto.
(d) 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 Trustee 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. Notwithstanding the preceding sentence, the Trustee
shall in no way be liable or responsible for the willful malfeasance of a
Servicer, or for any wrongful or negligent actions taken by a Servicer, while
such Servicer is acting in its capacity as attorney in fact for and on behalf
of
the Trustee.
SECTION
3.15. Servicing
Compensation.
As
compensation for its activities hereunder, the Servicer shall be entitled to
the
Servicing Fee (or with respect to Ocwen, the Ocwen 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) 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)
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) and ancillary income 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 and 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 and the Insurer 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 and the Insurer,
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 March 31st in any given year so
long as it has not received written confirmation from the Depositor that a
Form
10-K is required to be filed in respect of the Trust for the preceding calendar
year; provided however that, notwithstanding the foregoing, no Subcontractor
will be required to deliver any attestation in any given year in which the Form
10-K is not required to be filed.
(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 and the Insurer, 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 March 31st in any given year so long as such
Servicer has not received written confirmation from the Depositor that a Form
10-K is required to be filed in respect of the Trust for the preceding fiscal
year; provided however that, notwithstanding the foregoing, no Subcontractor
will be required to deliver any assessments in any given year in which the
Form
10-K is not required to be filed.
(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 Insurer, 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, the Insurer 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, the Insurer 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 and the Insurer 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 or the Insurer, 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 Insurer, the Trustee, the Custodians, the Swap
Provider, Ownit Mortgage Solutions, Inc. 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 Securities Administrator and the Master Servicer
such additional information as the Securities Administrator and 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 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 such
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 any 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 and the Insurer. 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. Each Servicer shall manage, conserve, protect and operate each
REO
Property for the Certificateholders and the Insurer 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 and the Insurer. 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 in no event more than two (2) Business
Days after the deposit of good funds into the clearing account, 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 without fee, in the
event 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).
(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 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
related Prepayment Period occurring between the fifteenth day, with respect
to
Ocwen, or the fourteenth day, with respect to ▇▇▇▇▇ Fargo 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. Obligations
of the Servicers in Respect of Mortgage Rates and Monthly Payments.
In
the
event that a shortfall in any collection on or liability with respect to any
Mortgage Loan results from or is attributable to adjustments to Mortgage Rates,
Monthly Payments or Stated Principal Balances that were made by a Servicer
in a
manner not consistent with the terms of the related Mortgage Note and this
Agreement, the related Servicer, upon discovery or receipt of notice thereof,
immediately shall deliver to the Securities Administrator for deposit in the
Distribution Account from its own funds the amount of any such shortfall and
shall indemnify and hold harmless the Trust Fund, the Trustee, the Securities
Administrator, the Master Servicer, the Depositor and any successor servicer
in
respect of any such liability. Such indemnities shall survive the termination
or
discharge of this Agreement. Notwithstanding the foregoing, this
Section 3.23 shall not limit the ability of the Servicer to seek recovery
of any such amounts from the related Mortgagor under the terms of the related
Mortgage Note and Mortgage, to the extent permitted by applicable
law.
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-HE1, 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(c)(8)(vi), rather than
distributing such amounts to the Class CE-1 Certificateholders, and
Section 5.01(c)(8)(vii). On each such Distribution Date, the Securities
Administrator shall hold all such amounts for the benefit of the Holders of
the
Class A Certificates and the Mezzanine Certificates and will distribute such
amounts to the Holders of the Class A Certificates and the Mezzanine
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) It
is the
intention of the parties hereto that, for federal and state income and state
and
local franchise tax purposes, the Reserve Fund be disregarded as an entity
separate from the Holder of the Class CE-1 Certificates unless and until the
date when either (a) there is more than one Class CE-1 Certificateholder or
(b)
any Class of Certificates in addition to the Class CE-1 Certificates is
recharacterized as an equity interest in the Reserve Fund for federal income
tax
purposes, in which case it is the intention of the parties hereto that, for
federal and state income and state and local franchise tax purposes, the Reserve
Fund be treated as a partnership. All amounts deposited into the Reserve Fund
(other than the initial deposit therein of $1,000) shall be treated as amounts
distributed by REMIC II 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 and the Mezzanine 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 or the Mezzanine 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 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 and the Mezzanine Certificateholders to receive payments
from
the Reserve Fund in respect of any Net WAC Rate Carryover Amount shall be
assigned a value of $1,000 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, 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) each Servicer is
hereby authorized to assign its rights to the Servicing Fee (which rights shall
terminate upon the resignation, termination or removal of such Servicer 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, the Insurer, 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 the 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 and the Interim
Servicers under the Interim Servicing Agreements to service and administer
the
related Mortgage Loans in accordance with the terms of this Agreement and the
Interim Servicing Agreements, 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 and the Interim 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 the Interim Servicers and shall cause the Servicers and
Interim Servicers to perform and observe the covenants, obligations and
conditions to be performed or observed by the related Servicer under this
Agreement and the Interim Servicing Agreements. The Master Servicer shall
independently and separately monitor each Servicer’s and each Interim Servicer’s
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 each
Servicer’s, each Interim Servicer’s 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 each Servicer
and
each Interim Servicer to the Distribution Account pursuant to the terms hereof
based on information provided to the Master Servicer by each Servicer and each
Interim Servicer. Notwithstanding anything to the contrary herein, the Master
Servicer shall have no obligation to supervise, monitor or oversee the
performance of the Interim Servicers under the Interim Servicing Agreements
on
or after the Servicing Transfer Date.
The
Trustee shall furnish the related Servicer, the related Interim 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, the
related Inteirm 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 or the related Servicer
pursuant to any such limited power of attorney and shall be indemnified by
the
Master Servicer, the related Servicer or the related Interim 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, the related Interim
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, the related Interim 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 and Interim Servicers.
(a) The
Master Servicer shall be responsible for monitoring the compliance by the
Servicers with their its duties under this Agreement and the Interim Servicers
with their respective duties under the Interim Servicing Agreements. In the
review of the related Servicer’s or related Interim Servicer’s activities, the
Master Servicer may rely upon an Officer’s Certificate of the related Servicer
or related Interim Servicer with regard to such Servicer’s compliance with the
terms of this Agreement or such Interim Servicer’s compliance with the terms of
the related Interim Servicing Agreement, as applicable. In the event that the
Master Servicer, in its judgment, determines that the related Servicer or
related Inteirm Servicer should be terminated in accordance with the terms
hereof or the terms of the related Inteirm Servicing Agreement, 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 under the Interim Servicing Agreement, the Master Servicer
shall notify the related Servicer or the related Interim Servicer, the Sponsor
and the Trustee thereof and (i) with respect to Ocwen or an Interim Servicer,
the Master Servicer shall issue such notice or take such other action as it
deems appropriate and (ii) with respect to ▇▇▇▇▇ Fargo, the Trustee shall issue
such notice or take such other action as it deems appropriate.
(b) The
Master Servicer, for the benefit of the Trustee, the Certificateholders and
the
Insurer, shall enforce the obligations of the Servicers under this Agreement
and
the Interim Servicers under the Interim Servicing Agreements and shall, in
the
event that a Servicer fails to perform its obligations in accordance with this
Agreement or an Interim Servicer fails to perform its obligations in accordance
with the related Interim Servicing Agreement, subject to this Section and
Article VIII, notify the Trustee and the Trustee shall terminate the rights
and
obligations of such Servicer hereunder in accordance with the provisions of
Article VIII or such Interim Servicer in accordance with the provisions of
the
related Interim Servicing Agreement. In the event the rights and obligations
of
Ocwen (or any successor thereto) or an Interim Servicer are terminated, the
Master Servicer shall act as servicer of the related Mortgage Loans or a
successor servicer shall be appointed in accordance with the provisions of
Article VIII. In the event that the rights and obligations of ▇▇▇▇▇ Fargo in
its
capacity as Servicer of the ▇▇▇▇▇ Fargo Mortgage Loans are terminated, the
Trustee shall appoint a successor servicer of the related Mortgage Loans 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 or the Trustee, as applicable, shall be entitled to be
reimbursed by the related Servicer or the related Interim Servicer (or from
amounts on deposit in the Distribution Account if the related Servicer or the
related Interim Servicer is unable to fulfill its obligations hereunder or
under
the related Interim Servicing Agreement) 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) or Interim 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 successor servicer to correct any errors or insufficiencies in the
servicing data or otherwise to enable the successor servicer to service the
related Mortgage Loans properly and effectively, upon presentation of reasonable
documentation of such costs and expenses.
(d) The
Master Servicer shall require the Servicers and the Interim Servicers to comply
with the remittance requirements and other obligations set forth in this
Agreement and the Interim Servicing Agreements, as applicable.
(e) If
the
Master Servicer or the Trustee acts as successor to a Servicer, it will not
assume any 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 or related Interim 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, the related Servicer or related Interim 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 or the related Interim Servicing 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, the related Servicer or
related Interim 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, the related Servicer or related Interim
Servicer and shall be indemnified by the Master Servicer, the related Servicer
or related Interim 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 or the related Interim Servicer to
enforce such clauses in accordance with this Agreement or the related Interim
Servicing Agreement. If applicable law prohibits the enforcement of a
due-on-sale clause or such clause is otherwise not enforced in accordance with
this Agreement or the related Interim Servicing Agreement and, as a consequence,
a Mortgage Loan is assumed, the original Mortgagor may be released from
liability in accordance with this Agreement or the related Interim Servicing
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 applicable 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 applicable 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 or, to the extent provided therein, the related Interim
Servicing Agreement, shall cause the related Servicer or the related Interim
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 and each Interim Servicer under the Interim Servicing
Agreements to maintain or cause to be maintained standard fire and casualty
insurance and, where applicable, flood insurance, all in accordance with the
provisions of this Agreement or the Servicing Agreement. It is understood and
agreed that such insurance shall be with insurers meeting the eligibility
requirements set forth in Section 3.11 of this Agreement or the eligibility
requirements set forth in the related Interim Servicing Agreement, as
applicable, and that no earthquake or other additional insurance is to be
required of any Mortgagor or to be maintained on property acquired in respect
of
a defaulted 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
and each Interim Servicer’s obligations under the Interim Servicing Agreements,
as applicable, to prepare and present on behalf of the Trustee and the
Certificateholders all claims under any insurance policies and take such actions
(including the negotiation, settlement, compromise or enforcement of the
insured’s claim) as shall be necessary to realize recovery under such policies.
Any proceeds disbursed to the Master Servicer (or disbursed to the related
Servicer or the related Interim Servicer and remitted to the Master Servicer)
in
respect of such policies, bonds or contracts shall be promptly deposited in
the
Distribution Account upon receipt, except that any amounts realized that are
to
be applied to the repair or restoration of the related Mortgaged Property as
a
condition precedent to the presentation of claims on the related Mortgage Loan
to the insurer under any applicable insurance policy need not be so deposited
or
remitted.
SECTION
4.10. Maintenance
of Primary Mortgage Insurance Policies.
(a) The
Master Servicer shall not take, or permit a Servicer or an Interim Servicer
to
take (to the extent such action is prohibited by this Agreement or the related
Interim Servicing Agreement), any action that would result in noncoverage under
any primary mortgage insurance policy of any loss which, but for the actions
of
the Master Servicer, the related Servicer or the related Interim Servicer,
as
applicable, would have been covered thereunder. The Master Servicer shall use
its best reasonable efforts to cause the related Servicer or the related Interim
Servicer to keep in force and effect (to the extent that the Mortgage Loan
requires the Mortgagor to maintain such insurance), primary mortgage insurance
applicable to each Mortgage Loan in accordance with the provisions of this
Agreement or the related Interim Servicing Agreement. The Master Servicer shall
not, and shall not permit the related Servicer or the related Interim Servicer
to, cancel or refuse to renew any primary mortgage insurance policy that is
in
effect at the date of the initial issuance of the Mortgage Note and is required
to be kept in force hereunder except in accordance with the provisions of this
Agreement or the related Interim Servicing Agreement.
(b) The
Master Servicer agrees to cause the related Servicer or the related Interim
Servicer to present, on behalf of the Trustee and the Certificateholders, claims
to the insurer under any primary mortgage insurance policies and, in this
regard, to take such reasonable action as shall be necessary to permit recovery
under any primary mortgage insurance policies respecting defaulted Mortgage
Loans.
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, the related Servicer and
the
related Interim Servicer have otherwise fulfilled their respective obligations
under this Agreement or the related Interim Servicing Agreement, as applicable,
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 related 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 or the related Interim Servicer
to foreclose upon, repossess or otherwise comparably convert the ownership
of
Mortgaged Properties securing such of the Mortgage Loans as come into and
continue in default and as to which no satisfactory arrangements can be made
for
collection of delinquent payments, all in accordance with this Agreement or
the
related Interim Servicing 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 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 4.19. 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 or the related Interim Servicer
to sell, any REO Property as expeditiously as possible and in accordance with
the provisions of this Agreement or the provisions of the related Interim
Servicing Agreement, as applicable. Further, the Master Servicer shall cause
the
related Servicer or the related Interim 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 or
the
related Interim 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 or the related Interim 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 or the related Interim Servicing Agreement, as applicable,
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 or the related Interim Servicer
to deposit all funds collected and received in connection with the operation
of
any REO Property in the REO Account or in the account designated for such
amounts under the related Interim Servicing Agreement.
SECTION
4.15. Master
Servicer Annual Statement of Compliance.
(a) The
Master Servicer and the Securities Administrator shall deliver (or otherwise
make available) (and the Master Servicer and Securities Administrator shall
cause any Additional Servicer or Servicing Function Participant engaged by
it to
deliver) to the Insurer, 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 or Servicing Function Participant, has been made under such officer’s
supervision and (B) to the best of such officer’s knowledge, based on such
review, such party has fulfilled all its obligations under this Agreement,
or
such other applicable agreement in the case of an Additional Servicer or
Servicing Function Participant, in all material respects throughout such year
or
portion thereof, or, if there has been a failure to fulfill any such obligation
in any material respect, specifying each such failure known to such officer
and
the nature and status thereof.
(b) The
Master Servicer shall include all annual statements of compliance received
by it
from the Servicers with its own annual statement of compliance to be submitted
to the Securities Administrator pursuant to this Section.
(c) In
the
event the Master Servicer, the Securities Administrator or any Servicing
Function Participant engaged by such parties is terminated, assigns its rights
and obligations under, or resigns pursuant to the terms of this Agreement,
or
any applicable agreement in the case of a Servicing Function Participant, as
the
case may be, such party shall provide an Officer’s Certificate pursuant to this
Section 4.15(c) or to such other applicable agreement, as the case may be,
notwithstanding any such termination, assignment or resignation.
(d) 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.
(e) 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.
(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, or otherwise
make available, and each such party shall cause any Servicing Function
Participant engaged by it to furnish, each at its own expense, to the Securities
Administrator, the Depositor and the Insurer, 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
and
the Depositor the name of each Servicing Function Participant engaged by it
and
what Relevant Servicing Criteria will be addressed in the report on assessment
of compliance prepared by such Servicing Function Participant (provided,
however,
that
the Master Servicer need not provide such information to the Securities
Administrator so long as the Master Servicer and the Securities Administer
are
the same Person). 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 on
any similar exhibit set forth in each servicing agreement in respect of each
Servicer and notify the Depositor of any exceptions.
(d) The
Master Servicer shall include all annual reports on assessment of compliance
received by it from the Servicers with its own assessment of compliance to
be
submitted to the Securities Administrator pursuant to this Section.
(e) In
the
event the Master Servicer, the Securities Administrator or any Servicing
Function Participant engaged by such parties is terminated, assigns its rights
and obligations under, or resigns pursuant to the terms of this Agreement,
or
any applicable agreement in the case of a Servicing Function Participant, as
the
case may be, such party shall provide a report on assessment of compliance
pursuant to this Section 4.16(e) or to such other applicable agreement,
notwithstanding any such termination, assignment or resignation.
(f) 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.
(g) 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
an
attestation report to the Securities Administrator, the Depositor and the
Insurer, 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 assessment of compliance attestation report from the
Master Servicer, the Securities Administrator or any Servicing Function
Participant engaged by such parties, 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.
(c) The
Master Servicer shall include each such attestation furnished to it from the
Servicers with its own attestation to be submitted to the Securities
Administrator pursuant to this Section.
(d) In
the
event the Master Servicer, the Securities Administrator or any Servicing
Function Participant engaged by such parties is terminated, assigns its rights
and duties under, or resigns pursuant to the terms of this Agreement, or any
applicable agreement in the case of a Servicing Function Participant, as the
case may be, such party shall cause a registered public accounting firm to
provide an attestation pursuant to this Section 4.17 or such other applicable
agreement notwithstanding any such termination, assignment or
resignation.
(e) 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 senior officer of the Master Servicer in charge of the
master servicing function shall serve as the Certifying Person on behalf of
the
Trust. Such officer of the Certifying Person can be contacted by e-mail at
▇▇▇.▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇ or by facsimile at ▇▇▇-▇▇▇-▇▇▇▇. In the
event any such party or any Servicing Function Participant engaged by such
party
is terminated, assigns its rights or duties under, 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. Notwithstanding the foregoing, (i) the Master Servicer and the
Securities Administrator shall not be required to deliver a Back-Up
Certification to each other if both are the same Person and the Master Servicer
is the Certifying Person and (ii) the Master Servicer shall not be obligated
to
sign the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Certification in the event that it does not receive
any
Back-Up Certification required to be furnished to it pursuant to this section
or
any Servicing Agreement.
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
4.20. 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.
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:
(a) (1)With
respect to the Group IA Mortgage Loans:
(i) to
Holders of REMIC I Regular Interest A-I, and each of REMIC I Regular Interest
I-1-A through I-44-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;
(ii) to
the
extent of amounts remaining after the distributions made pursuant to clause
(i)
above, to the Holders of REMIC I Regular Interest A-I, an amount of principal
shall be distributed to such Holders until the Uncertificated Balance of REMIC
I
Regular Interest A-I is reduced to zero; and
(iii) to
the
extent of amounts remaining after the distributions made pursuant to clause
(i)
and (ii) above, payments of principal shall be allocated to REMIC I Regular
interests I-1-A through I-44-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.
(2) With
respect to the Group IB Mortgage Loans:
(i) to
Holders of REMIC I Regular Interest A-II, and each of REMIC I Regular Interest
II-1-A through II-44-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;
(ii) to
the
extent of amounts remaining after the distributions made pursuant to clause
(i)
above, to the Holders of REMIC I Regular Interest A-II, an amount of principal
shall be distributed to such Holders until the Uncertificated Balance of REMIC
I
Regular Interest A-II is reduced to zero; and
(iii) to
the
extent of amounts remaining after the distributions made pursuant to clause
(i)
and (ii) above, payments of principal shall be allocated to REMIC I Regular
interests II-1-A through II-44-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.
(3) With
respect to the Group II Mortgage Loans:
(i) to
Holders of REMIC I Regular Interest A-III and each of REMIC I Regular Interest
III-1-A through III-44-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.
(ii) to
the
extent of amounts remaining after the distributions made pursuant to clause
(i)
above, to the Holders of REMIC I Regular Interest A-III, an amount of principal
shall be distributed to such Holders until the Uncertificated Balance of REMIC
I
Regular Interest A-III is reduced to zero; and
(iii) to
the
extent of amounts remaining after the distributions made pursuant to clause
(i)
and (ii) above, payments of principal shall be allocated to REMIC I Regular
interests III-1-A through III-44-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.
(b) to
the
Holders of REMIC I Regular Interest P, (A) all amounts representing Prepayment
Charges in respect of the Mortgage Loans received during the related Prepayment
Period and (B) 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.
(c) (1)
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) first
to
the Holders of REMIC II Regular Interest IO, in an amount equal to (A)
Uncertificated Interest for such REMIC II Regular Interest for such Distribution
Date, plus (B) any amounts in respect thereof remaining unpaid from previous
Distribution Dates and second, to the Holders of REMIC II Regular Interest
AA,
REMIC II Regular Interest A-1A, REMIC II Regular Interest A-1B1, REMIC II
Regular Interest A-1B2, REMIC II Regular Interest A-2A, REMIC II Regular
Interest A-2B, REMIC II Regular Interest A-2C, REMIC II Regular Interest A-2D,
REMIC II Regular Interest M-1, 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 M-10
and
REMIC II Regular Interest ZZ, 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 ZZ Uncertificated Interest
Deferral Amount and such amount will be payable to the Holders of REMIC II
Regular Interest A-1A, REMIC II Regular Interest A-1B1, REMIC II Regular
Interest A-1B2, REMIC II Regular Interest A-2A, REMIC II Regular Interest A-2B,
REMIC II Regular Interest A-2C, REMIC II Regular Interest A-2D, REMIC II Regular
Interest M-1, 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 M-10 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
Holders of REMIC II Regular Interest IA-SUB, REMIC II Regular Interest IA-GRP,
REMIC II Regular Interest IB-SUB, REMIC II Regular Interest IB-GRP, REMIC II
Regular Interest II-SUB, REMIC II Regular Interest II-GRP, and REMIC II Regular
Interest XX, 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;
(iii) to
the
Holders of REMIC II Regular Interests, in an amount equal to the remainder
of
the REMIC II Marker Allocation Percentage 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-1A, REMIC
II Regular Interest A-1B1, REMIC II Regular Interest A-1B2, REMIC II Regular
Interest A-2A, REMIC II Regular Interest A-2B, REMIC II Regular Interest A-2C,
REMIC II Regular Interest A-2D, REMIC II Regular Interest M-1, 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 M-10, 1% 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 the amounts deemed distributed
on REMIC I Regular Interest P; then
(D) any
remaining amount to the Holders of the Class R Certificate, 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.
(iv) to
the
Holders of REMIC II Regular Interests, in an amount equal to the remainder
of
the REMIC II Sub WAC Allocation Percentage of available funds for such
Distribution Date after the distributions made pursuant to clause (ii) above,
such that distributions of principal shall be deemed to be made to the REMIC
II
Regular Interests first, so as to keep the Uncertificated Balance of each REMIC
II Regular Interest ending with the designation “GRP” equal to 0.01% of the
aggregate Stated Principal Balance of the Mortgage Loans in the related loan
group; second, to each REMIC II Regular Interest ending with the designation
“SUB,” so that the Uncertificated Balance of each such REMIC II Regular Interest
is equal to 0.01% of the excess of (x) the aggregate Stated Principal Balance
of
the Mortgage Loans in the related loan group over (y) the current Certificate
Principal Balance of the Class A Certificate in the related loan group (except
that if any such excess is a larger number than in the preceding distribution
period, the least amount of principal shall be distributed to such REMIC II
Regular Interests such that the REMIC II Subordinated Balance Ratio is
maintained); and third, any remaining principal to REMIC II Regular Interest
XX.
(v) Notwithstanding
the distributions described in Section 5.01(a)(1), distributions of funds shall
be made to Certificateholders only in accordance with Section 5.01(a)(2) through
(8).
(2) On
each
Distribution Date, the Securities Administrator shall withdraw from the
Distribution Account to the extent on deposit therein an amount equal to the
Group IA 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 Group IA Interest Remittance Amount remaining for such Distribution
Date:
first,
to the
Supplemental Interest Trust, an amount equal to the Group I Allocation
Percentage of (i) any Net Swap Payment owed to the Swap Provider and (ii) 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-1A Certificates, the Senior Interest Distribution Amount
allocable to the Class A-1A Certificates;
third,
concurrently, to the Holders of the Class A-1B1, Class A-1B2, Class A-2A, Class
A-2B, Class A-2C and Class A-2D Certificates (including the Insurer as subrogee
with respect to the Class A-1B2 Certificates), the Senior Interest Distribution
Amount allocable to each such Class, to the extent remaining unpaid after the
distribution of the Group IB Interest Remittance Amount as set forth in Section
5.01(c)(3) below and the Group II Interest Remittance Amount as set forth in
Section 5.01(c)(4) below, on a pro rata basis, based on the entitlement of
each
such Class; and
fourth,
to the
Insurer, any Insurer Premium and unpaid Reimbursement Amounts not repaid from
the Group IB Interest Remittance Amount as set forth in Section 5.01(c)(3)
below.
(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
Group IB 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 Group IB Interest Remittance Amount remaining for such Distribution
Date:
first,
to the
Insurer, the Insurer Premium due in connection with the Policy;
second,
to the
Supplemental Interest Trust, an amount equal to the Group IB Allocation
Percentage of (i) any Net Swap Payment owed to the Swap Provider and (ii) any
Swap Termination Payment owed to the Swap Provider not due to a Swap Provider
Trigger Event;
third,
to the
Holders of the Class A-1B1 Certificates and Class A-1B2 Certificates (including
the Insurer as subrogee with respect to the Class A-1B2 Certificates), the
Senior Interest Distribution Amount allocable to each such Class on a pro rata
basis, based on the entitlement of each such Class;
fourth,
to the
Insurer, any unpaid Reimbursement Amounts; and
fifth,
concurrently, to the Holders of the Class A-1A, Class A-2A, Class A-2B, Class
A-2C and Class A-2D Certificates, the Senior Interest Distribution Amount
allocable to each such Class, to the extent remaining unpaid after the
distribution of the Group IA Interest Remittance Amount as set forth in Section
5.01(c)(2) above and the Group II Interest Remittance Amount as set forth in
Section 5.01(c)(4) below, on a pro rata basis, based on the entitlement of
each
such Class.
(4) On
each
Distribution Date, the Securities Administrator shall withdraw from the
Distribution Account to the extent on deposit therein an amount equal to the
Group II 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 Group II Interest Remittance Amount remaining for such Distribution
Date:
first,
to the
Supplemental Interest Trust, an amount equal to the Group II Allocation
Percentage of (i) any Net Swap Payment owed to the Swap Provider and (ii) any
Swap Termination Payment owed to the Swap Provider not due to a Swap Provider
Trigger Event;
second, concurrently,
to the Holders of the Class A-2A, Class A-2B, Class A-2C and Class A-2D
Certificates, the Senior Interest Distribution Amount allocable to each such
Class, on a pro rata basis, based on the entitlement of each such Class;
third,
concurrently, to the Holders of the Class A-1A, Class A-1B1 and Class A-1B2
Certificates (including the Insurer as subrogee with respect to the Class A-1B2
Certificates), the Senior Interest Distribution Amount allocable to each such
Class, to the extent remaining unpaid after the distribution of the Group IA
Interest Remittance Amount as set forth in Section 5.01(c)(2) above and the
Group IB Interest Remittance Amount as set forth in Section 5.01(c)(3) above,
on
a pro rata basis, based on the entitlement of each such Class; and
fourth,
to the
Insurer, any Insurer Premium and Reimbursement Amounts not repaid from the
Group
IB Interest Remittance Amount as set forth in Section 5.01(c)(3)
above.
(5) On
each
Distribution Date, the Securities Administrator shall withdraw from the
Distribution Account to the extent on deposit therein an amount equal to the
Group IA Interest Remittance Amount, Group IB Interest Remittance Amount and
Group II Interest Remittance Amount remaining after the distributions required
by clauses (2), (3) and (4) above and make the following disbursements and
transfers in the order of priority described below, in each case to the extent
of the Group IA Interest Remittance Amount, Group IB Interest Remittance Amount
and Group II Interest Remittance Amount remaining for such Distribution
Date:
sequentially,
to the Holders of the Class M-1, 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 M-10 Certificates, in
that
order, the Interest Distribution Amount allocable to each such
Class.
(6) 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 Group IA
Principal Distribution Amount, Group IB Principal Distribution Amount and Group
II Principal Distribution Amount and distribute to the Certificateholders the
following amounts, in the following order of priority:
(i) The
Group
IA Principal Distribution Amount shall be distributed in the following order
of
priority:
first,
to the
Supplemental Interest Trust, an amount equal to the Group IA Allocation
Percentage of (i) any Net Swap Payment owed to the Swap Provider and (ii) 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-1A Certificates, until the Certificate Principal Balance
of the Class A-1A Certificates has been reduced to zero;
third,
concurrently, (i) to the Holders of the Class A-1B1 Certificates and Class
A-1B2
Certificates and (ii) to the Holders of the Class A-2 Certificates, after taking
into account the distribution of the Group IB Principal Distribution Amount
as
described in Section 5.01(c)(6)(ii) below and the Group II Principal
Distribution Amount as described in Section 5.01(c)(6)(iii) below, 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;
provided, however that if a Sequential Trigger Event is in effect on such
Distribution Date, the pro rata allocation to the Class A-1B1 Certificates
and
Class A-1B2 Certificates pursuant to this clause third shall be based on the
total Certificate Principal Balance of the Class A-1B1 Certificates and Class
A-1B2 Certificates, but shall be distributed sequentially to the Class A-1B1
Certificates and Class A-1B2 Certificates, in that order, until the Certificate
Principal Balance of each such Class has been reduced to zero; provided, further
that the pro rata allocation to the Class A-2 Certificates pursuant to this
clause third shall be based on the total Certificate Principal Balance of the
Class A-2 Certificates, but shall be distributed sequentially to the Class
A-2A,
Class A-2B, Class A-2C and Class A-2D Certificates, in that order, until the
Certificate Principal Balance of each such Class has been reduced to zero;
and
fourth,
to the
Insurer, any Insurer Premium and Reimbursement Amounts not repaid from the
Interest Remittance Amount on such Distribution Date.
(ii) The
Group
IB Principal Distribution Amount shall be distributed in the following order
of
priority:
first,
to the
Supplemental Interest Trust, an amount equal to the Group IB Allocation
Percentage of (i) any Net Swap Payment owed to the Swap Provider and (ii) 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,
concurrently to the Holders of the Class A-1B1 Certificates and Class A-1B2
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; provided, however that if a Sequential Trigger Event
is in
effect on such Distribution Date, the distribution to the holders of the Class
A-1B1 Certificates and Class A-1B2 Certificates pursuant to this clause second
shall be made on a sequential basis to the Class A-1B1 Certificates and Class
A-1B2 Certificates, in that order, until the Certificate Principal Balance
of
each such Class has been reduced to zero;
third,
concurrently, (i) to the Holders of the Class A-1A Certificates and (ii) to
the
Holders of the Class A-2 Certificates, after taking into account the
distribution of the Group IA Principal Distribution Amount as described in
Section 5.01(c)(6)(i) above and the Group II Principal Distribution Amount
as
described in Section 5.01(c)(6)(iii) below, 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; provided, however
that the pro rata allocation to the Class A-2 Certificates pursuant to this
clause third shall be based on the total Certificate Principal Balance of the
Class A-2 Certificates, but shall be distributed sequentially to the Class
A-2A,
Class A-2B, Class A-2C and Class A-2D Certificates, in that order, until the
Certificate Principal Balance of each such Class has been reduced to zero;
and
fourth,
to the
Insurer, any Insurer Premium and Reimbursement Amounts not repaid from the
Interest Remittance Amount on such Distribution Date.
(iii) The
Group
II Principal Distribution Amount shall be distributed in the following order
of
priority:
first,
to the
Supplemental Interest Trust, an amount equal to the Group II Allocation
Percentage of (i) any Net Swap Payment owed to the Swap Provider and (ii) 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,
sequentially, to the Holders of the Class A-2A Class A-2B, Class A-2C and Class
A-2D Certificates, in that order, until the Certificate Principal Balance of
each such Class has been reduced to zero;
third,
concurrently, (i) to the Holders of the Class A-1A Certificates and (ii) to
the
Holders of the Class A-1B1 Certificates and Class A-1B2 Certificates after
taking into account the distribution of the Group IA Principal Distribution
Amount as described in Section 5.01(c)(6)(i) above and the Group IB Principal
Distribution Amount as described in Section 5.01(c)(6)(ii) above, 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;
provided, however that if a Sequential Trigger Event is in effect on such
Distribution Date, the pro rata allocation to the Class A-1B1 Certificates
and
Class A-1B2 Certificates pursuant to this clause third shall be based on the
total Certificate Principal Balance of the Class A-1B1 Certificates and Class
A-1B2 Certificates, but shall be distributed sequentially to the Class A-1B1
Certificates and Class A-1B2 Certificates, in that order, until the Certificate
Principal Balance of each such Class has been reduced to zero; and
fourth,
to the
Insurer, any Insurer Premium and Reimbursement Amounts not repaid from the
Interest Remittance Amount on such Distribution Date.
(iv) The
Group
IA Principal Distribution Amount, Group IB Principal Distribution Amount and
Group II Principal Distribution Amount remaining after distributions pursuant
to
Sections 5.01(c)(6)(i), (ii) and (iii) above shall be distributed in the
following order of priority:
sequentially,
to the Holders of the Class M-1, 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 M-10 Certificates, in
that
order, until the Certificate Principal Balance of each such Class has been
reduced to zero.
(7) 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
Group IA Principal Distribution Amount, Group IB Principal Distribution Amount
and Group II Principal Distribution Amount and distribute to the
Certificateholders the following amounts, in the following order of
priority:
(v) The
Group
IA Principal Distribution Amount shall be distributed in the following order
of
priority:
first,
to the
Supplemental Interest Trust, an amount equal to the Group IA Allocation
Percentage of (i) any Net Swap Payment owed to the Swap Provider and (ii) 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-1A Certificates, the Class A-1A Principal Distribution
Amount, until the Certificate Principal Balance of such Class has been reduced
to zero;
third,
concurrently, (i) to the holders of the Class A-1B1 Certificates and Class
A-1B2
Certificates and (ii) to the holders of the Class A-2 Certificates, after taking
into account the distribution of the Group IB Principal Distribution Amount
on
such Distribution Date pursuant to Section 5.01(c)(7)(ii) below and the Group
II
Principal Distribution Amount pursuant to Section 5.01(c)(7)(iii) below on
such
Distribution Date, on a pro rata basis based on the amount required to satisfy
the Targeted Credit Enhancement Test with respect to Class A-1B1 Certificates
and Class A-1B2 Certificates on the one hand and the Class A-2 Certificates
on
the other; provided, however that if a Sequential Trigger Event is in effect
on
such Distribution Date, the distribution to the Class A-1B1 Certificates and
Class A-1B2 Certificates pursuant to this clause third shall be made on a
sequential basis to the Class A-1B1 Certificates and Class A-1B2 Certificates,
in that order; provided, further that the distribution to the Class A-2
Certificates pursuant to this clause third shall be made on a sequential basis
to the Class A-2A, Class A-2B, Class A-2C and Class A-2D Certificates, in that
order; and
fourth,
to the
Insurer, any Insurer Premium and Reimbursement Amounts not repaid from the
Interest Remittance Amount on such Distribution Date.
(vi) The
Group
IB Principal Distribution Amount shall be distributed in the following order
of
priority:
first,
to the
Supplemental Interest Trust, an amount equal to the Group IB Allocation
Percentage of (i) any Net Swap Payment owed to the Swap Provider and (ii) 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,
concurrently to the Holders of the Class A-1B1 Certificates and Class A-1B2
Certificates, on a pro rata basis based on the Certificate Principal Balance
of
each such Class, the Class A-1B Principal Distribution Amount until the
Certificate Principal Balance of each such Class has been reduced to zero;
provided, however that if a Sequential Trigger Event is in effect on such
Distribution Date, the distribution to the Holders of the Class A-1B1
Certificates and Class A-1B2 Certificates pursuant to this clause second shall
be made on a sequential basis to the Class A-1B1 Certificates and Class A-1B2
Certificates, in that order, until the Certificate Principal Balance of each
such Class has been reduced to zero;
third,
concurrently, (i) to the holders of the Class A-1A Certificates and (ii) to
the
holders of the Class A-2 Certificates, after taking into account the
distribution of the Group IA Principal Distribution Amount on such Distribution
Date pursuant to Section 5.01(c)(7)(i) above and the Group II Principal
Distribution Amount on such Distribution Date the Group II Principal
Distribution Amount pursuant to Section 5.01(c)(7)(iii) below, on a pro rata
basis based on the amount required to satisfy the Targeted Credit Enhancement
Test with respect to Class A-1A Certificates on the one hand and the Class
A-2
Certificates on the other; provided, however that the distribution to the Class
A-2 Certificates pursuant to this clause third shall be based on a sequential
basis to the Class A-2A, Class A-2B, Class A-2C and Class A-2D Certificates,
in
that order; and
fourth,
to the
Insurer, any Insurer Premium and Reimbursement Amounts not repaid from the
Interest Remittance Amount on such Distribution Date.
(vii) The
Group
II Principal Distribution Amount shall be distributed in the following order
of
priority:
first,
to the
Supplemental Interest Trust, an amount equal to the Group II Allocation
Percentage of (i) any Net Swap Payment owed to the Swap Provider and (ii) 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,
sequentially, to the Holders of the Class A-2A, Class A-2B, Class A-2C and
Class
A-2D Certificates, in that order, the Class A-2 Principal Distribution Amount,
until the Certificate Principal Balance of each such Class has been reduced
to
zero;
third,
concurrently, (i) to the holders of the Class A-1A Certificates and (ii) to
the
holders of the Class A-1B1 Certificates and Class A-1B2 Certificates, after
taking into account the distribution of the Group IA Principal Distribution
Amount on such Distribution Date pursuant to Section 5.01(c)(7)(i) above and
the
Group IB Principal Distribution Amount on such Distribution Date pursuant to
Section 5.01(c)(7)(ii) above, on a pro rata basis based on the amount required
to satisfy the Target Credit Enhancement Test with respect to the A-1A
Certificates on the one hand and the Class A-1B1 Certificates and Class A-1B2
Certificates on the other; provided, however that if a Sequential Trigger Event
is in effect on such Distribution Date, the distribution to the Class A-1B1
Certificates and Class A-1B2 Certificates pursuant to this clause third shall
be
made on a sequential basis to the Class A-1B1 Certificates and Class A-1B2
Certificates, in that order; and
fourth,
to the
Insurer, any Insurer Premium and Reimbursement Amounts not repaid from the
Interest Remittance Amount on such Distribution Date.
(viii) The
Principal Distribution Amount remaining after distributions pursuant to Sections
5.01(c)(7)(i), (ii) and (iii) above shall be distributed in the following order
of priority:
first,
to the
Holders of the Class M-1 Certificates, the lesser of (x) the remaining Principal
Distribution Amount and (y) the Class M-1 Principal Distribution Amount, until
the Certificate Principal Balance of the Class M-1 Certificates has been reduced
to zero;
second,
to the
Holders of the Class M-2 Certificates, the lesser of (x) the excess of (i)
the
remaining Principal Distribution Amount over (ii) the amounts distributed to
the
Holders of the Class M-1 Certificates under clause first 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;
third,
to the
Holders of the Class M-3 Certificates, the lesser of (x) the excess of (i)
the
remaining Principal Distribution Amount over (ii) the sum of the amounts
distributed to the Holders of the Class M-1 Certificates under clause first
above and to the Holders of the Class M-2 Certificates under clause second
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;
fourth,
to the
Holders of the Class M-4 Certificates, the lesser of (x) the excess of (i)
the
remaining Principal Distribution Amount over (ii) the sum of the amounts
distributed to the Holders of the Class M-1 Certificates under clause first
above, to the Holders of the Class M-2 Certificates under clause second above
and to the Holders of the Class M-3 Certificates under clause third 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;
fifth,
to the
Holders of the Class M-5 Certificates, the lesser of (x) the excess of (i)
the
remaining Principal Distribution Amount over (ii) the sum of the amounts
distributed to the Holders of the Class M-1 Certificates under clause first
above, to the Holders of the Class M-2 Certificates under clause second above,
to the Holders of the Class M-3 Certificates under clause third above and to
the
Holders of the Class M-4 Certificates under clause fourth 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;
sixth,
to the
Holders of the Class M-6 Certificates, the lesser of (x) the excess of (i)
the
remaining Principal Distribution Amount over (ii) the sum of the amounts
distributed to the Holders of the Class M-1 Certificates under clause first
above, to the Holders of the Class M-2 Certificates under clause second above,
to the Holders of the Class M-3 Certificates under clause third above, to the
Holders of the Class M-4 Certificates under clause fourth above and to the
Holders of the Class M-5 Certificates under clause fifth 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;
seventh,
to the
Holders of the Class M-7 Certificates, the lesser of (x) the excess of (i)
the
remaining Principal Distribution Amount over (ii) the sum of the amounts
distributed to the Holders of the Class M-1 Certificates under clause first
above, to the Holders of the Class M-2 Certificates under clause second above,
to the Holders of the Class M-3 Certificates under clause third above, to the
Holders of the Class M-4 Certificates under clause fourth above, to the Holders
of the Class M-5 Certificates under clause fifth above and to the Holders of
the
Class M-6 Certificates under clause sixth 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;
eighth,
to the
Holders of the Class M-8 Certificates, the lesser of (x) the excess of (i)
the
remaining Principal Distribution Amount over (ii) the sum of the amounts
distributed to the Holders of the Class M-1 Certificates under clause first
above, to the Holders of the Class M-2 Certificates under clause second above,
to the Holders of the Class M-3 Certificates under clause third above, to the
Holders of the Class M-4 Certificates under clause fourth above, to the Holders
of the Class M-5 Certificates under clause fifth above, to the Holders of the
Class M-6 Certificates under clause sixth above and to the Holders of the Class
M-7 Certificates under clause seventh 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;
ninth,
to the
Holders of the Class M-9 Certificates, the lesser of (x) the excess of (i)
the
remaining Principal Distribution Amount over (ii) the sum of the amounts
distributed to the Holders of the Class M-1 Certificates under clause first
above, to the Holders of the Class M-2 Certificates under clause second above,
to the Holders of the Class M-3 Certificates under clause third above, to the
Holders of the Class M-4 Certificates under clause fourth above, to the Holders
of the Class M-5 Certificates under clause fifth above, to the Holders of the
Class M-6 Certificates under clause sixth above, to the Holders of the Class
M-7
Certificates under clause seventh above and to the Holders of the Class M-8
Certificates under clause eighth 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
tenth,
to the
Holders of the Class M-10 Certificates, the lesser of (x) the excess of (i)
the
remaining Principal Distribution Amount over (ii) the sum of the amounts
distributed to the Holders of the Class M-1 Certificates under clause first
above, to the Holders of the Class M-2 Certificates under clause second above,
to the Holders of the Class M-3 Certificates under clause third above, to the
Holders of the Class M-4 Certificates under clause fourth above, to the Holders
of the Class M-5 Certificates under clause fifth above, to the Holders of the
Class M-6 Certificates under clause sixth above, to the Holders of the Class
M-7
Certificates under clause seventh above, to the Holders of the Class M-8
Certificates under clause eighth above and to the Holders of the Class M-9
Certificates under clause ninth above, and (y) the Class M-10 Principal
Distribution Amount, until the Certificate Principal Balance of the Class M-10
Certificates has been reduced to zero.
(8) 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:
(ix) to
the
Holders of the Class or Classes of Certificates then entitled to receive
distributions in respect of principal, in an amount equal to the
Overcollateralization Increase Amount, payable to such Holders in accordance
with the priorities set forth in Section 5.01(d) below;
(x) sequentially,
to the Holders of the Class M-1, 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 M-10 Certificates, in
that
order, in an amount equal to the Interest Carry Forward Amount allocable to
each
such Class;
(xi) sequentially,
to the Holders of the Class M-1, 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 M-10 Certificates, in
that
order, in an amount equal to the Allocated Realized Loss Amount allocable to
each such Class;
(xii) concurrently,
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 payments pursuant to Section 3.22
or
4.19 of this Agreement or pursuant to the Interim Servicing Agreements 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 to the
extent not previously reimbursed pursuant to Section 1.02;
(xiii) sequentially,
to the Holders of the Class M-1, 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 M-10 Certificates, in
that
order, in an amount equal to such certificates’ share of any Prepayment Interest
Shortfalls on the Mortgage Loans to the extent not covered by payments pursuant
to Sections 3.22 or Section 4.19 of this Agreement or pursuant to the Interim
Servicing Agreements and any Relief Act Interest Shortfall, in each case that
were allocated to such Class for such Distribution Date and for any prior
Distribution Date, to the extent not previously reimbursed pursuant to Section
1.02;
(xiv) to
the
Reserve Fund, the amount by which the Net WAC Rate Carryover Amounts, if any,
with respect to the Offered Certificates exceeds the amount in the Reserve
Fund
that was not distributed on prior Distribution Dates;
(xv) 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
Swap Agreement;
(xvi)
to the
Holders of the Class CE-1 Certificates the Interest Distribution Amount and
any
Overcollateralization Reduction Amount for such Distribution Date;
and
(xvii) 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, concurrently to the Class
A
Certificates, on a pro
rata
basis;
second, to the Class M-1 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 M-10
Certificates, in each case to the extent to the extent any Net WAC Rate
Carryover Amount is allocable to each such Class.
(d) On
each
Distribution Date, for so long as Ocwen is the Servicer of the Ocwen Mortgage
Loans, the Securities Administrator shall distribute to the Holders of the
Class
CE-2 Certificates, with respect to each Ocwen Mortgage Loan, one-twelfth of
the
product of (i) the excess of the Servicing Fee Rate over the Ocwen Servicing
Fee
Rate, if any, multiplied by (ii) the Scheduled Principal Balance of the related
Ocwen Mortgage Loan as of the Due Date in the preceding calendar month (the
“Excess Servicing Fee”).
(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.
(f) As
described in Section 5.01(c)(2), (3), (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 Section 5.01(c)(7)(vii).
(g) 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
Interest Rate 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 Interest Rate Swap
Agreement;
third,
concurrently, to each class of Class A Certificates, the related Senior Interest
Distribution Amount remaining undistributed after the distributions of the
Group
IA Interest Remittance Amount, Group IB Interest Remittance Amount and Group
II
Interest Remittance Amount, on a pro
rata
basis
based on such respective remaining Senior Interest Distribution
Amounts;
fourth,
sequentially, to the Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class M-3, Class M-4, Class M-5,
Class M-6, Class M-7, Class M-8, Class M-9 and Class M-10 Certificates, in
that
order, the related Interest Distribution Amount and Interest Carry Forward
Amount, to the extent remaining undistributed after the distributions of the
Group IA Interest Remittance Amount, Group IB Interest Remittance Amount and
Group II Interest Remittance Amount and the Net Monthly Excess
Cashflow;
fifth,
concurrently, to each class of 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, on a pro
rata
basis
based on such respective Net WAC Rate Carryover Amounts remaining;
sixth,
sequentially, to the Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class M-3, Class M-4, Class M-5,
Class M-6, Class M-7, Class M-8, Class M-9 and Class M-10 Certificates, in
that
order, 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,
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 Section 5.01(c)(7)(i) above;
eighth,
sequentially to the Class ▇-▇, ▇▇▇▇▇ ▇-▇, Class M-3, Class M-4, Class M-5,
Class
M-6, Class M-7, Class M-8, Class M-9 and Class M-10 Certificates, in that order,
in each case up to the related Allocated Realized Loss Amount related to such
Certificates for such Distribution Date remaining undistributed after
distribution of the Net Monthly Excess Cashflow;
ninth,
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 Interest Rate
Swap
Agreement; and
tenth,
to the
Class CE-1 Certificates, any remaining amounts.
(h) 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(k)
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.
(i) 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.
(j) Each
Holder of an Insured Certificate, by its acceptance of such Insured Certificate,
hereby agrees that, in the event any distribution is made to any Holder of
such
Insured Certificate from amounts paid under the Policy, (i) the Insurer shall
be
subrogated in the manner herein provided to the rights of the Holder of such
Insured Certificate to receive, from amounts on deposit in the Distribution
Account, the distributions allocable to principal and interest that would have
been distributable to such Holder if no distribution had been made under the
Policy; and (ii) in addition to the rights of the Holders of the Insured
Certificates that the Insurer may exercise in accordance with the provisions
of
Section 12.1, the Insurer may exercise any option, vote, right, or power with
respect to each Insured Certificate for which amounts paid under the Policy
(plus interest at the Late Payment Rate thereon from the date such payment
was
made) are outstanding.
Payments
to the Insurer shall be made by wire transfer of immediately available funds
to
the following account, unless the Insurer notifies the Securities Administrator
in writing of a change in such wire transfer instructions: CIFG Assurance North
America, Inc., Bank: JPMorgan Chase Bank, ABA Number: ▇▇▇▇-▇▇▇-▇, For the
Account of: ▇▇▇▇▇ Brothers ▇▇▇▇▇▇▇▇ & Co., Account Number: ▇▇▇-▇-▇▇▇▇▇▇, For
Further Credit to Account Number: ▇▇▇▇▇▇▇.
(k) 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(i) 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 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(k). Any such amounts held in trust by the
Securities Administrator shall be held uninvested in an Eligible
Account.
(l) Notwithstanding
anything to the contrary herein, (i) in no event shall the Certificate Principal
Balance of a Class A Certificate or a Mezzanine 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 on the information set
forth in the Servicer Reports for such Distribution Date and information
provided by the Trustee or 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, the Credit Risk Manager and the Insurer, a
statement as to the distributions made on such Distribution Date setting
forth:
(i) applicable
Interest Accrual Periods and general Distribution Dates;
(ii) with
respect to each loan group, the total cash flows received and the general
sources thereof;
(iii) the
aggregate Servicing Fee received by the Servicers during the related Due
Period;
(iv) the
amount, if any, of other fees or expenses accrued and paid, with an
identification of the payee and the general purpose of such fees;
(v) with
respect to each loan group, the amount of the related distribution to Holders
of
the Certificates (by class) allocable to principal, separately identifying
(A)
the aggregate amount of any Principal Prepayments included therein, (B) the
aggregate of all scheduled payments of principal included therein and (C) any
Overcollateralization Increase Amount included therein;
(vi) with
respect to each loan group, the amount of such distribution to Holders of the
Certificates (by class) allocable to interest and the portion thereof, if any,
provided by the Swap Agreement;
(vii) with
respect to each loan group, the Interest Carry Forward Amounts and any Net
WAC
Rate Carryover Amounts for the related Certificates (if any);
(viii) the
aggregate amount of Advances included in the distributions on the Distribution
Date (including the general purpose of such Advances);
(ix) with
respect to each loan group, the number and aggregate principal balance of any
Mortgage Loans that were (A) delinquent (exclusive of Mortgage Loans in
foreclosure) using the “OTS” method (1) one scheduled payment is delinquent, (2)
two scheduled payments are delinquent, (3) three scheduled payments are
delinquent and (4) foreclosure proceedings have been commenced, and loss
information for the period;
(x) 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;
(xi) with
respect to each loan group and any Mortgage Loan that was liquidated during
the
preceding calendar month, the loan number and Scheduled Principal Balance of,
and Realized Loss on, such Mortgage Loan as of the end of the related Prepayment
Period;
(xii) the
total
number and principal balance of any real estate owned, or REO Properties, as
of
the end of the related Prepayment Period;
(xiii) with
respect to each loan group, whether the Stepdown Date has occurred and whether
Trigger Event is in effect;
(xiv) with
respect to each loan group, the cumulative Realized Losses through the end
of
the preceding month;
(xv) the
aggregate amount of Extraordinary Trust Fund Expenses withdrawn from the
Distribution Account for such Distribution Date;
(xvi) with
respect to each loan group, the Certificate Principal Balance of the related
Certificates before and after giving effect to the distribution of principal
and
allocation of Allocated Realized Loss Amounts on such Distribution
Date;
(xvii) with
respect to each loan group, the number and Scheduled Principal Balance of all
the Mortgage Loans for the following Distribution Date;
(xviii) with
respect to each loan group, 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 in such loan group 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 in such loan group;
(xix) the
Certificate Factor for each such Class of Certificates applicable to such
Distribution Date;
(xx) the
Interest Distribution Amount in respect of the Class A Certificates, the
Mezzanine 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 and the Mezzanine Certificates on such Distribution Date, and
in
the case of the Class A Certificates and the Mezzanine Certificates separately
identifying any reduction thereof due to allocations of Prepayment Interest
Shortfalls and interest shortfalls including the following Realized Losses:
Relief Act Interest Shortfalls and Net WAC Rate Carryover Amounts;
(xxi) 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, the Master Servicer pursuant to
Section 4.19 of this Agreement or the Interim Servicers pursuant to the
Interim Servicing Agreements;
(xxii) the
aggregate amount of Relief Act Interest Shortfalls for such Distribution
Date;
(xxiii) the
amount of, if any, of Net Monthly Excess Cashflow or excess spread and the
application of such Net Monthly Excess Cashflow;
(xxiv) the
Required Overcollateralization Amount and the Credit Enhancement Percentage
for
such Distribution Date;
(xxv) the
Overcollateralization Increase Amount, if any, for such Distribution
Date;
(xxvi) the
Overcollateralization Reduction Amount, if any, for such Distribution
Date;
(xxvii) the
Pass-Through Rate for each class of Certificates for such Distribution
Date;
(xxviii) the
amount of any deposit to the Reserve Fund contemplated by
Section 3.24(b);
(xxix) the
balance of the Reserve Fund prior to the deposit or withdrawal of any amounts
on
such Distribution Date;
(xxx) the
amount of any deposit to the Reserve Fund pursuant to
Section 5.01(c)(8)(vi);
(xxxi) the
Loss
Severity Percentage with respect to each Mortgage Loan;
(xxxii) the
Aggregate Loss Severity Percentage;
(xxxiii) with
respect to each loan group, the amount of the Prepayment Charges remitted by
the
Servicers; and
(xxxiv) the
amount of any Net Swap Payment payable to the Trust, any related Net Swap
Payment payable to the Swap Provider, any Swap Termination Payment payable
to
the Trust and any related 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, the Insurer 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 the Insurer and 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 the Insurer and 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 the Insurer and
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 Insurer or 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 Insurer or Certificateholder,
in accordance with such reasonable and explicit instructions and directions
as
the Insurer 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
the
18th calendar day of each month, and if the 18th calendar day is not a Business
Day, the immediately following Business Day and with respect to Ocwen on or
before 12:00 noon New York time on such 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, no
Servicer shall 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.
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. 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 of this Agreement,
in
the event ▇▇▇▇▇ Fargo fails to make any required P&I Advance, then the
Trustee 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. In addition,
in
the event that Ocwen (or any successor thereto) fails to make a required P&I
Advance or any Interim Servicer fails to make a required P&I Advance under
the related Interim Servicing Agreement, the Master Servicer (in its capacity
as
successor to such Servicer or Interim Servicer) will be required to make such
P&I Advance on the Distribution Date on which such Servicer or Interim
Servicer was required to make such P&I Advance, subject to its determination
of recoverability.
SECTION
5.04. Allocation
of Realized Losses.
(a) Prior
to
the Determination Date, each Servicer and Interim Servicer shall determine
as to
each Mortgage Loan serviced by such Servicer or Interim 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 and
the
Interim 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 Interim
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 and Interim 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 and to Net Swap Payments received from the Swap Provider
under the Swap Agreement for that purpose; third,
to the
Class M-10 Certificates until the Certificate Principal Balance of the Class
M-10 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-1 Certificates, until the Certificate Principal Balance of the Class
M-1
Certificates 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 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
Certificate shall be made by reducing the amount otherwise payable in respect
thereof pursuant to Section 5.01(c)(8)(viii). 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, and any Subsequent
Recoveries received by Countrywide, 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(c)(8). 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(c)(8)(iii). 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.
(i) All
Realized Losses on the Group IA Mortgage Loans shall be allocated on each
Distribution Date first, to REMIC I Regular Interest A-I until the
Uncertificated Balance of such REMIC I Regular Interest has been reduced to
zero
and second, to REMIC I Regular Interest I-1-A through REMIC I Regular Interest
I-44-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. All Realized Losses on the Group IB Mortgage
Loans shall be allocated on each Distribution Date first, to REMIC I Regular
Interest A-II until the Uncertificated Balance of such REMIC I Regular Interest
has been reduced to zero and second, to REMIC I Regular Interest II-1-A through
REMIC I Regular Interest II-44-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. All Realized Losses on the Group II Mortgage
Loans shall be allocated on each Distribution Date first, to REMIC I Regular
Interest A-III until the Uncertificated Balance of such REMIC I Regular Interest
has been reduced to zero and second, to REMIC I Regular Interest III-1-A through
REMIC I Regular Interest III-44-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) The
REMIC
II Marker Allocation Percentage of all Realized Losses on the Mortgage Loans
shall be allocated by 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 M-10 and REMIC II Regular Interest ZZ, 98.00%, 1.00% and 1.00%,
respectively, until the Uncertificated Balance of REMIC II Regular Interest
M-10
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, REMIC II Regular Interest M-1 and REMIC II Regular
Interest ZZ, 98.00%, 1.00% and 1.00%, respectively, until the Uncertificated
Balance of REMIC II Regular Interest M-1 has been reduced to zero.
(iii) The
REMIC
II Sub WAC Allocation Percentage of all Realized Losses shall be applied after
all distributions have been made on each Distribution Date first, so as to
keep
the Uncertificated Balance of each REMIC II Regular Interest ending with the
designation “GRP” equal to 0.01% of the aggregate Stated Principal Balance of
the Mortgage Loans in the related loan group; second, to each REMIC II Regular
Interest ending with the designation “SUB,” so that the Uncertificated Balance
of each such REMIC II Regular Interest is equal to 0.01% of the excess of (x)
the aggregate Stated Principal Balance of the Mortgage Loans in the related
loan
group over (y) the current Certificate Principal Balance of the Class A
Certificate in the related loan group (except that if any such excess is a
larger number than in the preceding distribution period, the least amount of
Realized Losses shall be applied to such REMIC II Regular Interests such that
the REMIC II Subordinated Balance Ratio is maintained); and third, any remaining
Realized Losses shall be allocated to REMIC II Regular Interest XX.
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 reported by the
parties set forth on Exhibit G to the Depositor and the Securities Administrator
and directed and approved by the Depositor pursuant to the following paragraph,
and the Securities Administrator will have no duty or liability for any failure
hereunder to determine or prepare any 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-HE1 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, upon request,
forward electronically a copy of the Form 10-D to the Depositor (provided that
such Form 10-D includes any Additional Form 10-D Disclosure). Within two
Business Days after receipt of such copy, but no later than the 12th calendar
day after the Distribution Date, the Depositor shall notify the Securities
Administrator in writing (which may be furnished electronically) of any changes
to or approval of such Form 10-D. In the absence of receipt of any written
changes or approval by the due date specified herein, or if the Depositor does
not request a copy of a Form 10-D, the Securities Administrator shall be
entitled to assume that such Form 10-D is in final form and the Securities
Administrator may proceed with the execution and filing of the Form 10-D. A
duly
authorized representative of the Master Servicer shall sign each Form 10-D.
If a
Form 10-D cannot be filed on time or if a previously filed Form 10-D needs
to be
amended, the Securities Administrator will follow the procedures set forth
in
Section 5.06(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 filed by the Securities
Administrator. 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 other than the initial
Form 8K (“Form
8-K Disclosure Information”)
shall
be reported by the parties set forth on Exhibit G to the Depositor and the
Securities Administrator and directed and approved by the Depositor pursuant
to
the following paragraph, and the Securities Administrator will have no duty
or
liability for any failure hereunder to determine or prepare any Form 8-K
Disclosure Information or any Form 8-K, except as set forth in the next
paragraph.
(ii) As
set
forth on Exhibit
G
hereto,
for so long as the Trust is subject to the Exchange Act reporting requirements,
no later than the close of business New York City time on the 2nd Business
Day
after the occurrence of a Reportable Event (i) the parties to the ACE Securities
Corp., Home Equity Loan Trust, Series 2006-HE1 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, upon request,
forward electronically a copy of the Form 8-K to the Depositor. Promptly, but
no
later than the close of business on the third Business Day after the Reportable
Event, the Depositor shall notify the Securities Administrator in writing (which
may be furnished electronically) of any changes to or approval of such Form
8-K.
In the absence of receipt of any written changes or approval by the third
Business Day, or if the Depositor does not request a copy of a Form 8-K, the
Securities Administrator shall be entitled to assume that such Form 8-K is
in
final form and the Securities Administrator may proceed with the execution
and
filing of the Form 8-K. A duly authorized representative of the Master Servicer
shall sign each Form 8-K. If a Form 8-K cannot be filed on time or if a
previously filed Form 8-K needs to be amended, the Securities Administrator
will
follow the procedures set forth in Section 5.06(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, execute
or
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 30th of the first year in which the Securities Administrator
is
able to do so under applicable law, the Securities Administrator shall prepare
and file a Form 15 suspension notification relating to the automatic suspension
of reporting in respect of the Trust 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 electronically 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 (other than
for
the purposes of restating any Monthly Report), any Additional Form 10-K
Disclosure or any Form 8-K Disclosure Information or any amendment to such
disclosure, the Securities Administrator will electronically notify the
Depositor only if the amendment pertains to an additional reporting item being
revised and/or amended on such form, but not if an amendment is being filed
as a
result of a Remittance Report revision, 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 a duly authorized representative or senior officer in charge of master
servicing, as applicable, of the Master Servicer. The parties to this Agreement
acknowledge that the performance by the 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)On
or
prior to 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, the related
servicing agreement and custodial agreements, (i) an annual compliance statement
for each Servicer, each Additional Servicer, the Master Servicer, the Securities
Administrator and any Servicing Function Participant engaged by such parties
(each, a “Reporting
Servicer”)
as
described under Section 3.17 and Section 4.15 and in such other agreements,
(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 in such other agreements, 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 or in such other agreement, 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 (provided,
however,
that
the Securities Administrator, at its discretion, may omit from the Form 10-K
any
annual compliance statement, assessment of compliance or attestation report
that
is not required to be filed with such Form 10-K pursuant to Regulation AB).
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 reported by the parties set forth on Exhibit G to the Depositor and the
Securities Administrator and directed and approved by the Depositor pursuant
to
the following paragraph, and the Securities Administrator will have no duty
or
liability for any failure hereunder to determine or prepare any 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-HE1 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, upon request,
forward electronically a copy of the Form 10-K to the Depositor. Within three
Business Days after receipt of such copy, but in no event later than March
25th
of each
year that the Trust is subject to Exchange Act reporting requirements, the
Depositor shall notify the Securities Administrator in writing (which may be
furnished electronically) of any changes to or approval of such Form 10-K.
In
the absence of receipt of any written changes or approval by March 25th, or
if
the Depositor does not request a copy of a Form 10-K, the Securities
Administrator shall be entitled to assume that such Form 10-K is in final form
and the Securities Administrator may proceed with the execution and filing
of
the Form 10-K. A senior officer of the Master Servicer in charge of the master
servicing function shall sign the Form 10-K. If a Form 10-K cannot be filed
on
time or if a previously filed Form 10-K needs to be amended, the Securities
Administrator will follow the procedures set forth in Section 5.06(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 filed by the Securities Administrator. 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) 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.
(f) Notwithstanding
the provisions of Section 12.01, this Section 5.06 may be amended without the
consent of the Certificateholders.
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
moneys, including, without limitation, other moneys of the Trustee or of the
Securities Administrator held pursuant to this Agreement.
(b) On
each
Distribution Date, the Securities Administrator shall 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(c) of this Agreement.
(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-1 Certificates.
(d) For
federal income tax purposes, amounts paid to the Supplemental Interest Trust
on
each Distribution Date pursuant to Section 5.01(c)(2), (3), (4), (6) and
(7) and Section 5.01(c)(8)(vii) 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 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 $1,000.
(g) In
the
event that the Swap Agreement is terminated prior to the Distribution Date
in
October 2009, 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(c).
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 as follows: each Offered 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. Resecuritization of any Offered
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 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-5. 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
CE-1, Class CE-2 and Class P Certificates offered and sold to QIBs in reliance
on Rule 144A under the Securities Act (“Rule 144A”) will be issued in the form
of Definitive Certificates.
(d) 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 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 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 and (iii) 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.
(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”).
Each
Transferee of a Mezzanine 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) 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) (i)
Each
Person who has or who acquires any Ownership Interest in a Residual Certificate
shall be deemed by the acceptance or acquisition of such Ownership Interest
to
have agreed to be bound by the following provisions and 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) (A)
If
any purported Transferee shall become a Holder of a Residual Certificate in
violation of the provisions of this Section 6.02(d), then the last
preceding Permitted Transferee shall be restored, to the extent permitted by
law, to all rights as holder thereof retroactive to the date of registration
of
such Transfer of such Residual Certificate. The Securities Administrator shall
be under no liability to any Person for any registration of Transfer of a
Residual Certificate that is in fact not permitted by this Section 6.02(d)
or for making any payments due on such Certificate to the holder thereof or
for
taking any other action with respect to such holder under the provisions of
this
Agreement.
(B) If
any
purported Transferee shall become a holder of a Residual Certificate in
violation of the restrictions in this Section 6.02(d) and to the extent
that the retroactive restoration of the rights of the holder of such Residual
Certificate as described in clause (iii)(A) above shall be invalid, illegal
or
unenforceable, then the Securities Administrator shall have the right, without
notice to the holder or any prior holder of such Residual Certificate, to sell
such Residual Certificate to a purchaser selected by the Securities
Administrator on such terms as the Securities Administrator may choose. Such
purported Transferee shall promptly endorse and deliver each Residual
Certificate in accordance with the instructions of the Securities Administrator.
Such purchaser may be the Securities Administrator itself or any Affiliate
of
the Securities Administrator. The proceeds of such sale, net of the commissions
(which may include commissions payable to the Securities Administrator or its
Affiliates), expenses and taxes due, if any, will be remitted by the Securities
Administrator to such purported Transferee. The terms and conditions of any
sale
under this clause (iii)(B) shall be determined in the sole discretion of the
Securities Administrator, and the Securities Administrator shall not be liable
to any Person having an Ownership Interest in a Residual Certificate as a result
of its exercise of such discretion.
(iv) The
Securities Administrator shall make available to the Internal Revenue Service
and those Persons specified by the REMIC Provisions all information necessary
to
compute any tax imposed (A) as a result of the Transfer of an Ownership Interest
in a Residual Certificate to any Person who is a Disqualified Organization,
including the information described in Treasury regulations sections
1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the “excess inclusions” of
such Residual Certificate and (B) as a result of any regulated investment
company, real estate investment trust, common trust fund, partnership, trust,
estate or organization described in Section 1381 of the Code that holds an
Ownership Interest in a Residual Certificate having as among its record holders
at any time any Person which is a Disqualified Organization. Reasonable
compensation for providing such information may be charged or collected by
the
Securities Administrator.
(v) The
provisions of this Section 6.02(d) set forth prior to this subsection (v)
may be modified, added to or eliminated, provided that there shall have been
delivered to the Securities Administrator at the expense of the party seeking
to
modify, add to or eliminate any such provision the following:
(A) written
notification from each Rating Agency to the effect that the modification,
addition to or elimination of such provisions will not cause such Rating Agency
to downgrade its then-current ratings of any Class of Certificates;
and
(B) an
Opinion of Counsel, in form and substance satisfactory to the Securities
Administrator, to the effect that such modification of, addition to or
elimination of such provisions will not cause any 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 three separate
certificates, each representing such holder's respective Percentage Interest
in
the Class R-I Interest, the Class R-II Interest and the Class R-III 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 the 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 Insurer, 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 Insurer, 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 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 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 4.02 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. Subject to the following paragraph, Ocwen
will keep in full effect its existence, rights and franchises as a limited
liability company and ▇▇▇▇▇ Fargo will keep in full effect its existence, rights
and franchises as a national banking association. 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 of this Agreement.
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 Servicers
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 the Servicing
Agreement, as applicable, 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
gross negligence in the performance of duties or by reason of reckless disregard
of obligations and duties hereunder or under the Servicing Agreement, as
applicable. The Depositor, each Servicer, the Securities Administrator, the
Master Servicer and any director, officer, employee or agent of the Depositor,
the related 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, the related 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 Servicing 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 under the Servicing Agreement or by reason of reckless disregard
of
obligations and duties hereunder or under the Servicing Agreement. 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 and the Insurer 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 the 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, the Master Servicer and the Insurer. 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, the Insurer 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, the Insurer 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 any Servicer that is a party hereto shall afford (and
any Sub-Servicing or Sub-Contracting Agreement shall provide that each
Sub-Servicer or Subcontractor, as applicable, shall afford) the Depositor,
the
Insurer 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 such 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 such Servicer
and
any Sub-Servicers or Subcontractors. Upon request, each of the Master Servicer
and such Servicer shall furnish to the Depositor, the Insurer and the Trustee
its (and any such Sub-Servicer’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 such information
is
not otherwise available to the public, the Depositor, the Insurer 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 or 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
a Servicer under this Agreement, or exercise the rights of the Master Servicer
or a Servicer under this Agreement; provided that neither the Master Servicer
nor the related Servicer shall be relieved of any of its obligations under
this
Agreement, as applicable, 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 a Servicer and is not
obligated to supervise the performance of the Master Servicer or a 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
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
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 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 accrued and unpaid
Servicing Fees and all out-of-pocket expenses of Ocwen 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 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 with respect to a Servicer 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 this Agreement) required to be made by such Servicer under the terms
of
the Certificates and this Agreement which continues unremedied for a period
of
one (1) Business Day 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 and the Trustee 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 this Agreement, which
continues unremedied for a period of thirty (30) days after the date on which
written notice of such failure, requiring the same to be remedied, shall have
been given to 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 ninety (90) days; 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 a 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 Insurer, 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,
or if ▇▇▇▇▇ Fargo is the defaulting Servicer, the Trustee pursuant to and under
this Section, and, without limitation, the Master Servicer or the Trustee,
as
applicable, 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 or the Trustee, as applicable, 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 or the Trustee, as applicable, 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 or the Trustee, as applicable, 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 or the Trustee, as applicable, to correct any errors
or
insufficiencies in the servicing data or otherwise to enable the Master Servicer
or the Trustee, as applicable, 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 ninety (90) days; or
(iii) the
Master Servicer shall consent to the appointment of a conservator or receiver
or
liquidator in any insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings of or relating to it or of or relating to
all
or substantially all of its property; or
(iv) the
Master Servicer shall admit in writing its inability to pay its debts generally
as they become due, file a petition to take advantage of any applicable
insolvency or reorganization statute, make an assignment for the benefit of
its
creditors, or voluntarily suspend payment of its obligations; or
(v) 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 of this Agreement, 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. Any such
successor master servicer shall be subject to the prior approval of the Insurer,
such approval not to be unreasonably withheld.
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 or Trustee to Act; Appointment of Successor.
(a) On
and
after the time a Servicer receives a notice of termination, the Master Servicer
or, if ▇▇▇▇▇ Fargo receives the notice of termination, the Trustee, 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 or therein,
and all the responsibilities, duties and liabilities relating thereto and
arising thereafter shall be assumed by the Master Servicer or the Trustee,
as
applicable (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 or the Trustee, as applicable, is
prohibited by law or regulation from obligating itself to make advances
regarding delinquent mortgage loans, then the Master Servicer or the Trustee,
as
applicable 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 of this Agreement shall not be considered
a
default by the Master Servicer or the Trustee, as applicable 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 ninety (90) days) before the actual servicing functions can
be
fully transferred to the Master Servicer or the Trustee, as applicable 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 or the Trustee, as applicable
as successor to such Servicer. As compensation therefor, the Master Servicer
or
the Trustee, as applicable 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 and subject to the immediately following paragraph, the Master Servicer
or
the Trustee, as applicable 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. Any such successor shall be
subject to the prior approval of the Insurer, such approval not to be
unreasonably withheld.
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 ▇▇▇▇▇▇ Mae 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 or the Trustee,
as
applicable shall act in such capacity as hereinabove provided.
SECTION
8.03. Notification
to Certificateholders.
(a) Upon
any
termination of the Master Servicer or a Servicer pursuant to
Section 8.01(a) or (b) of this Agreement or under the Servicing Agreement,
as applicable, or any appointment of a successor to the Master Servicer or
a
Servicer pursuant to Section 8.02 of this Agreement or pursuant to the
Servicing Agreement, as applicable, the Trustee shall give prompt written notice
thereof to the Insurer and 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 the Insurer and 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, with the consent of the Insurer, 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) Before
taking any action hereunder, 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 (a) the investment
of
funds held in any Collection Account or the Custodial Account, (b) the
investment of funds held in the Distribution Account, (c) the investment of
funds held in the Reserve Fund or (d) 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
Depositor hereby directs the Trustee and the Trustee is hereby empowered under
this Agreement to direct the Securities Administrator to execute the Swap
Agreement on behalf of the Supplemental Interest Trust in the form presented
to
it by the Swap Provider 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 Securities Administrator
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 Securities Administrator shall
not be required to make any payments from its own funds to the counterparty
under the Swap Agreement.
(d) None
of
the Securities Administrator, the Master Servicer, the Servicers, the Sponsor,
the Depositor, the Custodians 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 or any Custodial Account
by the related Servicer or the related Interim Servicer, other than with respect
to the Securities Administrator any funds held by it or on behalf of the Trustee
in accordance with Sections 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, Custodians and Securities Administrator.
The
fees
of the Trustee and the Securities Administrator hereunder, of ▇▇▇▇▇ Fargo as
the
Custodian under the ▇▇▇▇▇ Fargo Custodial Agreement and 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, Custodians, Master Servicer 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 under this Section 9.05 made by the Master Servicer to the Trustee
in
respect of the Trustee’s fees or the Master Servicer’s indemnification
obligation 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.
Additionally,
the Securities Administrator (i) may not be an originator, Master Servicer,
Servicer, the Depositor or an affiliate of the Depositor unless the Securities
Administrator is in an institutional trust department, (ii) must be authorized
to exercise corporate trust powers under the laws of its jurisdiction of
organization, and (iii) must be rated at least "A/F1" by Fitch, if Fitch is
a
Rating Agency, or the equivalent rating by S&P (or such rating acceptable to
Fitch pursuant to a rating confirmation).
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), to the Certificateholders
and
to the Insurer. 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 Insurer,
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, the Insurer 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, REMIC II 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 the Swap Provider under the
Swap Agreement as of the termination date, (iii) any amount necessary to prevent
any further draw on the Policy plus any amounts in respect of unpaid Insurer
Premiums and Reimbursement Amounts payable to the Insurer which remain unpaid
plus (iv) 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 Ocwen or ▇▇▇▇▇ Fargo to fulfill the
requirements set forth in this paragraph (either the Master Servicer, Ocwen
or
▇▇▇▇▇ Fargo, 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 Terminator, the Terminator 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
applicable Custodian from such funds deposited in the Distribution Account
(i)
any amounts which the related Servicer would be permitted to withdraw and retain
from the related Collection Account pursuant to Section 3.09 of this Agreement,
as applicable, as if such funds had been deposited therein (including all unpaid
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 applicable Custodian, the Servicers and the
Swap Provider from amounts on deposit in the Distribution Account pursuant
to
the terms of this Agreement or the Servicing 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 Terminator 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 REMIC II Regular
Interests shall be designated as the Regular Interests in REMIC II and the
Class
R-II Interest shall be designated as the “residual interests” in REMIC II. The
Class A Certificates, the Mezzanine 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, the 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, 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, any Servicer, 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
Accounts, the Custodial 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) Ocwen
agrees to indemnify the Trust Fund, the Depositor, the Master Servicer, the
Securities Administrator, the Insurer and the Trustee for any taxes and costs
including, without limitation, any reasonable attorneys’ fees imposed on or
incurred by the Trust Fund, the Depositor, the Master Servicer, the Securities
Administrator, the Insurer or the Trustee, as a result of 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.
(c) ▇▇▇▇▇
Fargo, in its capacity as Servicer, agrees to indemnify the Trust Fund, the
Depositor, the Master Servicer, the Securities Administrator, the Insurer and
the Trustee for any taxes and costs 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 Trustee,
as
a result of ▇▇▇▇▇ Fargo’s failure to perform its covenants set forth in Article
III in accordance with the standard of care of ▇▇▇▇▇ Fargo set forth in this
Agreement.
(d) The
Master Servicer agrees to indemnify the Trust Fund, the Depositor, each Servicer
party hereto and the Trustee for any taxes and costs including, without
limitation, 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, any Servicer party hereto or the Trustee
including any reasonable attorneys’ fees imposed on or incurred by the Trust
Fund, the Depositor, a Servicer 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, the Servicers,
the
Master Servicer, the Securities Administrator and the Trustee, with the consent
of the Swap Provider and the Insurer but without the consent of any of the
Certificateholders or the Insurer, (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, the Insurer 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: (▇▇▇) ▇▇▇-▇▇▇▇), with a
copy
to Deutsche Bank Securities, Inc., ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇,
Attention: Legal Department (telecopy: (▇▇▇) ▇▇▇-▇▇▇▇) 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 ▇▇▇▇▇ Fargo, ▇▇▇▇▇ Fargo Bank, National
Association, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ACE
2006-HE1, or such other address or telecopy number as may hereafter be furnished
to the Trustee, the Master Servicer, the Securities Administrator and the
Depositor in writing by ▇▇▇▇▇ Fargo, (c) in the case of the Master Servicer
and
the Securities Administrator, ▇.▇. ▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and for
overnight delivery to ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Ace Securities Corp., 2006-HE1 (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, (d) 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, (e) 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 the Trustee, the Master Servicer, the Securities
Administrator and the Depositor in writing by Ocwen, and (f) in the case of
the
Insurer, CIFG Assurance North America, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel (telecopy number: (▇▇▇)
▇▇▇-▇▇▇▇, or such other address or telecopy number as my hereafter be furnished
to the Trustee, the Master Servicer, the Securities Administrator and the
Depositor in writing by the Insurer. 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 to ▇▇▇▇▇ Fargo
in
its capacity as a Servicer hereunder to make advances regarding delinquent
▇▇▇▇▇
Fargo 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:
8. Each
Annual Statement of Compliance described in Section 3.17 of this Agreement;
and
9. Each
Assessment of Compliance and Attestation Report described in Section 3.18
of this Agreement.
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., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; to ▇▇▇▇▇’▇ Investors Service, Inc., ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; and to Fitch Ratings, ▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇
▇▇▇▇ ▇▇▇▇▇ 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 Accounts 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 and (c)
the parties shall comply with requests made by the Master Servicer, Securities
Administrator, Sponsor or the Depositor for delivery of additional or different
information as the Master Servicer, Securities Administrator, Sponsor or the
Depositor may determine in good faith is necessary to comply with the provisions
of Regulation AB.
SECTION
12.12. Swap
Provider as a Third Party Beneficiary.
The
Swap
Provider shall be deemed a third-party beneficiary of this Agreement to the
same
extent as if it were a party hereto, and shall have the right to enforce the
provisions of this Agreement.
SECTION
12.13. Indemnification.
Each
of
the Depositor, Master Servicer, Securities Administrator and any Servicing
Function Participant engaged by such party, respectively, shall indemnify and
hold harmless the Master Servicer, the Securities Administrator and the
Depositor, respectively, and each of its directors, officers, employees, agents,
and affiliates from and against any and all claims, losses, damages, penalties,
fines, forfeitures, reasonable legal fees and related costs, judgments and
other
costs and expenses arising out of or based upon (a) any breach by such party
of
any if its obligations under hereunder, including particularly its obligations
to provide any Assessment of Compliance, Attestation Report, Compliance
Statement or any information, data or materials required to be included in
any
1934 Act report, (b) any material misstatement or omission in any information,
data or materials provided by such party (or, in the case of the Securities
Administrator or Master Servicer, any material misstatement or material omission
in (i) any Compliance Statement, Assessment of Compliance or Attestation Report
delivered by it, or by any Servicing Function Participant engaged by it,
pursuant to this Agreement, or (ii) any Additional Form 10-D Disclosure,
Additional Form 10-K Disclosure or Form 8-K Disclosure concerning the Master
Servicer or the Securities Administrator), or (c) the negligence, bad faith
or
willful misconduct of such indemnifying party in connection with its performance
hereunder. If the indemnification provided for herein is unavailable or
insufficient to hold harmless the Master Servicer, the Securities Administrator
or the Depositor, as the case may be, then each such party agrees that it shall
contribute to the amount paid or payable by the Master Servicer, the Securities
Administrator or the Depositor, as applicable, as a result of any claims,
losses, damages or liabilities incurred by such party in such proportion as
is
appropriate to reflect the relative fault of the indemnified party on the one
hand and the indemnifying party on the other. This indemnification shall survive
the termination of this Agreement or the termination of any party to this
Agreement.
ARTICLE
XIII
CERTAIN
MATTERS REGARDING THE INSURER
SECTION
13.01. Exercise
of Rights of Holder of the Insured Certificates.
Each
of
the
Depositor, the Master Servicer, the Securities Administrator and the Trustee,
and, by accepting its Insured Certificate, each Holder of an Insured
Certificate, agrees that unless an Insurer Default has occurred and is
continuing, the Insurer shall have the rights set forth in this Article XIII,
which rights include the right to exercise all rights of the Holders of the
Insured Certificates under this Agreement. The Insurer shall, in its sole
discretion, without any further consent or approval of the Holders of the
Insured Certificates, the Trustee or the Securities Administrator, have (i)
the
right to direct foreclosures upon Mortgage Loans upon failure of the related
Servicer to do so; (ii) the right to require the Sponsor to repurchase or
substitute for Loans pursuant to Section 2.03; (iii) the right to give notices
of breach or to terminate the rights and obligations of a Servicer or the Master
Servicer pursuant to Section 8.01; (iv) the right to direct the actions of
the
Trustee during the continuance of a Master Servicer Event of Default pursuant
to
Section 8.01; (v) the right to consent to or direct any waivers of Master
Servicer Events of Default pursuant to Section 8.04; (vi) the right to direct
the Trustee to investigate certain matters pursuant to Section 9.02 (a)(v);
and
(vii) the right to remove the Trustee and the Securities Administrator pursuant
to Section 9.07. However, nothing in this Article XIII shall be deemed to
obligate the Insurer to exercise any of the rights provided herein. The rights
set forth in Article XIII are in addition to any rights of the Insurer pursuant
to other provisions of the Transaction Documents
In
addition, each Holder of an Insured Certificate agrees that, unless an Insurer
Default has occurred and is continuing, the rights specifically set forth above
may be exercised by the Holder of an Insured Certificate only with the prior
written consent of the Insurer.
SECTION
13.02. Trustee
and Securities Administrator to Act Solely with Consent of Insurer.
Notwithstanding
anything contained herein or in any of the other Transaction Documents to the
contrary, unless an Insurer Default has occurred and is continuing, neither
the
Trustee nor the Securities Administrator shall: (i) agree to any amendment
pursuant to Section 12.01 which requires the consent of the Certificateholders
or that has a material adverse effect on the Insurer; or (ii) undertake or
join
any litigation or agree to any settlement of any action, proceeding or
investigation affecting the Trust Fund to the extent any such settlement, action
proceeding or investigation could reasonably be expected to have a material
adverse affect on the rights or obligations of the Insurer hereunder or under
the Policy or the Transaction Documents, without the prior written consent
of
the Insurer which consent shall not be unreasonably withheld or delayed ;
provided, however, nothing contained herein shall prohibit or prevent the
Trustee and the Securities Administrator from defending itself or the Trust
Fund
or taking any action related thereto.
SECTION
13.03. Trust
Fund and Accounts Held for Benefit of Insurer.
The
Trustee shall hold the Trust Fund and the applicable Custodian (as the Trustee’s
agent for such purposes) shall hold the Mortgage Files for the benefit of the
Certificateholders and the Insurer and all references in this Agreement and
in
the Certificates to the benefit of Holders of the Certificates shall be deemed
to include the Insurer. The Master Servicer hereby acknowledges and agrees
that
it shall master service and administer the related Loans and any REO Properties,
and the Securities Administrator hereby acknowledges and agrees that it shall
maintain the Distribution Account, for the benefit of the Certificateholders
and
for the benefit of the Insurer, and all references in this Agreement (including,
without limitation, in Section 4.01) to the benefit of or actions on behalf
of
the Certificateholders shall be deemed to include the Insurer. Unless an Insurer
Default has occurred and is continuing, neither the Master Servicer nor the
Depositor shall undertake any litigation pursuant to Section 7.03 (other than
litigation to enforce their respective rights hereunder or defend themselves
against claims made against them) without the prior consent of the Insurer
(which consent shall not be unreasonably withheld or delayed).
SECTION
13.04. Claims
Upon the Policy; Policy Payments Account.
(a) As
soon
as possible, and in no event later than 11:00 a.m. New York City time, on the
Second Business Day immediately preceding each Distribution Date, the Securities
Administrator shall determine the amount of funds available for such
Distribution Date minus the amount of any Insurer Premium on such Distribution
Date.
(b) If,
at or
before 12:00 p.m., New York time, on the second Business Day prior to a
Distribution Date, the Securities Administrator determines that the Available
Distribution Amount for such Distribution Date distributable to the Holders
of
the Insured Certificates pursuant to Section 5.01 will be insufficient to pay
the Regular Payments on such Distribution Date, the Securities Administrator
shall determine the amount of any such deficiency and shall give notice to
the
Insurer and the Fiscal Agent (as defined in the Policy), if any, by telephone,
electronic mail or telecopy of the amount of such deficiency. Such notice of
such Regular Payment shall be confirmed in writing in the form set forth as
Exhibit A to the Endorsement to the Policy, to the Insurer at or before 12:00
p.m. New York time on the second Business Day prior to such Distribution Date.
Following Receipt (as defined in the Policy) by the Insurer of such notice
in
such form, the Insurer will pay any amount payable under the Policy on the
later
to occur of (i) 12:00 noon New York time on the second Business Day following
such receipt and (ii) 12:00 noon New York time on the Distribution Date to
which
such claims relates, as provided in the Endorsement to the Policy.
(c) The
Trustee shall receive as attorney-in-fact of each Holder of the Insured
Certificates any Regular Payments from the Insurer and the Securities
Administrator shall disburse the same to each Holder of the Insured Certificates
as applicable, in accordance with the provisions of this Article XIII. Regular
Payments disbursed by the Securities Administrator from proceeds of the Policy
shall not (other than for purposes of the REMIC Provisions) be considered
payment by the Trust Fund nor shall such payments discharge the obligation
of
the Trust Fund with respect to such Insured Certificates, and the Insurer shall
become the owner of such unpaid amounts due from the Trust Fund in respect
of
such Regular Payment(s) as the deemed assignee of such Holder. In addition,
the
Insurer shall be entitled to receive the Reimbursement Amount pursuant to
Section 5.01. The Securities Administrator hereby agrees on behalf of each
Holder of an Insured Certificate for the benefit of the Insurer that it
recognizes that to the extent that the Insurer makes a Regular Payment, either
directly or indirectly (as by paying through the Securities Administrator),
to
the Holders of the Insured Certificates, the Insurer will be entitled to receive
the Reimbursement Amount pursuant to Section 5.01.
(d) It
is
understood and agreed that the intention of the parties is that the Insurer
shall not, other than as set out in Section 5.01, be entitled to reimbursement
on any Distribution Date for amounts previously paid by it unless on such
Distribution Date the Holders of the Insured Certificates shall also have
received the full amount of the Regular Payment for such Distribution
Date.
(e) In
the
event the Securities Administrator or Trustee receives a certified copy of
an
order of the appropriate court that any payment of principal or interest on
an
Insured Certificate has been voided in whole or in part as a preference payment
under applicable bankruptcy law, the Securities Administrator shall (i) promptly
notify the Insurer and the Fiscal Agent, if any, and (ii) comply with the
provisions of the Policy to obtain payment by the Insurer of such voided
payment. In addition, the Securities Administrator shall mail notice to all
Holders of the Insured Certificates so affected that, in the event that any
such
Holder’s scheduled payment is so recovered, such Holder will be entitled to
payment pursuant to the terms of the Policy, a copy of which shall be made
available to such Holders by the Securities Administrator. The Securities
Administrator shall furnish to the Insurer and the Fiscal Agent, if any, its
records listing the payments on the affected Insured Certificates, if any,
that
have been made by the Securities Administrator and subsequently recovered from
the affected Holders, and the dates on which such payments were made by the
Securities Administrator.
(f) The
Trustee hereby appoints the Securities Administrator as its agent in connection
with the receipt and distribution of all amounts required to be paid by the
Insurer under the Policy and the providing of any notices required to be
provided thereunder. At the time of the execution hereof, and for the purposes
hereof, the Securities Administrator shall establish a segregated non-interest
bearing trust account for the benefit of Holders of the Insured Certificates
and
the Insurer referred to herein as the “Policy Payments Account” over which the
Securities Administrator shall have exclusive control and sole right of
withdrawal. The Policy Payments Account shall be an Eligible Account. The
Securities Administrator shall deposit any amount paid under the Policy in
the
Policy Payments Account and distribute such amount only for purposes of payment
to Holders of Insured Certificates of the Regular Payment for which the related
claim was made under the Policy or any amount in respect of a Preference Claim
(as defined in the Policy) for which a claim under the Policy was made, and
such
amount may not be applied to satisfy any costs, expenses or liabilities of
the
Master Servicer, the Securities Administrator, the Trustee or the Trust Fund.
Amounts paid under the Policy shall be transferred to the Distribution Account
in accordance with the next succeeding paragraph and disbursed by the Securities
Administrator to Holders of Insured Certificates in accordance with Section
5.01
(or, in the case of an amount in respect of a Preference Claim, to the related
Holders of Insured Certificates as contemplated in Section 13.04 (d)). It shall
not be necessary for such payments to be made by checks or wire transfers
separate from the checks or wire transfers used to pay the other distributions
to be made to such Holders pursuant to Section 5.01. However, the amount of
any
payment of principal of or interest on the Insured Certificates to be paid
from
funds transferred from the Policy Payments Account shall be noted as provided
in
paragraph (c) below in the Certificate Register and in the statement to be
furnished to Holders of the Insured Certificates pursuant to Section 5.03.
Funds
held in the Policy Payments Account shall not be invested.
(g) On
any
Distribution Date with respect to which a claim has been made under the Policy,
the amount of any funds received by the Securities Administrator as a result
of
any claim under the Policy, to the extent required to pay the Regular Payments
on such Distribution Date, shall be withdrawn from the Policy Payments Account
and deposited in the Distribution Account and applied by the Securities
Administrator, directly to the payment in full (i) of the Regular Payments
due
on such Distribution Date on the Insured Certificates or (ii) of other amounts
payable under the Policy. Funds received by the Securities Administrator as
a
result of any claim under the Policy shall be deposited by the Securities
Administrator in the Policy Payments Account and used solely for payment to
the
Holders of the Insured Certificates and may not be applied for any other
purpose, including, without limitation, to satisfy any costs, expenses or
liabilities of the Master Servicer, the Securities Administrator, the Trustee
or
the Trust Fund. Any funds remaining in the Policy Payments Account on the first
Business Day following a Distribution Date shall be remitted to the Insurer,
pursuant (and subject to receipt of) to the instructions of the Insurer, by
the
end of such Business Day.
(h) The
Securities Administrator shall keep complete and accurate records in respect
of
(i) all funds remitted to it by the Insurer and deposited into the Policy
Payments Account and (ii) the allocation of such funds to (A) payments of
interest on and principal in respect of any Insured Certificates and (B) the
amount of funds available to make distributions on the Insured Certificates
pursuant to Section 5.01. The Insurer shall have the right to inspect such
records at reasonable times during normal business hours upon three Business
Days’ prior notice to the Securities Administrator.
(i) The
Securities Administrator shall promptly notify the Insurer of: (A) the
commencement of any proceeding of which a Responsible Officer of the Securities
Administrator has actual knowledge by or against the Depositor commenced under
the United States bankruptcy code or any other applicable bankruptcy,
insolvency, receivership, rehabilitation or similar law (an “Insolvency
Proceeding”) and (B) the making of any claim of which a Responsible Officer of
the Securities Administrator has actual knowledge in connection with any
Insolvency Proceeding seeking the avoidance as a preferential transfer (a
“Preference Claim”) of any distribution made with respect to the Insured
Certificates. Each Holder of an Insured Certificate, by its purchase of such
Certificate, the Master Servicer, the Securities Administrator and the Trustee
hereby agree that the Insurer (so long as no Insurer Default has occurred and
is
continuing) may at any time during the continuation of any proceeding relating
to a Preference Claim direct all matters relating to such Preference Claim,
including, without limitation, (i) the direction of any appeal of any order
relating to such Preference Claim and (ii) the posting of any surety, or
performance bond pending any such appeal. In addition and without limitation
of
the foregoing, the Certificate Insurer shall be subrogated to the rights, if
any, of the Master Servicer, Securities Administrator, the Trustee and each
Holder of an Insured Certificate in the conduct of any such Preference Claim,
including, without limitation, all rights of any party to an adversary
proceeding action with respect to any court order issued in connection with
any
such Preference Claim.
(j) The
Trustee and the Securities Administrator each acknowledge, and each Holder
of an
Insured Certificate by its acceptance of the Insured Certificate agrees, that,
without the need for any further action on the part of the Insurer or the
Trustee, to the extent the Insurer makes payments, directly or indirectly,
on
account of principal of or interest on any Insured Certificates, the Insurer
will be fully subrogated to the rights of the Holders of such Insured
Certificates to receive such principal and interest from the Trust Fund. The
Holders of the Insured Certificates, by acceptance of the Insured Certificates,
assign their rights as Holders of the Insured Certificates to the extent of
the
Insurer’s interest with respect to amounts paid under the Policy. Anything
herein to the contrary notwithstanding, solely for purposes of determining
the
Insurer’s rights, as applicable, as subrogee for payments distributable pursuant
to Section 5.01, any payment with respect to distributions to the Insured
Certificates which is made with funds received pursuant to the terms of the
Policy, shall not be considered payment of the Insured Certificates from the
Trust Fund and shall not result in the distribution or the provision for the
distribution in reduction of the Certificate Principal Balance of the Insured
Certificates within the meaning of Article V, except to the extent such payment
has been reimbursed to the Insurer pursuant to the terms hereof.
(k) Upon
its
becoming aware of the occurrence of a Servicer Event of Default or Master
Servicer Event of Default, the Securities Administrator shall promptly notify
the Insurer of such Servicer Event of Default or Master Servicer Event of
Default. The Trustee, the Depositor, the Master Servicer and the Securities
Administrator shall cooperate in all respects with any reasonable request by
the
Insurer for action to preserve or enforce the Insurer’s rights or interests
under this Agreement without limiting the rights or affecting the interests
of
the Holders as otherwise set forth herein.
(l) The
Securities Administrator hereby agrees to provide the Insurer prompt notice
of
any action, proceeding or investigation of which it has actual knowledge that
names the Trust Fund, Trustee or Securities Administrator as a party that could
adversely affect the interest of the Insured Certificates.
(m) The
Master Servicer shall designate an Insurer Contact Person who shall be available
within a reasonable period of time to the Insurer to provide reasonable access
to information regarding the Mortgage Loans. The initial Insurer Contact Person
is Client Manager, phone number: ▇▇▇-▇▇▇-▇▇▇▇ and telecopy number:
▇▇▇-▇▇▇-▇▇▇▇.
(n) The
Trustee shall surrender the Policy to the Insurer for cancellation upon the
reduction of the Certificate Principal Balance of the Insured Certificates
to
zero.
(o) For
so
long as there is no continuing default by the Insurer under its obligations
under the Policy (an “Insurer Default”), each Holder of a Insured Certificate
agrees that the Insurer shall be treated by the Depositor, the Master Servicer,
the Servicer, the Securities Administrator, the Sponsor and the Trustee as
if
the Certificate Insurer were the Holder of all of the Insured Certificates
for
the purpose (and solely for the purpose) of the giving of any consent, the
making of any direction or the exercise of any voting or other control rights
otherwise given to the Holders of the Insured Certificates hereunder and the
Holders of the Insured Certificates shall only exercise such rights with the
prior written consent of the Insurer.
(p) With
respect to this Article XIII, (i) the terms “Receipt” and “Received” shall mean
actual delivery to the Insurer and the Fiscal Agent, if any, if any, prior
to
12:00 noon, New York City time, on a Business Day; delivery either on a day
that
is not a Business Day or after 12:00 noon, New York City time, shall be deemed
to be Received on the next succeeding Business Day. If any notice or certificate
given under the Policy by the Securities Administrator is not in proper form
or
is not properly completed, executed or delivered, or contains any misstatement,
it shall be deemed not to have been Received. The Certificate Insurer or its
Fiscal Agent, if any, shall promptly so advise the Securities Administrator
and
the Securities Administrator may submit an amended notice and (ii) “Business
Day” means any day other than (A) a Saturday or Sunday or (B) a day on which the
Certificate Insurer or banking institutions in the City of New York, New York,
or the city in which the Corporate Trust Office of the Securities Administrator
is located, are authorized or obligated by law or executive order to be
closed.
(q) Under
the
terms of the Policy, Regular Payments will not include, and the Policy will
not
cover interest shortfalls due to any Prepayment Interest Shortfalls, Relief
Act
Interest Shortfalls, Net WAC Rate Carryover Amounts or any taxes, withholding
or
other charges imposed by any governmental authority.
(r) The
Trustee designates, appoints, authorizes and directs the Securities
Administrator to deliver on behalf of the Trustee the notices in accordance
with
Section 13.04 (a) and to make, on behalf of and with full power to bind the
Trustee, any of the agreements or covenants of the Trustee contained therein.
To
the extent necessary, this Agreement shall constitute an irrevocable limited
power of attorney, coupled with an interest, from the Trustee to the Securities
Administrator, to accomplish the foregoing.
SECTION
13.05. Effect
of
Payments by Insurer; Subrogation.
Anything
herein to the contrary notwithstanding, any payment with respect to principal
of
or interest on any Insured Certificate which is made with moneys received
pursuant to the terms of the Policy shall not (other than for purposes of the
REMIC provisions) be considered payment of such Insured Certificate from the
Trust Fund and shall not result in the payment of or the provision for the
payment of the principal of or interest on such Insured Certificate within
the
meaning of Section 5.01. The Depositor, the Master Servicer, Securities
Administrator and the Trustee each acknowledge, and each Holder of an Insured
Certificate by its acceptance of a such Certificate agrees, that without the
need for any further action on the part of the Insurer, the Depositor, the
Master Servicer, Securities Administrator or the Trustee (i) to the extent
the
Insurer makes payments, directly or indirectly, on account of principal of
or
interest on any Insured Certificate to the Holder of such Certificate, the
Insurer will be fully subrogated to, and each Holder of the Insured
Certificates, the Securities Administrator and the Trustee hereby delegate
and
assign to the Insurer to the fullest extent permitted by law, the rights of
such
Holder to receive such principal and interest from the Trust Fund and (ii)
the
Insurer shall be paid such principal and interest but only from the sources
and
in the manner provided in the Policy, Insurance Agreement and herein for the
payment of such principal and interest.
The
Trustee,
the
Securities Administrator and the Master Servicer shall cooperate in all respects
with any reasonable request by the Insurer for action to preserve or enforce
the
Insurer’s rights or interests under this Agreement without limiting the rights
or affecting the interests of the Holders as otherwise set forth herein;
provided, however, that neither the Trustee nor the Securities Administrator
shall be under any obligation to institute, conduct or defend any litigation
hereunder or in relation hereto at the request, direction or order of the
Insurer pursuant to the provisions of this Agreement, unless the Insurer shall
have offered to the Trustee or the Securities Administrator, as applicable,
reasonable security or indemnity satisfactory to it against the costs, expenses
and liabilities which may be incurred therein or thereby.
SECTION
13.06. Notices
to Insurer.
All
notices, statements, reports, certificates, lists or opinions required by this
Agreement to be sent to the parties hereto, the Rating Agencies or the
Certificateholders shall also be sent, at the same time such statements,
reports, certificates, lists of opinions are otherwise sent, by overnight
delivery, telecopy or email to the Insurer. The Trustee, or the Securities
Administrator acting as its agent, shall forward to the Insurer any report
delivered to it, including, without limitation the exceptions report to be
delivered pursuant to the Custodial Agreement.
SECTION
13.07. Third
Party Beneficiary.
The
Certificate Insurer shall be an express third-party beneficiary of this
Agreement to the same extent as if it were a party hereto, and shall have the
right to enforce the provisions of this Agreement.
SECTION
13.08. Ratings
Assigned Without Regard to Policy.
All
references herein to ratings assigned to the Certificates and to the interests
of any Certificateholders shall be without regard to the Policy.
SECTION
13.09. Trustee
to Hold the Policy.
The
Trustee shall hold the Policy in trust as agent for the Holders of the Insured
Certificates for the purpose of making claims thereon and distributing the
proceeds thereof. Upon the later of (i) the date upon which the Certificate
Principal Balance of the Insured Certificates has been reduced to zero and
all
Regular Payments have been made and (ii) the date the Term of This Policy (as
defined in the Policy) ends, the Trustee shall surrender the Policy to the
Insurer for cancellation. Neither the Policy nor the amounts paid on the Policy
will constitute part of the Trust Fund or assets of any Trust REMIC created
by
this Agreement. Each Holder of an Insured Certificate, by accepting its Insured
Certificate, appoints the Trustee as attorney-in-fact for the purpose of making
claims on the Policy.
SECTION
13.10. Termination
of Certain of Insurer’s Rights.
Notwithstanding
anything to the contrary anywhere in this Agreement, all rights of the Insurer,
except in the case of any right to indemnification hereunder, shall permanently
cease to be operable upon the latest to occur of (A) the date upon which the
Certificate Principal Balance of each Insured Certificate has been reduced
to
zero and all Regular Payments (as defined in the Policy) have been made, (B)
the
date the Term of this Policy (as defined in the Policy) ends and (C) the payment
in full to the Certificate Insurer of all amounts paid under the Policy plus
interest at the Late Payment Rate thereon from the date such payment was made,
and any other amounts owing to the Insurer under this Agreement.
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:
|
/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
|
|
Name:
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
|
|
Title:
|
Vice
President
|
|
By:
|
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇
|
|
Name:
|
▇▇▇▇▇
▇. ▇▇▇▇▇
|
|
Title:
|
Vice
President
|
|
OCWEN
LOAN SERVICING, LLC
as
a Servicer
|
|
|
By:
|
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
|
|
Name:
|
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
|
Title:
|
Authorized
Representative
|
|
▇▇▇▇▇
FARGO BANK, NATIONAL ASSOCIATION
as
a Servicer
|
|
|
By:
|
/s/
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
|
|
Name:
|
▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇
|
|
Title:
|
Vice
President
|
|
HSBC
BANK USA, NATIONAL ASSOCIATION
not
in its individual capacity but solely as Trustee
|
|
|
By:
|
/s/
▇▇▇▇▇ ▇▇▇
|
|
Name:
|
▇▇▇▇▇
▇▇▇
|
|
Title:
|
Vice
President
|
|
▇▇▇▇▇
FARGO BANK, N.A.
as
Master Servicer and Securities Administrator
|
|
|
By:
|
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|
Name:
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
|
|
Title:
|
Vice
President
|
|
Acknowledged
and Agreed for purposes of Section 9.05:
DB
STRUCTURED PRODUCTS, INC
|
|
|
By:
|
/s/
▇▇▇▇▇ ▇▇▇▇▇▇▇
|
|
Name:
|
▇▇▇▇▇
▇▇▇▇▇▇▇
|
|
Title:
|
Director
|
|
By:
|
/s/
▇▇▇▇ ▇▇▇▇▇▇▇▇
|
|
Name:
|
▇▇▇▇
▇▇▇▇▇▇▇▇
|
|
Title:
|
Director
|
|
Acknowledged
and Agreed for purposes of Section 7.08 and
7.09:
▇▇▇▇▇▇▇
FIXED INCOME SERVICES INC.
|
|
|
By:
|
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
|
|
Name:
|
▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
|
|
Title:
|
President
and General Counsel
|
|
STATE
OF
|
)
|
|
)
ss.:
|
|
|
COUNTY
OF
|
)
|
On
the
___ day of February 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
My
commission expires
|
[Notarial
Seal]
|
STATE
OF
|
)
|
|
)
ss.:
|
|
|
COUNTY
OF
|
)
|
On
the
___ day of February 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
My
commission expires
|
[Notarial
Seal]
|
STATE
OF
|
)
|
|
)
ss.:
|
|
|
COUNTY
OF
|
)
|
On
the
___ day of February 2006, before me, a notary public in and for said State,
personally appeared _____________________ known to me to be a
_____________________ of ▇▇▇▇▇ Fargo Bank, National Association, one of the
nationally banking associations that executed the within instrument, and also
known to me to be the person who executed it on behalf of said federally
chartered savings bank, 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
My
commission expires
|
[Notarial
Seal]
|
STATE
OF
|
)
|
|
)
ss.:
|
|
|
COUNTY
OF
|
)
|
On
the
___ day of February 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
My
commission expires
|
[Notarial
Seal]
|
STATE
OF
|
)
|
|
)
ss.:
|
|
|
COUNTY
OF
|
)
|
On
the
___ day of February 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 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
My
commission expires
|
[Notarial
Seal]
|
STATE
OF
|
)
|
|
)
ss.:
|
|
|
COUNTY
OF
|
)
|
On
the
___ day of February 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
My
commission expires
|
[Notarial
Seal]
EXHIBIT
A-1
FORM
OF
CLASS A-[1A][1B1][1B2][2A][2B][2C][2D] 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
THIS
CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATIONS IN SECTION 6.02(c)
OF THE POOLING AND SERVICING AGREEMENT.
|
Series
2006-HE1, Class A-[1A][1B1][1B2][2A][2B][2C][2D]
|
Aggregate
Certificate Principal Balance of the Class
A-[1A][1B1][1B2][2A][2B][2C][2D] Certificates as of the Issue Date:
$_____________
|
|
|
Pass-Through
Rate: Variable
|
Denomination:
$____________
|
|
|
Date
of Pooling and Servicing Agreement and Cut-off Date: February 1,
2006
|
Master
Servicer: ▇▇▇▇▇ Fargo Bank, N.A.
|
|
|
First
Distribution Date: March 27, 2006
|
Trustee:
HSBC Bank USA, National Association
|
|
|
No.
__
|
Issue
Date: February 28, 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, first and second
lien,
fixed and adjustable-rate 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-[1A][1B1][1B2][2A][2B][2C][2D]
Certificates as of the Issue Date) in that certain beneficial ownership interest
evidenced by all of the Class A-[1A][1B1][1B2][2A][2B][2C][2D] 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”), ▇▇▇▇▇
Fargo Bank, N.A. as a servicer (“▇▇▇▇▇ Fargo”), Ocwen Loan Servicing, LLC as a
servicer (“Ocwen,” together with ▇▇▇▇▇ Fargo, 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-[1A][1B1][1B2][2A][2B][2C][2D] 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-[1A][1B1][1B2][2A][2B][2C][2D] 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-[1A][1B1][1B2][2A][2B][2C][2D] 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, the Insurer 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 transferee of this
Certificate 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.
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 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-[1A][1B1][1B2][2A][2B][2C][2D] 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-2
FORM
OF
CLASS M-[1][2][3][4][5][6][7][8][9][10] 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-1
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
[AND]
CLASS M-9 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-HE1, Class M-[1][2][3][4][5][6][7][8][9][10]
|
Aggregate
Certificate Principal Balance of the Class
M-[1][2][3][4][5][6][7][8][9][10] Certificates as of the Issue
Date:
$______________
|
|
|
Pass-Through
Rate: Variable
|
Denomination:
$______________
|
|
|
Date
of Pooling and Servicing Agreement
and
Cut-off Date: February 1, 2006
|
Master
Servicer: ▇▇▇▇▇ Fargo Bank, N.A.
|
|
|
First
Distribution Date: March 27, 2006
|
Trustee:
HSBC Bank USA, National Association
|
|
|
No.___
|
Issue
Date: February 28, 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, first and second
lien,
fixed and adjustable-rate 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-[1][2][3][4][5][6][7][8][9][10] Certificates as of the Issue Date) in that
certain beneficial ownership interest evidenced by of all the Class
M-[1][2][3][4][5][6][7][8][9][10] 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”), ▇▇▇▇▇ Fargo Bank, N.A. as a servicer (“▇▇▇▇▇
Fargo”), Ocwen Loan Servicing, LLC as a servicer (“Ocwen,” together with ▇▇▇▇▇
Fargo, 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
M-[1][2][3][4][5][6][7][8][9][10] 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-[1][2][3][4][5][6][7][8][9][10] 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-[1][2][3][4][5][6][7][8][9][10] 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, the Insurer 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-[1][2][3][4][5][6][7][8][9][10] 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-3A
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 AND THE MEZZANINE
CERTIFICATES TO THE EXTENT DESCRIBED IN THE AGREEMENT REFERRED TO
HEREIN.
THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF
1933, AS AMENDED (THE “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 MAY BE MADE TO ANY PERSON, UNLESS THE TRANSFEREE
PROVIDES A CERTIFICATION PURSUANT TO SECTION 6.02(c) OF THE
AGREEMENT.
|
Series
2006-HE1, 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: February 1,
2006
|
Master
Servicer: ▇▇▇▇▇ Fargo Bank, N.A.
|
|
|
First
Distribution Date: March 27, 2006
|
Trustee:
HSBC Bank USA, National Association
|
|
|
No.
__
|
Issue
Date: February 28, 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, first and second
lien,
fixed and adjustable-rate 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 of 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”), ▇▇▇▇▇ Fargo Bank, N.A. as a servicer (“▇▇▇▇▇ Fargo”), Ocwen
Loan Servicing, LLC as a servicer (“Ocwen,” together with ▇▇▇▇▇ Fargo, 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 Amount
(as
defined in the Agreement) 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-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 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, the Insurer 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 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 or Regulation S 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, (ii)
if
such transfer is purportedly being made in reliance upon Rule 501(a) 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 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 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 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 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-3B
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
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 MAY BE MADE TO ANY PERSON, UNLESS THE TRANSFEREE
PROVIDES A CERTIFICATION PURSUANT TO SECTION 6.02(c) OF THE
AGREEMENT.
|
Series
2006-HE1, 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: February 1,
2006
|
Trustee:
HSBC Bank USA, National Association
|
|||
|
First
Distribution Date: March 27, 2006
|
Issue
Date: February 28, 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, first and second
lien,
fixed and adjustable-rate 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
of 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”), ▇▇▇▇▇ Fargo Bank, N.A. as a servicer (“▇▇▇▇▇
Fargo”), Ocwen Loan Servicing, LLC as a servicer (“Ocwen,” together with ▇▇▇▇▇
Fargo, 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 Amount
(as
defined in the Agreement) 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-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, the Insurer 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 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 or Regulation S 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, (ii)
if
such transfer is purportedly being made in reliance upon Rule 501(a) 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 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 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 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-4
FORM
OF
CLASS P CERTIFICATE
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES,
THIS CERTIFICATE IS A “REGULAR INTEREST” IN A “REAL ESTATE MORTGAGE INVESTMENT
CONDUIT,” AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF
THE INTERNAL REVENUE CODE OF 1986, AS MENDED (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 MAY BE MADE TO ANY PERSON, UNLESS THE TRANSFEREE
PROVIDES A CERTIFICATION PURSUANT TO SECTION 6.02(c) OF THE
AGREEMENT.
|
Series
2006-HE1, 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: February 1,
2006
|
Denomination:
$100.00
|
|
|
First
Distribution Date: March 27, 2006
|
Master
Servicer: ▇▇▇▇▇ Fargo Bank, N.A.
|
|
|
No.
__
|
Trustee:
HSBC Bank USA, National Association
|
|
|
Issue
Date: February 28, 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, first and second
lien,
fixed and adjustable-rate 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
of
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”), ▇▇▇▇▇ Fargo Bank, N.A. as a servicer (“▇▇▇▇▇
Fargo”), Ocwen Loan Servicing, LLC as a servicer (“Ocwen,” together with ▇▇▇▇▇
Fargo, 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, the Insurer 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 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 or Regulation S 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, (ii)
if
such transfer is purportedly being made in reliance upon Rule 501(a) 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 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 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 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-5
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.
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.
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 INTERNAL REVENUE CODE OF 1986, SHALL BE DEEMED
TO HAVE MADE THE REPRESENTATIONS OR PROVIDED THE OPINION OF COUNSEL IN SECTION
6.02(c) OF THE POOLING AND SERVICING AGREEMENT.
|
Series
2006-HE1, 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: February 1, 2006
|
Master
Servicer: ▇▇▇▇▇ Fargo Bank, N.A.
|
|
|
First
Distribution Date: March 27, 2006
|
Trustee:
HSBC Bank USA, National Association
|
|
|
No
__
|
Issue
Date: February 28, 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, first and second
lien,
fixed and adjustable-rate 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
of 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”), ▇▇▇▇▇ Fargo Bank, N.A. as a servicer (“▇▇▇▇▇
Fargo”), Ocwen Loan Servicing, LLC as a servicer (“Ocwen,” together with ▇▇▇▇▇
Fargo, 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 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 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, the Insurer 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 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
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
B-1
FORM
OF
TRANSFEROR REPRESENTATION LETTER
[Date]
▇▇▇▇▇
Fargo Bank, N.A.
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Corporate Trust ACE 2006-HE1
|
Re:
|
ACE
Securities Corp. Home Equity Loan Trust, Series 2006-HE1 Asset
Backed
Pass-Through Certificates
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 February 1, 2006, among
ACE
Securities Corp. as Depositor, ▇▇▇▇▇ Fargo Bank, N.A. as Master Servicer
and
Securities Administrator, ▇▇▇▇▇ Fargo Bank, N.A. 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-HE1
|
Re:
|
ACE
Securities Corp. Home Equity Loan Trust, Series 2006-HE1
Asset
Backed Pass-Through Certificates
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) 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.
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 Servicer 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
February 1, 2006, among ACE Securities Corp. as Depositor, ▇▇▇▇▇ Fargo Bank,
N.A. as Master Servicer and Securities Administrator, ▇▇▇▇▇ Fargo Bank, N.A.
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-HE1
|
Re:
|
ACE
Securities Corp. Home Equity Loan Trust, Series 2006-HE1 Asset
Backed
Pass-Through Certificates, Class CE-1 Certificates, Class CE-2
Certificates and/or Class P
Certificates
|
Ladies
and Gentlemen:
Reference
is hereby made to the Pooling and Servicing Agreement (the “Agreement”), dated
as of February 1, 2006, among ACE Securities Corp. (the “Depositor”), ▇▇▇▇▇
Fargo Bank, N.A., as master servicer and securities administrator (the “Master
Servicer”), ▇▇▇▇▇ Fargo Bank, N.A. as a servicer (“▇▇▇▇▇ Fargo”), Ocwen Loan
Servicing, LLC as a servicer (“Ocwen,” together with ▇▇▇▇▇ Fargo, 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
[CE-1][CE-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 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-HE1
|
Re:
|
ACE
Securities Corp. Home Equity Loan Trust, Series 2006-HE1
Asset
Backed Pass-Through Certificates,
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 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.
|
Very
truly yours,
|
||||||||
|
___________________________________________
|
||||||||
|
(Transferor)
|
||||||||
|
By:
|
||||||||
|
Name:
|
||||||||
|
Title:
|
||||||||
FORM
OF
TRANSFEREE LETTER
_______________,
20__
▇▇▇▇▇
Fargo Bank, N.A.
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Corporate Trust ACE 2006-HE1
|
Re:
|
ACE
Securities Corp. Home Equity Loan Trust, Series 2006-HE1
Asset
Backed Pass-Through Certificates,
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 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) 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.
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.
|
Very
truly yours,
|
||||||||
|
By:
|
||||||||
|
Name:
|
||||||||
|
Title:
|
||||||||
EXHIBIT
B-3
TRANSFER
AFFIDAVIT AND AGREEMENT
|
STATE
OF NEW YORK
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF NEW YORK
|
)
|
___________________________
being duly sworn, deposes, represents and warrants as follows:
|
1.
|
I
am a _____________________ of _______________________________ (the
“Owner”) a corporation duly organized and existing under the laws of
_________________________, the record owner of ACE Securities Corp.
Home
Equity Loan Trust, Series 2006-HE1 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.
|
|
2.
|
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.
|
|
3.
|
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.
|
|
4.
|
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.)
|
|
5.
|
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.
|
|
6.
|
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.
|
|
7.
|
The
Owner’s taxpayer identification number is
________________.
|
|
8.
|
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.
|
|
9.
|
The
Owner is not acquiring and will not transfer the Class R Certificates
in
order to impede the assessment or collection of any
tax.
|
|
10.
|
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.
|
|
11.
|
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.
|
|
12.
|
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.
|
|
13.
|
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.
|
|
14.
|
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.
|
|
15.
|
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”.
|
|
16.
|
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.
|
|
17.
|
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 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 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.
|
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
_________________, ____.
|
[OWNER]
|
||||||||
|
By:
|
||||||||
|
Name:
|
||||||||
|
Title:
[Vice] President
|
||||||||
ATTEST:
|
By:
|
||
|
Name:
|
||
|
Title:
[Assistant] Secretary
|
Personally
appeared before me the above-named __________________, known or proved to
me to
be the same person who executed the foregoing instrument and to be a [Vice]
President of the 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 __________, ____.
| Notary Public | ||
| County of |
|
|
| State of |
|
|
| My Commission expires: | ||
FORM
OF
TRANSFEROR AFFIDAVIT
|
STATE
OF NEW YORK
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF NEW YORK
|
)
|
_________________________,
being duly sworn, deposes, represents and warrants as follows:
1. I
am
a ____________________
of _________________________ (the “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
________________, ____.
|
[OWNER]
|
||||||||
|
By:
|
||||||||
|
Name:
|
||||||||
|
Title:
[Vice] President
|
||||||||
ATTEST:
|
By:
|
||
|
Name:
|
||
|
Title:
[Assistant] Secretary
|
Personally
appeared before me the above-named _________________, known or proved to
me to
be the same person who executed the foregoing instrument and to be a [Vice]
President of the 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 _____________, ____.
| Notary Public | ||
| County of |
|
|
| State of |
|
|
| My Commission expires: | ||
EXHIBIT
C
BACK-UP
CERTIFICATION
Re: __________
(the “Trust”)
Mortgage
Pass-Through Certificates, Series 2006-HE1
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 the 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 the Master Servicer. Any material instances
of
noncompliance described in such reports have been disclosed to the Master
Servicer. Any material instance of noncompliance with the Servicing Criteria
has
been disclosed in such reports.
Capitalized
terms used and not otherwise defined herein have the meanings assigned thereto
in the Pooling and Servicing Agreement (the “Agreement”), dated as of February
1, 2006, among ACE Securities Corp. as Depositor, ▇▇▇▇▇ Fargo Bank, N.A.
as
Master Servicer and Securities Administrator, ▇▇▇▇▇ Fargo Bank, N.A. as a
Servicer, Ocwen Loan Servicing, LLC as a Servicer and HSBC Bank USA, National
Association as Trustee.
|
Date:
|
||
|
[Signature]
|
||
|
[Title]
|
||
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, N.A., as Master Servicer and Securities Administrator,
▇▇▇▇▇
Fargo Bank, N.A. as a servicer (“▇▇▇▇▇ Fargo”), Ocwen Loan Servicing, LLC as a
servicer (“Ocwen”) and the Trustee, dated as of February 1, 2006 (the “Pooling
and Servicing Agreement”), hereby constitutes and appoints [▇▇▇▇▇ Fargo/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:
| 1. |
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.
|
|
| 2. |
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.
|
|
| 3. |
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.
|
|
| 4. | The completion of loan assumption agreements. | |
| 5. |
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.
|
|
| 6. |
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.
|
|
| 7. |
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.
|
|
| 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:
|
|
| 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,
▇▇▇▇▇ Fargo, Ocwen. 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
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by [the Servicer] [the Master Servicer]
[Name of Subservicer] shall address, at a minimum, the criteria identified
as
below as “Relevant Servicing Criteria”:
|
SERVICING
CRITERIA
|
RELEVANT
SERVICING CRITERIA
|
|
|
Reference
|
Criteria
|
|
|
|
General
Servicing Considerations
|
|
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
X
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance
with the
terms of the transaction agreements.
|
X
|
|
|
Cash
Collection and Administration
|
X
|
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial
bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
|
X
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
X
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
X
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
X
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
X
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities
related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their
original
identification, or such other number of days specified in the transaction
agreements.
|
X
|
|
|
Investor
Remittances and Reporting
|
X
|
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission,
are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
|
X
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with
timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the
Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
X
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
X
|
|
|
Pool
Asset Administration
|
X
|
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the
transaction
agreements or related mortgage loan documents.
|
X
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements
|
X
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements
in the
transaction agreements.
|
X
|
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance with
the
related mortgage loan documents are posted to the Servicer’s obligor
records maintained no more than two business days after receipt,
or such
other number of days specified in the transaction agreements, and
allocated to principal, interest or other items (e.g., escrow)
in
accordance with the related mortgage loan documents.
|
X
|
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
X
|
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's mortgage loans
(e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
X
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
X
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period
a mortgage
loan is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent mortgage loans including, for
example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
X
|
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with variable
rates are computed based on the related mortgage loan
documents.
|
X
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s mortgage loan
documents, on at least an annual basis, or such other period specified
in
the transaction agreements; (B) interest on such funds is paid,
or
credited, to obligors in accordance with applicable mortgage loan
documents and state laws; and (C) such funds are returned to the
obligor
within 30 calendar days of full repayment of the related mortgage
loans,
or such other number of days specified in the transaction
agreements.
|
X
|
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
X
|
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
X
|
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
X
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
X
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set
forth in
the transaction agreements.
|
|
|
|
|
|
[NAME
OF
SERVICER] [MASTER SERVICER] [NAME OF SUBSERVICER]
| Date: | |||
| By: | |||
| Name: | |||
| Title: |
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
|
|
|
|
X
|
|
|
(iii) maintenance
of back-up servicer for pool assets
|
|
|
|
|
|
|
|
|
|
(iv) fidelity
bond and E&O policies in effect
|
|
|
X
|
|
|
|
X
|
|
|
(2) Cash
Collection and Administration
|
|
|
|
|
|
|
|
|
|
(i) timing
of deposits to custodial account
|
|
|
X
|
|
|
X
|
X
|
X
|
|
(ii) wire
transfers to investors by authorized personnel
|
|
|
X
|
|
|
X
|
|
X
|
|
(iii) advances
or guarantees made, reviewed and approved as required
|
|
|
X
|
|
|
|
X
|
|
|
(iv) accounts
maintained as required
|
|
|
X
|
|
|
X
|
X
|
X
|
|
(v) accounts
at federally insured depository institutions
|
|
|
X
|
|
|
X
|
X
|
X
|
|
(vi) unissued
checks safeguarded
|
|
|
X
|
|
|
X
|
|
X
|
|
(vii) monthly
reconciliations of accounts
|
|
|
X
|
|
|
X
|
X
|
X
|
|
(3) Investor
Remittances and Reporting
|
|
|
|
|
|
|
|
|
|
(i) investor
reports
|
|
|
X
|
|
|
|
X
|
X
|
|
(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
|
|
|
|
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
[FILED
WITH THE SEC]
MORTGAGE
LOAN PURCHASE AGREEMENT
This
is a
Mortgage Loan Purchase Agreement (this “Agreement”), dated February 28, 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-HE1, Asset Backed Pass-Through Certificates
(the “Certificates”). The Certificates will consist of twenty-one 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-HE1, Asset Backed Pass-Through Certificates, dated as of February
1, 2006
(the “Pooling and Servicing Agreement”), among the Purchaser as depositor, ▇▇▇▇▇
Fargo Bank, National Association as a Servicer, as master servicer (the
“Master
Servicer”), Ocwen Loan Servicing LLC as a Servicer, and securities administrator
(the “Securities Administrator”)
and HSBC
Bank USA, National Association as trustee (the “Trustee”). The Purchaser will
sell the Class A-1A, the Class A-1B1 and Class A-1B2 Certificates (collectively,
the “Class A-1 Certificates”), Class A-2A, Class A-2B, Class A-2C and Class A-2D
Certificates (collectively, the “Class A-2 Certificates”), the Class M-1, 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 M-10 (collectively, the “Mezzanine Certificates”) to Deutsche Bank
Securities Inc. (“DBSI”), pursuant to the Second 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 February 24, 2006 (collectively, the “Underwriting Agreement”),
between the 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 February 28,
2006
(the “Closing Date”), certain conventional, one- to four-family, fixed-rate and
adjustable-rate, residential, first and second lien, residential mortgage
loans
(the “Mortgage Loans”), having an aggregate principal balance as of the close of
business on February 1, 2006 (the “Cut-off Date”) of approximately
$2,535,701,903 (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 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.
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 first lien or 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 related Servicer 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 with
respect to second lien Mortgage Loans, the subordination to the first lien)
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 first or 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 with respect to second lien Mortgage Loans, the subordination
to the
related first lien), pledge, charge, claim or security interest and immediately
upon the sale, assignment and endorsement of the Mortgage Loans from the
Seller
to the Purchaser, the Purchaser shall have good and indefeasible title
to and be
the sole legal owner of the Mortgage Loans subject only to any encumbrance,
equity, lien, pledge, charge, claim or security interest arising out of
the
Purchaser’s actions;
(xiii) Each
Mortgage Loan is covered by a valid and binding American Land Title Association
lender’s title insurance policy issued by a title insurer qualified to do
business in the jurisdiction where the Mortgaged Property is located. 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 26.45% of the the Group IA Mortgage Loans,
approximately 20.89% of the Group IB Mortgage Loans and approximately 43.10%
of
the Group II Mortgage Loans by aggregate principal balance as of the Cut-off
Date, which are interest-only loans, each Mortgage Note is payable on the
first
day of each month in equal monthly installments or principal and interest
(subject ot adjustment in the case of the adjustable rate Mortgage Loans),
with
interest calculated on a 30/360 basis and payable in arrears, sufficient
to
amortize the Mortgage Loan fully by the stated maturity date over an original
term from commencement of amortization to not more than 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 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 first or 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, 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) The
Mortgage Interest Rate with respect to the Adjustable Rate Mortgage Loans
is
subject to adjustment at the time and in the amounts as are set forth in
the
related Mortgage Note;
(xxxvii) No
Mortgage Loan contains a provision whereby the Mortgagor can convert an
Adjustable Rate Mortgage Loan into a Fixed Rate Mortgage Loan;
(xxxviii) With
respect to each Group IB Mortgage Loan, no Mortgagor was required to purchase
any single premium credit insurance policy (e.g., life, mortgage, disability,
accident, unemployment, or health insurance product) or debt cancellation
agreement as a condition of obtaining the extension of credit. No proceeds
from
any Group IB Mortgage Loan were used to purchase single premium credit
insurance
policies or debt cancellation agreements as part of the origination of,
or as a
condition to closing, such Mortgage Loan; With respect to each Group IA
and
Group IB Mortgage Loan, no borrower obtained a prepaid single-premium
credit-life, credit disability, credit unemployment or credit property
insurance
policy (e.g., life, mortgage, disability, accident, unemployment, or health
insurance product) in connection with the origination of such Group IA
or Group
IB Mortgage Loan;
(xxxix) With
respect to any Group IA Mortgage Loan that contains a provision permitting
imposition of a premium upon a prepayment prior to maturity: (i) prior
to such
Group IA Mortgage Loan’s origination, the borrower agreed to such premium in
exchange for a monetary benefit, including but not limited to a rate or
fee
reduction, (ii) prior to such Group IA Mortgage Loan’s origination, the borrower
was offered the option of obtaining a mortgage loan that did not require
payment
of such a premium, (iii) the prepayment premium is adequately disclosed
to the
borrower pursuant to applicable state and federal law, (iv) no Group IA
Mortgage
Loan originated on or after October 1, 2002 will impose a prepayment premium
for
a term in excess of three years and any Group IA Mortgage Loan originated
prior
to such date, will not impose Prepayment Charges in excess of five years;
in
each case unless such Group I Mortgage Loan was modified to reduce the
prepayment period to no more than three years from the date of the Mortgage
Note
and the borrower was notified in writing of such reduction in prepayment
period,
and (v) notwithstanding any state or federal law to the contrary, the Servicer
shall not impose such prepayment premium in any instance when such Group
IA
Mortgage Loan is accelerated or paid off in connection with the workout
of a
delinquent Mortgage or due to borrower’s default;
(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) Each
Group IB Mortgage Loan is in compliance with the anti-predatory lending
eligibility for purchase requirements of ▇▇▇▇▇▇ Mae’s Selling
Guide;
(xliii) 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);
(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) The
Servicer for each Group IA Mortgage Loan has fully furnished, and will
fully
furnish, in accordance with the Fair Credit Reporting Act and its implementing
regulations, accurate and complete information (i.e., favorable and unfavorable)
on its borrower credit files to Equifax, Experian, and Trans Union Credit
Information Company (three of the credit repositories), on a monthly
basis;
(xlvii) The
original principal balance of each Group IA Mortgage Loan which is secured
by a
first or second lien on the related Mortgaged Property is within ▇▇▇▇▇▇▇
Mac’s
dollar amount limits for conforming one-to-four family mortgage loans;
(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) With
respect to any Group IA or Group IB Mortgage Loan originated on or after
August
1, 2004, neither the related Mortgage nor the related Mortgage Note requires
the
borrower to submit to arbitration to resolve any dispute arising out of
or
relating in any way to the Mortgage Loan transaction;
(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(d) 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
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);
(lix) No
Group
IB Mortgage Loan is a balloon mortgage loan that has an original stated
maturity
of less than seven (7) years;
(lx) With
respect to each Group IB Mortgage Loan, no borrower was encouraged or required
to select a mortgage loan product offered by the originators which is a
higher
cost product designed for less creditworthy borrowers, unless at the time
of
such Group IB Mortgage Loan’s origination, such borrower did not qualify taking
into account credit history and debt to income ratios for a lower cost
credit
product then offered by the originator or any affiliate of the originator.
If,
at the time of loan application, the borrower may have qualified for a
lower
cost credit product then offered by any mortgage lending affiliate of the
originator, the originator referred the borrower’s application to such affiliate
for underwriting consideration;
(lxi) With
respect to each Group IA Mortgage Loan and each Group IB Mortgage Loan,
the
methodology used in underwriting the extension of credit employed objective
mathematical principles which relate the borrower's income, assets and
liabilities to the proposed payment and such underwriting methodology does
not
rely on the extent of the borrower's equity in the collateral as the principal
determining factor in approving such credit extension. Such underwriting
methodology confirmed that at the time of origination the borrower had
a
reasonable ability to make timely payments on such Mortgage Loan;
(lxii) With
respect to each Group IB Mortgage Loan that contains a provision permitting
imposition of a premium upon a prepayment prior to maturity: (i) prior
to the
loan's origination, the borrower agreed to such premium in exchange for
a
monetary benefit, including but not limited to a rate or fee reduction,
(ii)
prior to the loan's origination, the borrower was offered the option of
obtaining a mortgage loan that did not require payment of such a premium,
(iii)
the prepayment premium is disclosed to the borrower in the loan documents
pursuant to applicable state and federal law, (iv) for loans originated
on or
after September 1, 2004, the duration of the prepayment period shall not
exceed
three (3) years from the date of the note, unless the loan was modified
to
reduce the prepayment period to no more than three years from the date
of the
note and the borrower was notified in writing of such reduction in prepayment
period, and (v) notwithstanding any state or federal law to the contrary,
the
related Servicer shall not impose such prepayment premium in any instance
when
the mortgage debt is accelerated as the result of the borrower's default
in
making the loan payments;
(lxiii) All
points and fees related to each Group IB Mortgage Loan were disclosed in
writing
to the Mortgagor in accordance with applicable state and federal law and
regulation. Except in the case of a Group IB Mortgage Loan in an original
principal amount of less than $60,000 which would have resulted in an
unprofitable origination, no Mortgagor was charged “points and fees” (whether or
not financed) in an amount greater than 5% of the principal amount of such
loan,
such 5% limitation is calculated in accordance with ▇▇▇▇▇▇ Mae's anti-predatory
lending requirements as set forth in the ▇▇▇▇▇▇ ▇▇▇ Selling Guide;
(lxiv) All
points, fees and charges (including finance charges) and whether or not
financed, assessed, collected or to be collected in connection with the
origination and servicing of each Group IA Mortgage Loan and each Group
IB
Mortgage Loan has been disclosed in writing to the borrower in accordance
with
applicable state and federal law and regulation;
(lxv) The
related Servicer will transmit full-file credit reporting data for each
Group IB
Mortgage Loan pursuant to ▇▇▇▇▇▇ Mae Guide Announcement 95-19 and that
for each
Group IB Mortgage Loan, the related Servicer will report one of the following
statuses each month as follows: new origination, current, delinquent (30-,
60-,
90-days, etc.), foreclosed, or charged-off;
(lxvi) With
respect to any Mortgage Loan that is secured by a second lien on the related
Mortgaged Property, 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;
(lxvii) With
respect to each Group IA Mortgage Loan, such Group IA Mortgage Loan’s originator
offered the borrower mortgage loan products offered by such Mortgage Loan’s
originator, or any affiliate of such Mortgage Loan’s originator, for which the
borrower qualified;
(lxviii) With
respect to a Mortgage Loan which is a second lien, 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;
(lxix) With
respect to a Group IA Mortgage Loan which is a second lien, (a) such second
lien
Group IA Mortgage Loan is secured by a one- to four-family residence that
was
(or would be) the principal residence of the Mortgagor upon the origination
of
the second lien Mortgage Loan, (b) the origination amount for such second
lien
Group IA Mortgage Loan did not exceed one-half of the one-unit limitation
set
forth by ▇▇▇▇▇▇▇ Mac for first lien mortgage loans, and (c) the aggregate
original principal balance for the first lien and the second lien mortgage
Loan
do not exceed ▇▇▇▇▇▇▇ Mac’s applicable loan limits for first lien mortgage loans
for properties of the same type as the related Mortgaged Property;
(lxx) No
borrower under a Group IA Mortgage Loan was charged “points and fees” in an
amount greater than (a) $1,000 or (b) 5% of the principal amount of such
Group
IA Mortgage Loan, whichever is greater. For purposes of this representation,
“points and fees” (x) include origination, underwriting, broker and finder’s
fees and charges that the lender imposed as a condition of making such
Group IA
Mortgage Loan, whether they were paid to the lender or a third party; and
(y)
exclude bona fide discount points, fees paid for actual services rendered
in
connection with the origination of the mortgage (such as attorney’s fees,
notaries fees and fees paid for property appraisals, credit reports, surveys,
title examinations and extracts, flood and tax certifications, and home
inspections); the cost of mortgage insurance or credit-risk price adjustments;
the costs of title, hazard, and flood insurance policies; state and local
transfer taxes or fees; escrow deposits for the future payment of taxes
and
insurance premiums; and other miscellaneous fees and charges that, in total,
do
not exceed 0.25 percent of the loan amount;
(lxxi) 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;
(lxxii) The
information set forth in the Closing Schedule is true and correct in all
material respects as of the Cut-off Date; and
(lxxiii) 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.
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. Notwithstanding anything to the contrary
contained herein, any breach of a representation or warranty contained
in
clauses (viii), (xxxiv), (xxxviii), (xxxix), (xl), (xli), (xlvi), (xlvii),
(lvi), (lxi), (lxiv), (lxvii), (lxix) and/or (lxx) of Section 6 above,
shall be
automatically deemed to affect materially and adversely the interests of
the
Purchaser or the Purchaser’s assignee, transferee or designee.
Upon
discovery by the Seller, the Purchaser or any assignee, transferee or designee
of the Purchaser of any materially defective document in, or that any material
document was not transferred by the Seller, as listed on a Custodian’s
preliminary exception report, as described in the 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 related 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 such Servicer for deposit into the Collection
Account.
(c) It
is
understood and agreed that the obligations of the Seller set forth in this
Section 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 applicable Servicer. For so long as
the Master Servicer master services the Mortgage Loans and the Servicers
service
the related Mortgage Loans, the Master Servicer shall be entitled to the
Master
Servicing Fee and each Servicer shall be entitled to its Servicing Fee
and such
other payments as provided for under the terms of the Pooling and Servicing
Agreement or the Servicing Agreement, as applicable.
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.
* Please
contact the Mortgage Loan Seller for this information.
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: | |||
|
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 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 5.02 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
|
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
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
E-mail:
▇▇▇.▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
Attn:
Corporate Trust Services - ACE 2006-HE1 - SEC REPORT PROCESSING
ACE
Securities Corp.
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇)
Attn:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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
[FILED
WITH THE SEC]
|
Financial
Markets
▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
|
|
|
February
28, 2006
|
|
▇▇▇▇▇
Fargo Bank, National Association as Securities Administrator
on behalf of
the Supplemental Interest Trust with respect to Ace Securities
Corp. Home
Equity Loan Trust, Series 2006-HE1, Asset Backed Pass-Through
Certificates
(“Party
B”)
▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Tel:
▇▇▇-▇▇▇-▇▇▇▇
Attn:
Client Manager, ACE 2006-HE1
Fax:
▇▇▇-▇▇▇-▇▇▇▇
|
|
|
c/o
RBS Financial Markets
▇▇▇▇▇
▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ 3UR
Attn:
Head of Legal, Financial Markets
Tel:
▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Fax:
▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
|
|
|
Copy
To:
|
Greenwich
Capital Markets, Inc.
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn:
Legal Department - Derivatives Documentation
Tel.:
▇▇▇-▇▇▇-▇▇▇▇/32
Fax:
▇▇▇-▇▇▇-▇▇▇▇/34
|
|
|
Our
Reference Number:
|
||
The
purpose of this letter agreement is to confirm the terms and conditions
of the
Transaction entered into between Party A and ▇▇▇▇▇ Fargo Bank, National
Association as Securities Administrator under the Pooling and Servicing
Agreement (the “Pooling
and Servicing Agreement”),
dated
and effective as of February 1, 2006, among Ace Securities Corp., as
Depositor, Ocwen Loan Servicing, LLC, as Servicer, ▇▇▇▇▇ Fargo Bank, National
Association, as Master Servicer and Securities Administrator and HSBC Bank
USA,
National Association, as trustee (each a “party”
and
together “the
parties”)
on the
Trade Date specified below (the “Transaction”).
This
letter agreement constitutes the sole and complete “Confirmation”,
as
referred to in the Master Agreement as well as a “Schedule”
as
referred to in the Master Agreement.
This
letter agreement constitutes a “Confirmation”
and
the
definitions and provisions contained in the 2000 ISDA Definitions (the
“Definitions”)
as
published by the International Swaps and Derivatives Association, Inc.,
(“ISDA”)
are
incorporated into this Confirmation. This Confirmation will be governed
by and
subject to the terms and conditions which would be applicable if, prior
to the
Trade Date, the parties had executed and delivered an ISDA Master Agreement
(Multicurrency-Cross Border), in the form published by ISDA in 1992 (the
“Master
Agreement”),
with
the attached Schedule B as the Schedule to the Master Agreement and the
modifications provided below (collectively, the “Agreement”).
In
the event of any inconsistency between the provisions of the Master Agreement
and this Confirmation and the attached Schedule B, this Confirmation will
govern. Terms capitalized but not defined herein or in the Definitions
incorporated herein shall have the respective meanings attributed to them
in the
Pooling and Servicing Agreement.
|
1
|
This
Confirmation evidences a complete binding agreement between the
parties as
to the terms of the Transaction to which this Confirmation relates.
In
addition, each party represents to the other party and will be
deemed to
represent to the other party on the date on which it enters into
a
Transaction that (absent a written agreement between the parties
that
expressly imposes affirmative obligations to the contrary for
that
Transaction):
|
|
(i)
|
Principal
In
the case of Party A, it is acting as principal and not as agent
when
entering into the Transaction and in the case of Party B, it
is acting as
Securities Administrator when entering into the
Transaction.
|
|
(ii)
|
Non-Reliance
In
the case of Party A, it is acting for its own account and, in
the case of
Party B, it is acting as Securities Administrator, and in the
case of both
parties, it has made its own independent decisions to enter into
the
Transaction and as to whether the Transaction is appropriate
or proper for
it based upon its own judgment and upon advice from such advisors
as it
has deemed necessary and, with respect to Party B, as directed
under the
Pooling and Servicing Agreement. It is not relying on any communication
(written or oral) of the other party as investment advice or
as a
recommendation to enter into the Transaction; it being understood
that
information and explanations related to the terms and conditions
of the
Transaction shall not be considered investment advice or a recommendation
to enter into the Transaction. No communication (written or oral)
received
from the other party shall be deemed to be an assurance or guarantee
as to
the expected results of the
Transaction.
|
|
(iii)
|
Evaluation
and Understanding
It
is capable of evaluating and understanding (on its own behalf
or through
independent professional advice), and understands and accepts,
the terms,
conditions and risks of the Agreement and that Transaction. It
is also
capable of assuming, and assumes, the financial and other risks
of the
Agreement and that Transaction.
|
|
(iv)
|
Status
of Parties
The other party is not acting as an agent, fiduciary or advisor
for it in
respect of that Transaction.
|
|
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 on Schedule
A
attached hereto.
|
|
Trade
Date:
|
February
14, 2006
|
|
Effective
Date:
|
February
28, 2006
|
|
Termination
Date:
|
October 25,
2009, subject to adjustment in accordance with the Business Day
Convention.
|
|
Fixed
Amounts:
|
|
|
Fixed
Rate Payer:
|
Party
B
|
|
Fixed
Rate Payer Period
End
Dates:
|
The
25th
day of each month of each year commencing March 25, 2006, through and
including the Termination Date, subject to no
adjustment.
|
|
Fixed
Rate Payer
Payment
Dates:
|
Early
Payment shall be applicable. The Fixed Rate Payer Payment Dates
shall be
one (1) Business Day prior to each Fixed Rate Payer Period End
Date,
subject to adjustment in accordance with the Business Day
Convention.
|
|
Fixed
Rate:
|
4.76%
|
|
Fixed
Rate Day
Count
Fraction:
|
30/360
|
|
Upfront
Fee:
|
Party
B will pay USD 11,090,000 to Party A on the Effective
Date.
|
|
Floating
Amounts:
|
|
|
Floating
Rate Payer:
|
Party
A
|
|
Floating
Rate Payer Period End Dates:
|
The
25th
day of each month of each year commencing March 25, 2006, through and
including the Termination Date, subject to adjustment in accordance
with
the Business Day Convention.
|
|
Floating
Rate Payer Payment Dates:
|
Early
Payment shall be applicable. The Floating Rate Payer Payment
Dates shall
be one (1) Business Day prior to each Floating Rate Payer Period
End Date,
subject to adjustment in accordance with the Business Day
Convention.
|
|
Floating
Rate Option:
|
USD-LIBOR-BBA
|
|
Designated
Maturity:
|
One
month
|
|
Spread:
|
None
|
|
Floating
Rate Day Count Fraction:
|
Actual/360
|
|
Reset
Dates:
|
First
day of each Calculation Period
|
|
Business
Days for payment:
|
New
York
|
|
Business
Day Convention:
|
Modified
Following
|
|
Calculation
Agent:
|
Party
A
|
|
3
|
Recording
of Conversations
|
Each
party (i) consents to the recording of the telephone conversations of trading
and marketing personnel of the parties and (ii) agrees to obtain any necessary
consent of, and give notice of such recording to, such personnel of
it.
|
4
|
Account
Details:
|
|
Account
for payments to Party A:
|
For
the account of The Royal Bank of Scotland Financial Markets Fixed
Income
and Interest Rate Derivative Operations, London SWIFT ▇▇▇▇▇▇▇▇▇▇▇
with
JPMorgan Chase Bank, New York ▇▇▇▇▇▇▇▇, ABA # ▇▇▇▇▇▇▇▇▇
Account
Number 400930153
|
|
Account
for payments to Party B:
|
▇▇▇▇▇
Fargo Bank, NA
ABA
# ▇▇▇▇▇▇▇▇▇
Account
Name: SAS Clearing Account #▇▇▇▇▇▇▇▇▇▇
FFC
to: 50901302,
ACE 2006-HE1 Supplemental Interest Trust
Account
|
|
5
|
Offices:
|
|
The
Office of Party A for this Transaction is:
|
London
|
|
The
Office of Party B for this Transaction is:
|
Columbia,
Maryland
|
|
6
|
Other
Provisions:
|
|
6.1
|
Agency
Role of Greenwich Capital Markets, Inc. This Transaction has
been entered
into by Greenwich Capital Markets, Inc., as agent for The Royal
Bank of
Scotland plc. Greenwich Capital Markets, Inc. has not guaranteed
and is
not otherwise responsible for the obligations of Party A under this
Transaction.
|
|
6.2
|
Agreement
with Deutsche Bank AG. By executing this Agreement, Deutsche
Bank AG
(“Deutsche
Bank”)
hereby acknowledges and agrees with Party A that if, for any
reason
whatsoever on the Effective Date (i) the securitization transaction
contemplated by the Pooling and Servicing Agreement does not
close or (ii)
Party B does not execute and deliver this Agreement, then Deutsche
Bank
will instead face Party A as the counterparty to this Agreement
in place
of Party B and all references herein to “Party B” shall be construed
accordingly. The effectiveness and validity of this Agreement
will not in
any way be impaired by any failure of Party B to execute and
deliver this
Agreement on the Effective Date.
|
Please
promptly confirm that the foregoing correctly sets forth the terms of the
Transaction entered into between us by executing this Confirmation and
returning
it to us by facsimile to:
The
Royal Bank of Scotland plc
Attention:
Derivatives Documentation
Fax:
▇▇▇▇ ▇▇▇ ▇▇▇▇ / 6486 Phone: ▇▇▇▇ ▇▇▇ ▇▇▇▇
THE
ROYAL BANK OF SCOTLAND PLC
By:
Greenwich Capital Markets, Inc., its agent
| By | |||
| Name: | |||
| Title: |
Accepted
and confirmed as of the Trade Date written above:
▇▇▇▇▇
FARGO BANK, NATIONAL ASSOCIATION, not
individually but solely as Securities Administrator on behalf of the
Supplemental Interest Trust with respect to Ace Securities Corp. Home Equity
Loan Trust, Series 2006-HE1, Asset Backed Pass-Through Certificates
| By | |||
| Name: | |||
| Title: |
Schedule
A to the Confirmation dated as of February 28, 2006
Re:
Reference Number D6935065
Amortization
Schedule,
subject
to adjustment in accordance with the Business Day Convention
|
From
and Including
|
To
but Excluding
|
Notional
Amount (USD)
|
|
2/28/2006
|
3/25/2006
|
2,534,251,920
|
|
3/25/2006
|
4/25/2006
|
2,493,691,324
|
|
4/25/2006
|
5/25/2006
|
2,446,382,042
|
|
5/25/2006
|
6/25/2006
|
2,392,464,043
|
|
6/25/2006
|
7/25/2006
|
2,332,132,382
|
|
7/25/2006
|
8/25/2006
|
2,265,639,630
|
|
8/25/2006
|
9/25/2006
|
2,193,314,541
|
|
9/25/2006
|
10/25/2006
|
2,115,631,836
|
|
10/25/2006
|
11/25/2006
|
2,033,420,756
|
|
11/25/2006
|
12/25/2006
|
1,948,806,816
|
|
12/25/2006
|
1/25/2007
|
1,867,469,262
|
|
1/25/2007
|
2/25/2007
|
1,789,533,338
|
|
2/25/2007
|
3/25/2007
|
1,714,839,674
|
|
3/25/2007
|
4/25/2007
|
1,643,272,213
|
|
4/25/2007
|
5/25/2007
|
1,574,699,471
|
|
5/25/2007
|
6/25/2007
|
1,508,995,570
|
|
6/25/2007
|
7/25/2007
|
1,446,010,937
|
|
7/25/2007
|
8/25/2007
|
1,385,265,027
|
|
8/25/2007
|
9/25/2007
|
1,325,021,243
|
|
9/25/2007
|
10/25/2007
|
1,261,183,478
|
|
10/25/2007
|
11/25/2007
|
1,168,982,172
|
|
11/25/2007
|
12/25/2007
|
992,391,117
|
|
12/25/2007
|
1/25/2008
|
843,921,997
|
|
1/25/2008
|
2/25/2008
|
723,404,776
|
|
2/25/2008
|
3/25/2008
|
637,341,884
|
|
3/25/2008
|
4/25/2008
|
606,763,495
|
|
4/25/2008
|
5/25/2008
|
579,100,322
|
|
5/25/2008
|
6/25/2008
|
552,717,699
|
|
6/25/2008
|
7/25/2008
|
527,573,554
|
|
7/25/2008
|
8/25/2008
|
503,590,654
|
|
8/25/2008
|
9/25/2008
|
480,714,380
|
|
9/25/2008
|
10/25/2008
|
458,893,333
|
|
10/25/2008
|
11/25/2008
|
438,078,298
|
|
11/25/2008
|
12/25/2008
|
418,222,109
|
|
12/25/2008
|
1/25/2009
|
399,280,584
|
|
1/25/2009
|
2/25/2009
|
381,210,364
|
|
2/25/2009
|
3/25/2009
|
363,970,751
|
|
3/25/2009
|
4/25/2009
|
347,523,129
|
|
4/25/2009
|
5/25/2009
|
331,830,635
|
|
5/25/2009
|
6/25/2009
|
316,858,088
|
|
6/25/2009
|
7/25/2009
|
302,572,171
|
|
7/25/2009
|
8/25/2009
|
288,940,786
|
|
8/25/2009
|
9/25/2009
|
275,933,508
|
|
9/25/2009
|
10/25/2009
|
263,521,375
|
Schedule
B to the Confirmation dated as of February 28, 2006
Re:
Reference Number D6935065
Between
The Royal Bank of Scotland plc (“Party
A”)
and
▇▇▇▇▇ Fargo Bank, National Association as Securities Administrator on behalf
of
the Supplemental Interest Trust with respect to Ace Securities Corp. Home
Equity
Loan Trust, Series 2006-HE1, Asset Backed Pass-Through Certificates
(“Party
B”)
Part.
1 Termination
Provisions
|
(a)
|
“Specified
Entity”
means in relation to Party A for the purpose of the
Agreement:
|
Section
5(a)(v): none.
Section
5(a)(vi): none.
Section
5(a)(vii): none.
Section
5(b)(iv): none.
and
in
relation to Party B for the purpose of the Agreement:
Section
5(a)(v): none.
Section
5(a)(vi): none.
Section
5(a)(vii): none.
Section
5(b)(iv): none.
|
(b)
|
“Specified
Transaction”
is not applicable to Party A or Party B for any purpose, and
accordingly,
Section 5(a)(v) shall not apply to Party A or Party B.
|
|
(c)
|
The
“Breach
of Agreement”
provisions of Section 5(a)(ii) of the Agreement will be inapplicable
to
Party A and Party B.
|
|
(d)
|
The
“Credit
Support Default”
provisions of Section 5(a)(iii) of the Agreement will be inapplicable
to
Party A and Party B.
|
|
(e)
|
The
“Misrepresentation”
provisions of Section 5(a)(iv) of the Agreement will be inapplicable
to
Party A and Party B.
|
|
(f)
|
The
“Default
Under Specified Transaction”
provisions of Section 5(a)(v) of the Agreement will be inapplicable
to
Party A and Party B.
|
|
(g)
|
The
“Cross
Default”
provisions of Section 5(a)(vi) of the Agreement will be inapplicable
to
Party A and Party B.
|
|
(h)
|
The
“Bankruptcy”
provision of Section 5(a)(vii)(2) of the Agreement will be inapplicable
to
Party B.
|
|
(i)
|
The
“Credit
Event Upon Merger”
provisions of Section 5(b)(iv) of the Agreement will be inapplicable
to
Party A and Party B.
|
|
(j)
|
The
“Automatic
Early Termination”
provision of Section 6(a) of the Agreement will be inapplicable
to Party A
and Party B; provided that where there is an Event of Default
under
Section 5(a)(vii)(1), (3), (4), (5), (6) or, to the extent analogous
thereto, (8), and the Defaulting Party is governed by a system
of law that
does not permit termination to take place after the occurrence
of such
Event of Default, then the Automatic Early Termination provisions
of
Section 6(a) will apply.
|
|
If
an Early Termination Date has occurred under Section 6(a) of
the Agreement
as a result of Automatic Early Termination, and if the Non-defaulting
Party determines that it has either sustained or incurred a loss
or damage
or benefited from a gain in respect of any Transaction, as a
result of
movement in interest rates, currency exchange rates, other relevant
rates
or market quotations between the Early Termination Date and the
date upon
which the Non-defaulting Party first becomes aware that such
Event of
Default has occurred under Section 6(a) of the Agreement, then
(i) the
amount of such loss or damage shall be added to the amount due
by the
Defaulting Party or deducted from the amount due by the Non-defaulting
Party, as the case may be (in both cases pursuant to Section
6(e)(i)(3) of
the Agreement); or (ii) the amount of such gain shall be deducted
from the
amount due by the Defaulting Party or added to the amount due
by the
Non-defaulting Party, as the case may be (in both cases pursuant
to
Section 6(e)(i)(3) of the
Agreement).
|
|
(k)
|
Payments
on Early Termination For
the purpose of Section 6(e) of the
Agreement:
|
|
(i)
|
Market
Quotation will apply; and
|
|
(ii)
|
The
Second Method will apply.
|
|
(l)
|
“Termination
Currency”
means United States Dollars.
|
|
(m)
|
“Additional
Termination Event”
will not apply, except as provided in any
confirmation.
|
Part.
2 Tax
Representations
Payer
Representations For
the
purpose of Section 3(e) of the Agreement, each of Party A and Party B will
make
the following representation:
It
is not
required by any applicable law, as modified by the practice of any relevant
governmental revenue authority, of any Relevant Jurisdiction to make any
deduction or withholding for or on account of any Tax from any payment
(other
than interest under Section 2(e), 6(d)(ii) or 6(e) of the 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 Agreement, (ii) the satisfaction of the
agreement contained in Section 4(a)(i) or 4(a)(iii) of the 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 Agreement and (iii) the satisfaction
of
the agreement of the other party contained in Section 4(d) of the 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) of the Agreement by reason of material prejudice
to its
legal or commercial position.
Payee
Representations For
the
purpose of Section 3(f) of the Agreement, Party A and Party B make the
following
representations:
|
(i)
|
Party
A represents that
|
(A) it
is a
tax resident of the United Kingdom;
(B) 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 Party A provides written notice to Party B
that it is no longer a foreign person;
(C) in
respect of each Transaction it enters into through an office or discretionary
agent in the United States or which otherwise is allocated (in whole or
part)
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
(or portion thereof, if applicable) will be effectively connected with
its
conduct of a trade or business in the United States; and
(D) in
respect of all other Transactions or portions thereof, no such payment
received
or to be received by it in connection with this Agreement is attributable
to a
trade or business carried on by it through a permanent establishment in
the
United States.
|
(ii)
|
Party
B represents that it is the Securities Administrator under the
Pooling and
Servicing Agreement.
|
Part.
3 Agreement
to Deliver Documents
For
the
purpose of Sections 4(a)(i) and (ii) of the Agreement, Party A and Party
B agree
to deliver the following documents, as applicable:
|
(a)
|
Tax
forms, documents or certificates to be delivered
are:
|
|
Party
Required to Deliver Document
|
Form/Document/Certificate
|
Date
by Which to be Delivered
|
|
Party
A and Party B
|
Any
form or document required or reasonably requested to allow the
other party
to make payments under the Agreement without any deduction or
withholding
for or on account of any Tax, or with such deduction or withholding
at a
reduced rate.
|
Promptly
upon reasonable demand by the other
party.
|
|
(b)
|
Other
documents to be delivered and covered by the Section 3(d) representation
are:--
|
|
Party
required to deliver
|
Form/Document/or
Certificate
|
Date
by which to be delivered
|
Covered
by Section 3(d) representation
|
|
|
Party
A and Party B
|
Incumbency
Certificate (or, if available the current authorized signature
book or
equivalent authorizing documentation) specifying the names, titles,
authority and specimen signatures of the persons authorized to
execute the
Confirmation which sets forth the specimen signatures of each
signatory to
the Confirmation signing on its behalf.
|
Concurrently
with the execution and delivery of the Confirmation unless previously
delivered and still in full force and effect.
|
Yes
|
|
|
Party
B
|
The
Pooling
and Servicing Agreement
|
Concurrently
with the execution and delivery of the Confirmation.
|
No
|
|
|
Party
A and Party B
|
Legal
opinion[s] with respect to such party and its Credit Support
Provider, if
any, for it, reasonably satisfactory in form and substance to
the other
party relating to the enforceability of the party’s obligation under this
Agreement.
|
Upon
the execution and delivery of this Agreement and any
Confirmation
|
No
|
Part.
4 Miscellaneous
|
(a)
|
Addresses
for Notices For
the purposes of Section 12(a) of the
Agreement:
|
Addresses
for notices or communications to Party A and to Party B shall be those
set forth
on the first page of the Confirmation.
|
(b)
|
Process
Agent For
the purpose of Section 13(c) of the
Agreement:
|
Party
A
appoints as its Process Agent: none.
Party
B
appoints as its Process Agent: none.
|
(c)
|
Offices
With
respect to Party A, the provisions of Section 10(a) of the Agreement
will
apply.
|
|
(d)
|
Multibranch
Party For
the purpose of Section 10(c) of the
Agreement:
|
Party
A
is not a Multibranch Party.
Party
B
is not a Multibranch Party.
|
(e)
|
Calculation
Agent The
Calculation Agent is Party A.
|
|
(f)
|
Credit
Support Document Details
of any Credit Support Document:
none
|
|
(g)
|
Credit
Support Provider
|
Credit
Support Provider means in relation to Party A: none.
Credit
Support Provider means in relation to Party B: none.
|
(h)
|
Governing
Law This
Agreement will be governed by and construed in accordance with
the laws of
the State of New York (without reference to conflicts of law
doctrine
other than New York General Obligations Law Sections 5-1401 and
5-1402).
|
|
(i)
|
Netting
of Payments Subparagraph
(ii) of Section 2(c) of the Agreement will apply to the Transaction
evidenced by the Confirmation.
|
|
(j)
|
“Affiliate”
Party B shall be deemed to not have any Affiliates for purposes
of this
Transaction.
|
(k) Jurisdiction
Section
13(b) of the Agreement is hereby amended by: (i) deleting in the second
line of
subparagraph
(i) thereof the word “non-”: and (ii) deleting the final paragraph
thereof.
Part.
5 Other
Provisions
|
(a)
|
Modifications
to the Agreement Section
3(a) of the Agreement shall be amended to include the following
additional
representations after paragraph
3(a)(v):
|
(vi)
Eligible
Contract Participant etc.
It is
an “eligible contract participant” as defined in Section 1a(12) of the U.S.
Commodity Exchange Act (7 U.S.C. 1a), as amended by the Commodity Futures
Modernization Act of 2000 and the Transaction evidenced hereby has been
the
subject of individual negotiations and is intended to be exempt from, or
otherwise not subject to regulation thereunder.
|
(b)
|
Waiver
of Right to Trial by Jury Each
party hereby irrevocably waives any and all rights to trial by
jury in any
legal proceeding arising out of or relating to this Agreement
or any
Transaction hereunder.
|
|
(c)
|
Absence
of Litigation In
Section 3(c) of the Agreement the words “or any of its Affiliates” shall
be deleted.
|
|
(d)
|
Tax
Event In
Section 5(b)(ii)(y) of the Agreement the words “, or there is a
substantial likelihood that it will,” shall be
deleted.
|
(e) Transfer
and Amendment
Subject
to Part 5(j) herein, no transfer, amendment, waiver, supplement, assignment
or
other modification of this Transaction shall be permitted by either party
unless
(i) each of Standard and Poor’s Ratings Services, a Division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc. (“S&P”), Fitch Ratings (“Fitch”) and ▇▇▇▇▇’▇ Investors
Service, Inc. (“Moody’s) (each a “Rating Agency”) has been provided notice of
the same and (ii) each of S&P, Fitch and Moody’s confirm in writing
(including by facsimile transmission) that they will not downgrade, qualify,
withdraw or otherwise modify their then-current rating of the
Certificates.
(f) Limitation
of Liability
It
is
expressly understood and agreed by the parties hereto that (a) this Confirmation
is executed and delivered by ▇▇▇▇▇ Fargo Bank, N.A. (“▇▇▇▇▇”),
not
individually or personally but solely as the Securities Administrator under
the
Pooling and Servicing Agreement on behalf of the Supplemental Interest
Trust
with respect to Ace Securities Corp. Home Equity Loan Trust, Series 2006-HE1,
Asset Backed Pass-Through Certificates, in the exercise of the powers and
authority conferred and vested in it, (b) the representations, undertakings
and
agreements herein made on the part of Party B are made and intended not
as
personal representations, undertakings and agreements by ▇▇▇▇▇ but are
made and
intended for the purpose of binding only Party B, (c) nothing herein contained
shall be construed as creating any liability on ▇▇▇▇▇, individually or
personally, to perform any covenant either expressed or implied contained
herein, all such liability, if any, being expressly waived by the parties
who
are signatories to this Confirmation and by any person claiming by, through
or
under such parties, and (d) under no circumstances shall ▇▇▇▇▇ be personally
liable for the payment of any indebtedness or expenses of the Supplemental
Interest Trust with respect to Ace Securities Corp. Home Equity Loan Trust,
Series 2006-HE1 or be personally liable for the breach or failure of any
obligation, representation, warranty or covenant made or undertaken by
Party B
under this Confirmation.
|
(g)
|
Proceedings
|
Party
A
shall not institute against or cause any other person to institute against,
or
join any other person in instituting against, Party B, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or
other
proceedings under any federal or state bankruptcy, dissolution or similar
law,
for a period of one year and one day (or, if longer, the applicable preference
period) following indefeasible payment in full of the Certificates, provided
that nothing herein shall preclude, or be deemed to estop Party A from
taking
any action in any case or proceeding voluntarily filed or commenced by
or on
behalf of Party B or in any involuntary case or proceeding after it has
been
commenced.
|
(h)
|
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.
|
(i)
|
Section
1(c)
|
For
purposes of Section 1(c) of the Agreement, this Transaction shall be the
sole
Transaction under the Agreement.
(j) Rating
Agency Downgrade
If
a
Ratings Event (as defined below) occurs with respect to Party A (or any
applicable credit support provider), then Party A shall, within (30) days
of
such Ratings Event subject to the Rating Agency Condition (as hereinafter
defined) and at its own expense (unless, within 30 days of such Ratings
Event,
each of S&P, Fitch and Moody’s has reconfirmed the rating of the
Certificates which was in effect immediately prior to such Ratings Event),
(i) assign this Transaction hereunder to a third party that meets or
exceeds, or as to which any applicable credit support provider of such
third
party meets or exceeds, the Approved Ratings Thresholds (as defined below)
on
terms substantially similar to this Confirmation, (ii) obtain a guaranty
of
Party A’s obligations under this Transaction from a third party that meets or
exceeds the Approved Ratings Threshold, in form and substance, (iii) post
collateral, or (iv) establish any other arrangement satisfactory to each
Rating
Agency, which will be sufficient to restore the immediately prior ratings
of the
Certificates. For purposes of this Transaction, a “Ratings Event” shall occur
with respect to Party A (or any applicable credit support provider), if
its
short-term unsecured and unsubordinated debt ceases to be rated at least
“A-1”
by S&P or its short-term unsecured and unsubordinated debt ceases to be
rated at least “P-1” by Moody’s (including in connection with a merger,
consolidation or other similar transaction by Party A or any applicable
credit
support provider) such ratings being referred to herein as the “Approved Ratings
Thresholds.” If a Further Ratings Event (as defined below) occurs with respect
to Party A (or any applicable credit support provider), then Party A shall,
within (10) days of such Downgrade Event subject to the Rating Agency Condition
(as hereinafter defined) and at its own expense (unless, within 10 days
of such
Ratings Event, S&P has reconfirmed the rating of the Certificates which was
in effect immediately prior to such Further Ratings Event), (i) assign
this
Transaction hereunder to a third party that meets or exceeds, or as to
which any
applicable credit support provider of such third party meets or exceeds,
the
Approved Ratings Thresholds on terms substantially similar to this Confirmation
or (ii) obtain a guaranty of Party A’s obligations under this Transaction from a
third party that meets or exceeds the Approved Ratings Threshold. For purposes
of this Transaction, a “Further Ratings Event” shall occur with respect to Party
A (or any applicable credit support provider), if its long-term unsecured
and
unsubordinated debt ceases to be rated at least “BBB-” by S&P (including in
connection with a merger, consolidation or other similar transaction by
Party A
or any applicable credit support provider). "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 Rating Agency
then
providing a rating of the Certificates and receive from each Rating Agency
a
prior written confirmation that the proposed action or inaction would not
cause
a downgrade or withdrawal of the then-current rating of the
Certificates.
|
(k)
|
Additional
Termination Events
|
Additional
Termination Events will apply as specified below:
The
occurrence of the following shall constitute an Additional Termination
Event:
If
a
Rating Agency Downgrade has occurred and Party A has not complied with
paragraph
(j) above, then an Additional Termination Event shall have occurred with
respect
to Party A and Party A shall be the sole Affected Party with respect to
such an
Additional Termination Event.
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 Party B shall be the sole Affected Party with respect thereto;
provided, however, that notwithstanding Section 6(b)(iv) of the Agreement,
both
Party A and Party B shall have the right to designate an Early Termination
Date
in respect of this Additional Termination Event; provided, further, that
the
Early Termination Date shall not be prior to the Optional Termination
Date.
If,
upon
the occurrence of a Regulation AB Event (as defined in Part 5(o) below)
Party A has not, within 30 days after such Regulation AB Event complied
with any of the provisions set forth in Part 5(o)(iii) below (provided
that if
the significance percentage reaches 10% after a Regulation AB Event has
occurred, Party A must comply with the provisions set forth in Part 5(o)(iii)
below within 10 days of Party A being informed of the significance percentage
reaching 10%), then an Additional Termination Event shall have occurred
with
respect to Party A and Party A shall be the sole Affected Party with respect
to
such Additional Termination Event.
|
(l)
|
Amendment
to ISDA Form
|
The
“Failure to Pay or Deliver” provision in Section 5(a)(i) of the Agreement is
hereby amended by deleting the word “third” in the third line thereof and
inserting the word “first” in place thereof.
|
(m)
|
Severability
|
If
any
term, provision, covenant, or condition of the Agreement, or the application
thereof to any other party or circumstance, shall be held 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 the Agreement has been executed with the invalid or unenforceable
provision portion eliminated, so long as the Agreement as so modified continues
to express, without material change, the original intentions of the parties
as
to the subject matter of the Agreement and the deletion of such portion
of the
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 conditions
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.
|
(n)
|
Priority
of Payments
|
Party
A
hereby agrees that, notwithstanding any provision of this agreement to
the
contrary, Party B’s obligations to pay any amounts owing under this Agreement
shall be subject to Section 5.01 and Section 5.07 of the Pooling and Servicing
Agreement and Party A’s right to receive payment of such amounts shall be
subject to Section 5.01 and Section 5.07 of the Pooling and Servicing Agreement.
This provision will survive the termination of this Agreement.
|
(o)
|
Compliance
with Regulation AB
|
|
(i)
|
Party
A agrees and acknowledges that while reporting requirements with
respect
to this Transaction are operative by force of law, DB Structured
Products,
Inc. (“DBSP”) and ACE Securities Corp. (“ACE”) are required under
Regulation AB under the Securities Act of 1933, as amended, and
the
Securities Exchange Act of 1934, as amended (“Regulation AB”), to disclose
certain information set forth in Regulation AB regarding Party
A or its
group of affiliated entities, if applicable, depending on the
aggregate
“significance percentage” of this Agreement and any other derivative
contracts between Party A or its group of affiliated entities,
if
applicable, and Party B, as calculated from time to time in accordance
with Item 1115 of Regulation AB.
|
|
(ii)
|
If,
solely while the relevant reporting requirements apply by force
of law to
this Transaction, DBSP or ACE determines, reasonably and in good
faith,
that the significance percentage of this Agreement has increased
to nine
(9) percent, then DBSP or ACE, as the case may be, may notify
Party A on a
Business Day after the date hereof of such increase in the significance
percentage (such notification, a “Regulation AB Event”). DBSP and/or ACE,
as applicable hereby agree with Party A to provide Party A with
the
calculations and any other information reasonably requested by
Party A
with respect to the determination that led to a Regulation AB
Event.
|
|
(iii)
|
Upon
the occurrence of a Regulation AB Event, Party A, at its own
expense,
shall secure another entity to replace Party A as party to this
Agreement
on terms substantially similar to this Agreement and subject
to prior
notification to the Rating Agencies, which entity (or a guarantor
therefor) and satisfies the Rating Agency Condition and which
entity is
able to provide the information set forth in Item 1115(b) of
Regulation AB
(the “Regulation AB Information”). If permitted by Regulation AB, any
required Regulation AB Information may be provided by incorporation
by
reference from reports filed pursuant to the Exchange
Act.
|
SCHEDULE
1
MORTGAGE
LOAN SCHEDULE
[PROVIDED
UPON REQUEST]
SCHEDULE
2
PREPAYMENT
CHARGE SCHEDULE
[PROVIDED
UPON REQUEST]
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.
|
1.
|
||
| 2. | 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. | |
| 3. | 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
(see page 2)
|
(5)
|
|
|||
|
(6)
|
Property
Maintenance
|
(6)
|
|
|||
|
(7)
|
MI/Hazard
Insurance Premiums (see page 2)
|
(7)
|
||||
|
(8)
|
Utility
Expenses
|
(8)
|
|
|||
|
(9)
|
Appraisal/BPO
|
(9)
|
|
|||
|
(10)
|
Property
Inspections
|
(10)
|
|
|||
|
(11)
|
FC
Costs/Other Legal Expenses
|
(11)
|
||||
|
(12)
|
Other
(itemize)
|
(12)
|
|
|||
|
|
Cash
for Keys________________________
|
(12)
|
||||
|
|
HOA/Condo
Fees_____________________
|
(12)
|
||||
|
|
_______________________________
|
(12)
|
||||
|
|
||||||
|
|
Total
Expenses
|
$
|
|
(13)
|
||
|
|
Credits:
|
|||||
|
(14)
|
Escrow
Balance
|
$
|
(14)
|
|
||
|
(15)
|
HIP
Refund
|
(15)
|
||||
|
(16)
|
Rental
Receipts
|
(16)
|
|
|||
|
(17)
|
Hazard
Loss Proceeds
|
(17)
|
|
|||
|
(18)
|
Primary
Mortgage Insurance / Gov’t Insurance
|
|||||
|
|
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)
|
|
|||
|
|
_______________________________
|
(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 Key: 15=Bankruptcy, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇, , ▇▇▇▇▇▇, 63=Substitution,
65=Repurchase,70=REO
|
2
|
|
ACTION_CODE
|
The
standard FNMA numeric code used to indicate the default/delinquent
status
of a particular loan.
|
|||
|
INT_ADJ_AMT
|
The
amount of the interest adjustment as reported by the
Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SOLDIER_SAILOR_ADJ_AMT
|
The
Soldier and Sailor Adjustment amount, if applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
NON_ADV_LOAN_AMT
|
The
Non Recoverable Loan Amount, if applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
LOAN_LOSS_AMT
|
The
amount the Servicer is passing as a loss, if applicable.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SCHED_BEG_PRIN_BAL
|
The
scheduled outstanding principal amount due at the beginning of
the cycle
date to be passed through to investors.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SCHED_END_PRIN_BAL
|
The
scheduled principal balance due to investors at the end of a processing
cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SCHED_PRIN_AMT
|
The
scheduled principal amount as reported by the Servicer for the
current
cycle -- only applicable for Scheduled/Scheduled Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SCHED_NET_INT
|
The
scheduled gross interest amount less the service fee amount for
the
current cycle as reported by the Servicer -- only applicable for
Scheduled/Scheduled Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
ACTL_PRIN_AMT
|
The
actual principal amount collected by the Servicer for the current
reporting cycle -- only applicable for Actual/Actual
Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
ACTL_NET_INT
|
The
actual gross interest amount less the service fee amount for the
current
reporting cycle as reported by the Servicer -- only applicable
for
Actual/Actual Loans.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
PREPAY_PENALTY_
AMT
|
The
penalty amount received when a borrower prepays on his loan as
reported by
the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
PREPAY_PENALTY_
WAIVED
|
The
prepayment penalty amount for the loan waived by the
servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
|
|
|
|
|
|
MOD_DATE
|
The
Effective Payment Date of the Modification for the loan.
|
|
MM/DD/YYYY
|
10
|
|
MOD_TYPE
|
The
Modification Type.
|
|
Varchar
- value can be alpha or numeric
|
30
|
|
DELINQ_P&I_ADVANCE_AMT
|
The
current outstanding principal and interest advances made by
Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
SCHEDULE
6
DATA
REQUIREMENTS OF SERVICING ADVANCES INCURRED PRIOR TO CUT-OFF DATE
|
[LOAN
NUMBER]
|
[PRE-CUT-OFF
DATE ADVANCE AMOUNT]
|
[PROVIDED
UPON REQUEST]
SCHEDULE
7
MORTGAGE
LOANS RELATING TO OCWEN SERVICING FEE RATE FOR FIRST DISTRIBUTION
DATE
[PROVIDED
UPON REQUEST]