ACE SECURITIES CORP. Depositor SAXON MORTGAGE SERVICES, INC. Servicer WELLS FARGO BANK, NATIONAL ASSOCIATION Master Servicer and Securities Administrator HSBC BANK USA, NATIONAL ASSOCIATION Trustee POOLING AND SERVICING AGREEMENT Dated as of January...
ACE
SECURITIES CORP.
Depositor
SAXON
MORTGAGE SERVICES, INC.
Servicer
XXXXX
FARGO BANK, NATIONAL ASSOCIATION
Master
Servicer and Securities Administrator
HSBC
BANK USA, NATIONAL ASSOCIATION
Trustee
Dated
as of January 1, 2006
Asset
Backed Pass-Through Certificates
TABLE
OF CONTENTS
|
ARTICLE
I
|
||
|
DEFINITIONS
|
||
|
SECTION
1.01.
|
Defined
Terms.
|
8
|
|
SECTION
1.02.
|
Allocation
of
Certain Interest Shortfalls.
|
83
|
|
ARTICLE
II
|
||
|
CONVEYANCE
OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES
|
||
|
SECTION
2.01.
|
Conveyance
of
the Mortgage Loans.
|
85
|
|
SECTION
2.02.
|
Acceptance
of
REMIC I by Trustee.
|
86
|
|
SECTION
2.03.
|
Repurchase
or
Substitution of Mortgage Loans.
|
86
|
|
SECTION
2.04.
|
Representations
and Warranties of the Master Servicer.
|
89
|
|
SECTION
2.05.
|
Representations,
Warranties and Covenants of the Servicer.
|
91
|
|
SECTION
2.06.
|
Issuance
of
the REMIC I Regular Interests and the Class R-I Interest.
|
93
|
|
SECTION
2.07.
|
Conveyance
of
the REMIC I Regular Interests; Acceptance of REMIC II and REMIC
III by the
Trustee.
|
93
|
|
SECTION
2.08.
|
Issuance
of
Residual Certificates.
|
94
|
|
SECTION
2.09.
|
Establishment
of the Trust.
|
94
|
|
SECTION
2.10.
|
Purpose
and
Powers of the Trust.
|
94
|
|
ARTICLE
III
|
||
|
|
||
|
ADMINISTRATION
AND SERVICING OF THE MORTGAGE LOANS; ACCOUNTS
|
||
|
|
||
|
SECTION
3.01.
|
The
Servicer
to Act as Servicer.
|
96
|
|
SECTION
3.02.
|
Sub-Servicing
Agreements Between the Servicer and Sub-Servicers.
|
98
|
|
SECTION
3.03.
|
Successor
Sub-Servicers.
|
100
|
|
SECTION
3.04.
|
No
Contractual Relationship Between Sub-Servicer, Subcontractor,
Trustee or
the Certificateholders.
|
100
|
|
SECTION
3.05.
|
Assumption
or
Termination of Sub-Servicing Agreement by Successor
Servicer.
|
100
|
|
SECTION
3.06.
|
Collection
of
Certain Mortgage Loan Payments.
|
101
|
|
SECTION
3.07.
|
Collection
of
Taxes, Assessments and Similar Items; Servicing Accounts.
|
101
|
|
SECTION
3.08.
|
Collection
Account and Distribution Account.
|
102
|
|
SECTION
3.09.
|
Withdrawals
from the Collection Account and Distribution Account.
|
105
|
|
SECTION
3.10.
|
Investment
of
Funds in the Investment Accounts.
|
107
|
|
SECTION
3.11.
|
Maintenance
of Hazard Insurance, Errors and Omissions and Fidelity Coverage
and
Primary Mortgage Insurance.
|
108
|
|
SECTION
3.12.
|
Enforcement
of Due-on-Sale Clauses; Assumption Agreements
|
110
|
|
SECTION
3.13.
|
Realization
Upon Defaulted Mortgage Loans.
|
111
|
|
SECTION
3.14.
|
Trustee
to
Cooperate; Release of Mortgage Files.
|
113
|
|
SECTION
3.15.
|
Servicing
Compensation.
|
114
|
|
SECTION
3.16.
|
Collection
Account Statements.
|
115
|
|
SECTION
3.17.
|
Annual
Statement as to Compliance.
|
115
|
|
SECTION
3.18.
|
Assessments
of Compliance and Attestation Reports.
|
116
|
|
SECTION
3.19.
|
[Reserved].
|
117
|
|
SECTION
3.20.
|
Annual
Certification.
|
117
|
|
SECTION
3.21.
|
Access
to
Certain Documentation.
|
118
|
|
SECTION
3.22.
|
Title,
Management and Disposition of REO Property.
|
118
|
|
SECTION
3.23.
|
Obligations
of the Servicer in Respect of Prepayment Interest Shortfalls;
Relief Act
Interest Shortfalls.
|
122
|
|
SECTION
3.24.
|
Obligations
of the Servicer in Respect of Mortgage Rates and Monthly
Payments.
|
122
|
|
SECTION
3.25.
|
Reserve
Fund.
|
122
|
|
SECTION
3.26.
|
Advance
Facility.
|
124
|
|
SECTION
3.27.
|
Indemnification.
|
125
|
|
|
||
|
ARTICLE
IV
|
||
|
|
||
|
ADMINISTRATION
AND MASTER SERVICING OF THE MORTGAGE LOANS BY THE MASTER
SERVICER
|
||
|
|
||
|
SECTION
4.01.
|
Master
Servicer.
|
127
|
|
SECTION
4.02.
|
REMIC-Related
Covenants.
|
128
|
|
SECTION
4.03.
|
Monitoring
of
Servicer.
|
128
|
|
SECTION
4.04.
|
Fidelity
Bond.
|
129
|
|
SECTION
4.05.
|
Power
to Act;
Procedures.
|
129
|
|
SECTION
4.06.
|
Due-on-Sale
Clauses; Assumption Agreements.
|
130
|
|
SECTION
4.07.
|
Documents,
Records and Funds in Possession of Master Servicer To Be Held
for
Trustee.
|
130
|
|
SECTION
4.08.
|
Standard
Hazard Insurance and Flood Insurance Policies.
|
131
|
|
SECTION
4.09.
|
Presentment
of Claims and Collection of Proceeds.
|
131
|
|
SECTION
4.10.
|
Maintenance
of Primary Mortgage Insurance Policies.
|
131
|
|
SECTION
4.11.
|
Trustee
to
Retain Possession of Certain Insurance Policies and
Documents.
|
132
|
|
SECTION
4.12.
|
Realization
Upon Defaulted Mortgage Loans.
|
132
|
|
SECTION
4.13.
|
Compensation
for the Master Servicer.
|
132
|
|
SECTION
4.14.
|
REO
Property.
|
133
|
|
SECTION
4.15.
|
Master
Servicer Annual Statement of Compliance.
|
133
|
|
SECTION
4.16.
|
Master
Servicer Assessments of Compliance.
|
134
|
|
SECTION
4.17.
|
Master
Servicer Attestation Reports.
|
135
|
|
SECTION
4.18.
|
Annual
Certification.
|
136
|
|
SECTION
4.19.
|
Obligation
of
the Master Servicer in Respect of Prepayment Interest
Shortfalls.
|
137
|
|
SECTION
4.20.
|
Prepayment
Penalty Verification.
|
137
|
|
|
||
|
ARTICLE
V
|
||
|
|
||
|
|
PAYMENTS
TO CERTIFICATEHOLDERS
|
|
|
|
||
|
SECTION
5.01.
|
Distributions.
|
139
|
|
SECTION
5.02.
|
Statements
to
Certificateholders.
|
152
|
|
SECTION
5.03.
|
Servicer
Reports; P&I Advances.
|
156
|
|
SECTION
5.04.
|
Allocation
of
Realized Losses.
|
157
|
|
SECTION
5.05.
|
Compliance
with Withholding Requirements.
|
160
|
|
SECTION
5.06.
|
Reports
Filed
with Securities and Exchange Commission.
|
161
|
|
SECTION
5.07.
|
Supplemental
Interest Trust.
|
165
|
|
SECTION
5.08.
|
Tax
Treatment
of Swap Payments and Swap Termination Payments.
|
167
|
|
ARTICLE
VI
|
|
|
|
|
||
|
THE
CERTIFICATES
|
|
|
|
SECTION
6.01.
|
The
Certificates.
|
169
|
|
SECTION
6.02.
|
Registration
of Transfer and Exchange of Certificates.
|
171
|
|
SECTION
6.03.
|
Mutilated,
Destroyed, Lost or Stolen Certificates.
|
176
|
|
SECTION
6.04.
|
Persons
Deemed Owners.
|
176
|
|
SECTION
6.05.
|
Certain
Available Information.
|
176
|
|
ARTICLE
VII
|
||
|
|
||
|
THE
DEPOSITOR, THE SERVICER AND THE MASTER SERVICER
|
||
|
SECTION
7.01.
|
Liability
of
the Depositor, the Servicer and the Master Servicer.
|
178
|
|
SECTION
7.02.
|
Merger
or
Consolidation of the Depositor, the Servicer or the Master
Servicer.
|
178
|
|
SECTION
7.03.
|
Limitation
on
Liability of the Depositor, the Servicer, the Master Servicer
and
Others.
|
178
|
|
SECTION
7.04.
|
Limitation
on
Resignation of the Servicer.
|
179
|
|
SECTION
7.05.
|
Limitation
on
Resignation of the Master Servicer.
|
180
|
|
SECTION
7.06.
|
Assignment
of
Master Servicing.
|
181
|
|
SECTION
7.07.
|
Rights
of the
Depositor in Respect of the Servicer and the Master
Servicer.
|
181
|
|
SECTION
7.08.
|
Duties
of the
Credit Risk Manager.
|
182
|
|
SECTION
7.09.
|
Limitation
Upon Liability of the Credit Risk Manager.
|
183
|
|
SECTION
7.10.
|
Removal
of
the Credit Risk Manager.
|
183
|
|
ARTICLE
VIII
|
|
|
|
|
||
|
DEFAULT
|
|
|
|
SECTION
8.01.
|
Servicer
Events of Default.
|
184
|
|
SECTION
8.02.
|
Master
Servicer to Act; Appointment of Successor.
|
188
|
|
SECTION
8.03.
|
Notification
to Certificateholders.
|
189
|
|
SECTION
8.04.
|
Waiver
of
Events of Default.
|
190
|
|
ARTICLE
IX
|
||
|
|
||
|
CONCERNING
THE TRUSTEE AND THE SECURITIES ADMINISTRATOR
|
||
|
SECTION
9.01.
|
Duties
of
Trustee and Securities Administrator.
|
191
|
|
SECTION
9.02.
|
Certain
Matters Affecting Trustee and Securities Administrator.
|
192
|
|
SECTION
9.03.
|
Trustee
and
Securities Administrator not Liable for Certificates or Mortgage
Loans.
|
194
|
|
SECTION
9.04.
|
Trustee
and
Securities Administrator May Own Certificates.
|
195
|
|
SECTION
9.05.
|
Fees
and
Expenses of Trustee and Securities Administrator.
|
195
|
|
SECTION
9.06.
|
Eligibility
Requirements for Trustee and Securities Administrator.
|
196
|
|
SECTION
9.07.
|
Resignation
and Removal of Trustee and Securities Administrator.
|
196
|
|
SECTION
9.08.
|
Successor
Trustee or Securities Administrator.
|
197
|
|
SECTION
9.09.
|
Merger
or
Consolidation of Trustee or Securities Administrator.
|
198
|
|
SECTION
9.10.
|
Appointment
of Co-Trustee or Separate Trustee.
|
198
|
|
SECTION
9.11.
|
Appointment
of Office or Agency.
|
199
|
|
SECTION
9.12.
|
Representations
and Warranties.
|
199
|
|
ARTICLE
X
|
||
|
|
||
|
TERMINATION
|
||
|
XXXXXXX
00.00.
|
Xxxxxxxxxxx
Xxxx Xxxxxxxxxx or Liquidation of All Mortgage Loans.
|
201
|
|
SECTION
10.02.
|
Additional
Termination Requirements.
|
203
|
|
ARTICLE
XI
|
||
|
|
||
|
REMIC
PROVISIONS
|
||
|
SECTION
11.01.
|
REMIC
Administration.
|
205
|
|
SECTION
11.02.
|
Prohibited
Transactions and Activities.
|
207
|
|
SECTION
11.03.
|
Indemnification.
|
208
|
|
ARTICLE
XII
|
||
|
|
||
|
MISCELLANEOUS
PROVISIONS
|
||
|
SECTION
12.01.
|
Amendment.
|
209
|
|
SECTION
12.02.
|
Recordation
of Agreement; Counterparts.
|
210
|
|
SECTION
12.03.
|
Limitation
on Rights of Certificateholders.
|
210
|
|
SECTION
12.04.
|
Governing
Law.
|
211
|
|
SECTION
12.05.
|
Notices.
|
211
|
|
SECTION
12.06.
|
Severability
of Provisions.
|
212
|
|
SECTION
12.07.
|
Notice
to Rating Agencies.
|
212
|
|
SECTION
12.08.
|
Article
and Section References.
|
213
|
|
SECTION
12.09.
|
Grant
of Security Interest.
|
213
|
|
SECTION
12.10.
|
Survival
of Indemnification.
|
214
|
|
SECTION
12.11.
|
Intention
of the Parties and Interpretation.
|
214
|
Exhibits
|
Exhibit
A-1
|
Form
of Class A Certificate
|
|
Exhibit
A-2
|
Form
of Class M Certificate
|
|
Exhibit
A-3
|
Form
of Class CE 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
|
Back-Up
Certification
|
|
Exhibit
D
|
Form
of Power of Attorney
|
|
Exhibit
E
|
Servicing
Criteria
|
|
Exhibit
F
|
Mortgage
Loan Purchase Agreement between the Sponsor and the
Depositor
|
|
Exhibit
G
|
Form
10-D, Form 8-K and Form 10-K Reporting Responsibility
|
|
Exhibit
H
|
Additional
Disclosure Notification
|
|
Exhibit
I
|
Swap
Agreement
|
|
Schedule
1
|
Mortgage
Loan Schedule
|
|
Schedule
2
|
Prepayment
Charge Schedule
|
|
Schedule
3
|
Reserved
|
|
Schedule
4
|
Standard
File Layout - Delinquency Reporting
|
|
Schedule
5
|
Standard
File Layout - Scheduled/Scheduled
|
|
Schedule
6
|
Data
Requirements of Servicing Advances Incurred Prior to Cut-off
Date
|
This
Pooling and Servicing Agreement, is dated and effective as of January 1,
2006,
among ACE SECURITIES CORP., as Depositor, SAXON MORTGAGE SERVICES, INC.,
as
Servicer, XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Master Servicer and
Securities Administrator and HSBC BANK USA, NATIONAL ASSOCIATION, as
Trustee.
PRELIMINARY
STATEMENT:
The
Depositor intends to sell pass-through certificates to be issued hereunder
in
multiple classes, which in the aggregate will evidence the entire beneficial
ownership interest of the Trust Fund created hereunder. The Trust Fund
will
consist of a segregated pool of assets comprised of the Mortgage Loans
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)
|
|||||
|
I-1-A
|
Variable(2)
|
$ |
2,408,285.94
|
December
25, 2035
|
||||
|
I-1-B
|
Variable(2)
|
$ |
2,408,285.94
|
|
December
25, 2035
|
|||
|
I-2-A
|
Variable(2)
|
$ |
2,748,805.45
|
December
25, 2035
|
||||
|
I-2-B
|
Variable(2)
|
$ |
2,748,805.45
|
|
December
25, 2035
|
|||
|
I-3-A
|
Variable(2)
|
$ |
3,079,471.11
|
December
25, 2035
|
||||
|
I-3-B
|
Variable(2)
|
$ |
3,079,471.11
|
December
25, 2035
|
||||
|
I-4-A
|
Variable(2)
|
$ |
3,397,222.47
|
December
25, 2035
|
||||
|
I-4-B
|
Variable(2)
|
$ |
3,397,222.47
|
December
25, 2035
|
||||
|
I-5-A
|
Variable(2)
|
$ |
3,698,566.95
|
December
25, 2035
|
||||
|
I-5-B
|
Variable(2)
|
$ |
3,698,566.95
|
December
25, 2035
|
||||
|
I-6-A
|
Variable(2)
|
$ |
3,972,657.87
|
December
25, 2035
|
||||
|
I-6-B
|
Variable(2)
|
$ |
3,972,657.87
|
December
25, 2035
|
||||
|
I-7-A
|
Variable(2)
|
$ |
4,213,055.37
|
December
25, 2035
|
||||
|
I-7-B
|
Variable(2)
|
$ |
4,213,055.37
|
December
25, 2035
|
||||
|
I-8-A
|
Variable(2)
|
$ |
4,351,347.14
|
December
25, 2035
|
||||
|
I-8-B
|
Variable(2)
|
$ |
4,351,347.14
|
December
25, 2035
|
||||
|
I-9-A
|
Variable(2)
|
$ |
4,172,624.97
|
December
25, 2035
|
||||
|
I-9-B
|
Variable(2)
|
$ |
4,172,624.97
|
December
25, 2035
|
||||
|
I-10-A
|
Variable(2)
|
$ |
3,997,204.67
|
December
25, 2035
|
||||
|
I-10-B
|
Variable(2)
|
$ |
3,997,204.67
|
December
25, 2035
|
||||
|
I-11-A
|
Variable(2)
|
$ |
3,829,131.82
|
December
25, 2035
|
||||
|
I-11-B
|
Variable(2)
|
$ |
3,829,131.82
|
December
25, 2035
|
||||
|
I-12-A
|
Variable(2)
|
$ |
3,668,134.38
|
December
25, 2035
|
||||
|
I-12-B
|
Variable(2)
|
$ |
3,668,134.38
|
December
25, 2035
|
||||
|
I-13-A
|
Variable(2)
|
$ |
3,513,914.16
|
December
25, 2035
|
||||
|
I-13-B
|
Variable(2)
|
$ |
3,513,914.16
|
December
25, 2035
|
||||
|
I-14-A
|
Variable(2)
|
$ |
3,366,185.58
|
December
25, 2035
|
||||
|
I-14-B
|
Variable(2)
|
$ |
3,366,185.58
|
December
25, 2035
|
||||
|
I-15-A
|
Variable(2)
|
$ |
3,226,699.11
|
December
25, 2035
|
||||
|
I-15-B
|
Variable(2)
|
$ |
3,226,699.11
|
December
25, 2035
|
||||
|
I-16-A
|
Variable(2)
|
$ |
3,105,512.31
|
December
25, 2035
|
||||
|
I-16-B
|
Variable(2)
|
$ |
3,105,512.31
|
December
25, 2035
|
||||
|
I-17-A
|
Variable(2)
|
$ |
3,141,227.77
|
December
25, 2035
|
||||
|
I-17-B
|
Variable(2)
|
$ |
3,141,227.77
|
December
25, 2035
|
||||
|
I-18-A
|
Variable(2)
|
$ |
3,095,292.56
|
December
25, 2035
|
||||
|
I-18-B
|
Variable(2)
|
$ |
3,095,292.56
|
December
25, 2035
|
||||
|
I-19-A
|
Variable(2)
|
$ |
4,286,593.69
|
December
25, 2035
|
||||
|
I-19-B
|
Variable(2)
|
$ |
4,286,593.69
|
December
25, 2035
|
||||
|
I-20-A
|
Variable(2)
|
$ |
9,642,825.93
|
December
25, 2035
|
||||
|
I-20-B
|
Variable(2)
|
$ |
9,642,825.93
|
December
25, 2035
|
||||
|
I-21-A
|
Variable(2)
|
$ |
7,984,153.79
|
December
25, 2035
|
||||
|
I-21-B
|
Variable(2)
|
$ |
7,984,153.79
|
December
25, 2035
|
||||
|
I-22-A
|
Variable(2)
|
$ |
6,566,320.81
|
December
25, 2035
|
||||
|
I-22-B
|
Variable(2)
|
$ |
6,566,320.81
|
December
25, 2035
|
||||
|
I-23-A
|
Variable(2)
|
$ |
4,845,210.15
|
December
25, 2035
|
||||
|
I-23-B
|
Variable(2)
|
$ |
4,845,210.15
|
December
25, 2035
|
||||
|
I-24-A
|
Variable(2)
|
$ |
1,484,627.12
|
December
25, 2035
|
||||
|
I-24-B
|
Variable(2)
|
$ |
1,484,627.12
|
December
25, 2035
|
||||
|
I-25-A
|
Variable(2)
|
$ |
1,375,438.86
|
December
25, 2035
|
||||
|
I-25-B
|
Variable(2)
|
$ |
1,375,438.86
|
December
25, 2035
|
||||
|
I-26-A
|
Variable(2)
|
$ |
1,310,533.97
|
December
25, 2035
|
||||
|
I-26-B
|
Variable(2)
|
$ |
1,310,533.97
|
December
25, 2035
|
||||
|
I-27-A
|
Variable(2)
|
$ |
1,248,710.54
|
December
25, 2035
|
||||
|
I-27-B
|
Variable(2)
|
$ |
1,248,710.54
|
December
25, 2035
|
||||
|
I-28-A
|
Variable(2)
|
$ |
1,189,832.38
|
December
25, 2035
|
||||
|
I-28-B
|
Variable(2)
|
$ |
1,189,832.38
|
December
25, 2035
|
||||
|
I-29-A
|
Variable(2)
|
$ |
1,133,748.99
|
December
25, 2035
|
||||
|
I-29-B
|
Variable(2)
|
$ |
1,133,748.99
|
December
25, 2035
|
||||
|
I-30-A
|
Variable(2)
|
$ |
1,080,324.53
|
December
25, 2035
|
||||
|
I-30-B
|
Variable(2)
|
$ |
1,080,324.53
|
December
25, 2035
|
||||
|
I-31-A
|
Variable(2)
|
$ |
1,029,445.09
|
December
25, 2035
|
||||
|
I-31-B
|
Variable(2)
|
$ |
1,029,445.09
|
December
25, 2035
|
||||
|
I-32-A
|
Variable(2)
|
$ |
980,911.58
|
December
25, 2035
|
||||
|
I-32-B
|
Variable(2)
|
$ |
980,911.58
|
December
25, 2035
|
||||
|
I-33-A
|
Variable(2)
|
$ |
934,596.12
|
December
25, 2035
|
||||
|
I-33-B
|
Variable(2)
|
$ |
934,596.12
|
December
25, 2035
|
||||
|
I-34-A
|
Variable(2)
|
$ |
890,644.30
|
December
25, 2035
|
||||
|
I-34-B
|
Variable(2)
|
$ |
890,644.30
|
December
25, 2035
|
||||
|
I-35-A
|
Variable(2)
|
$ |
848,779.21
|
December
25, 2035
|
||||
|
I-35-B
|
Variable(2)
|
$ |
848,779.21
|
December
25, 2035
|
||||
|
I-36-A
|
Variable(2)
|
$ |
808,898.10
|
December
25, 2035
|
||||
|
I-36-B
|
Variable(2)
|
$ |
808,898.10
|
December
25, 2035
|
||||
|
I-37-A
|
Variable(2)
|
$ |
770,908.28
|
December
25, 2035
|
||||
|
I-37-B
|
Variable(2)
|
$ |
770,908.28
|
December
25, 2035
|
||||
|
I-38-A
|
Variable(2)
|
$ |
734,718.21
|
December
25, 2035
|
||||
|
I-38-B
|
Variable(2)
|
$ |
734,718.21
|
December
25, 2035
|
||||
|
I-39-A
|
Variable(2)
|
$ |
700,237.06
|
December
25, 2035
|
||||
|
I-39-B
|
Variable(2)
|
$ |
700,237.06
|
December
25, 2035
|
||||
|
I-40-A
|
Variable(2)
|
$ |
667,393.64
|
December
25, 2035
|
||||
|
I-40-B
|
Variable(2)
|
$ |
667,393.64
|
December
25, 2035
|
||||
|
I-41-A
|
Variable(2)
|
$ |
636,104.59
|
December
25, 2035
|
||||
|
I-41-B
|
Variable(2)
|
$ |
636,104.59
|
|
December
25, 2035
|
|||
|
I-42-A
|
Variable(2)
|
$ |
13,091,156.76
|
|
December
25, 2035
|
|||
|
I-42-B
|
Variable(2)
|
$ |
13,091,156.76
|
December
25, 2035
|
||||
|
II-1-A
|
Variable(2)
|
$ |
2,259,324.40
|
December
25, 2035
|
||||
|
II-1-B
|
Variable(2)
|
$ |
2,259,324.40
|
December
25, 2035
|
||||
|
II-2-A
|
Variable(2)
|
$ |
2,578,781.50
|
December
25, 2035
|
||||
|
II-2-B
|
Variable(2)
|
$ |
2,578,781.50
|
December
25, 2035
|
||||
|
II-3-A
|
Variable(2)
|
$ |
2,888,994.24
|
December
25, 2035
|
||||
|
II-3-B
|
Variable(2)
|
$ |
2,888,994.24
|
December
25, 2035
|
||||
|
II-4-A
|
Variable(2)
|
$ |
3,187,091.49
|
December
25, 2035
|
||||
|
II-4-B
|
Variable(2)
|
$ |
3,187,091.49
|
December
25, 2035
|
||||
|
II-5-A
|
Variable(2)
|
$ |
3,469,796.68
|
December
25, 2035
|
||||
|
II-5-B
|
Variable(2)
|
$ |
3,469,796.68
|
December
25, 2035
|
||||
|
II-6-A
|
Variable(2)
|
$ |
3,726,934.05
|
December
25, 2035
|
||||
|
II-6-B
|
Variable(2)
|
$ |
3,726,934.05
|
December
25, 2035
|
||||
|
II-7-A
|
Variable(2)
|
$ |
3,952,462.05
|
December
25, 2035
|
||||
|
II-7-B
|
Variable(2)
|
$ |
3,952,462.05
|
December
25, 2035
|
||||
|
II-8-A
|
Variable(2)
|
$ |
4,082,199.96
|
December
25, 2035
|
||||
|
II-8-B
|
Variable(2)
|
$ |
4,082,199.96
|
December
25, 2035
|
||||
|
II-9-A
|
Variable(2)
|
$ |
3,914,532.42
|
December
25, 2035
|
||||
|
II-9-B
|
Variable(2)
|
$ |
3,914,532.42
|
December
25, 2035
|
||||
|
II-10-A
|
Variable(2)
|
$ |
3,749,962.53
|
December
25, 2035
|
||||
|
II-10-B
|
Variable(2)
|
$ |
3,749,962.53
|
December
25, 2035
|
||||
|
II-11-A
|
Variable(2)
|
$ |
3,592,285.62
|
December
25, 2035
|
||||
|
II-11-B
|
Variable(2)
|
$ |
3,592,285.62
|
December
25, 2035
|
||||
|
II-12-A
|
Variable(2)
|
$ |
3,441,246.48
|
December
25, 2035
|
||||
|
II-12-B
|
Variable(2)
|
$ |
3,441,246.48
|
December
25, 2035
|
||||
|
II-13-A
|
Variable(2)
|
$ |
3,296,565.36
|
December
25, 2035
|
||||
|
II-13-B
|
Variable(2)
|
$ |
3,296,565.36
|
December
25, 2035
|
||||
|
II-14-A
|
Variable(2)
|
$ |
3,157,974.35
|
December
25, 2035
|
||||
|
II-14-B
|
Variable(2)
|
$ |
3,157,974.35
|
December
25, 2035
|
||||
|
II-15-A
|
Variable(2)
|
$ |
3,027,115.64
|
December
25, 2035
|
||||
|
II-15-B
|
Variable(2)
|
$ |
3,027,115.64
|
December
25, 2035
|
||||
|
II-16-A
|
Variable(2)
|
$ |
2,913,424.69
|
December
25, 2035
|
||||
|
II-16-B
|
Variable(2)
|
$ |
2,913,424.69
|
December
25, 2035
|
||||
|
II-17-A
|
Variable(2)
|
$ |
2,946,931.03
|
December
25, 2035
|
||||
|
II-17-B
|
Variable(2)
|
$ |
2,946,931.03
|
December
25, 2035
|
||||
|
II-18-A
|
Variable(2)
|
$ |
2,903,837.07
|
December
25, 2035
|
||||
|
II-18-B
|
Variable(2)
|
$ |
2,903,837.07
|
December
25, 2035
|
||||
|
II-19-A
|
Variable(2)
|
$ |
4,021,451.75
|
December
25, 2035
|
||||
|
II-19-B
|
Variable(2)
|
$ |
4,021,451.75
|
December
25, 2035
|
||||
|
II-20-A
|
Variable(2)
|
$ |
9,046,380.89
|
December
25, 2035
|
||||
|
II-20-B
|
Variable(2)
|
$ |
9,046,380.89
|
December
25, 2035
|
||||
|
II-21-A
|
Variable(2)
|
$ |
7,490,303.87
|
December
25, 2035
|
||||
|
II-21-B
|
Variable(2)
|
$ |
7,490,303.87
|
December
25, 2035
|
||||
|
II-22-A
|
Variable(2)
|
$ |
6,160,169.19
|
December
25, 2035
|
||||
|
II-22-B
|
Variable(2)
|
$ |
6,160,169.19
|
December
25, 2035
|
||||
|
II-23-A
|
Variable(2)
|
$ |
4,545,515.69
|
December
25, 2035
|
||||
|
II-23-B
|
Variable(2)
|
$ |
4,545,515.69
|
December
25, 2035
|
||||
|
II-24-A
|
Variable(2)
|
$ |
1,392,797.36
|
December
25, 2035
|
||||
|
II-24-B
|
Variable(2)
|
$ |
1,392,797.36
|
December
25, 2035
|
||||
|
II-25-A
|
Variable(2)
|
$ |
1,290,362.79
|
December
25, 2035
|
||||
|
II-25-B
|
Variable(2)
|
$ |
1,290,362.79
|
December
25, 2035
|
||||
|
II-26-A
|
Variable(2)
|
$ |
1,229,472.52
|
December
25, 2035
|
||||
|
II-26-B
|
Variable(2)
|
$ |
1,229,472.52
|
December
25, 2035
|
||||
|
II-27-A
|
Variable(2)
|
$ |
1,171,473.09
|
December
25, 2035
|
||||
|
II-27-B
|
Variable(2)
|
$ |
1,171,473.09
|
December
25, 2035
|
||||
|
II-28-A
|
Variable(2)
|
$ |
1,116,236.77
|
December
25, 2035
|
||||
|
II-28-B
|
Variable(2)
|
$ |
1,116,236.77
|
December
25, 2035
|
||||
|
II-29-A
|
Variable(2)
|
$ |
1,063,622.35
|
December
25, 2035
|
||||
|
II-29-B
|
Variable(2)
|
$ |
1,063,622.35
|
December
25, 2035
|
||||
|
II-30-A
|
Variable(2)
|
$ |
1,013,502.40
|
December
25, 2035
|
||||
|
II-30-B
|
Variable(2)
|
$ |
1,013,502.40
|
December
25, 2035
|
||||
|
II-31-A
|
Variable(2)
|
$ |
965,770.04
|
December
25, 2035
|
||||
|
II-31-B
|
Variable(2)
|
$ |
965,770.04
|
December
25, 2035
|
||||
|
II-32-A
|
Variable(2)
|
$ |
920,238.51
|
December
25, 2035
|
||||
|
II-32-B
|
Variable(2)
|
$ |
920,238.51
|
December
25, 2035
|
||||
|
II-33-A
|
Variable(2)
|
$ |
876,787.83
|
December
25, 2035
|
||||
|
II-33-B
|
Variable(2)
|
$ |
876,787.83
|
December
25, 2035
|
||||
|
II-34-A
|
Variable(2)
|
$ |
835,554.60
|
December
25, 2035
|
||||
|
II-34-B
|
Variable(2)
|
$ |
835,554.60
|
December
25, 2035
|
||||
|
II-35-A
|
Variable(2)
|
$ |
796,279.02
|
December
25, 2035
|
||||
|
II-35-B
|
Variable(2)
|
$ |
796,279.02
|
December
25, 2035
|
||||
|
II-36-A
|
Variable(2)
|
$ |
758,864.71
|
December
25, 2035
|
||||
|
II-36-B
|
Variable(2)
|
$ |
758,864.71
|
December
25, 2035
|
||||
|
II-37-A
|
Variable(2)
|
$ |
723,224.70
|
December
25, 2035
|
||||
|
II-37-B
|
Variable(2)
|
$ |
723,224.70
|
December
25, 2035
|
||||
|
II-38-A
|
Variable(2)
|
$ |
689,273.13
|
December
25, 2035
|
||||
|
II-38-B
|
Variable(2)
|
$ |
689,273.13
|
December
25, 2035
|
||||
|
II-39-A
|
Variable(2)
|
$ |
656,924.77
|
|
December
25, 2035
|
|||
|
II-39-B
|
Variable(2)
|
$ |
656,924.77
|
December
25, 2035
|
||||
|
II-40-A
|
Variable(2)
|
$ |
626,112.84
|
December
25, 2035
|
||||
|
II-40-B
|
Variable(2)
|
$ |
626,112.84
|
December
25, 2035
|
||||
|
II-41-A
|
Variable(2)
|
$ |
596,759.13
|
December
25, 2035
|
||||
|
II-41-B
|
Variable(2)
|
$ |
596,759.13
|
December
25, 2035
|
||||
|
II-42-A
|
Variable(2)
|
$ |
12,281,419.50
|
December
25, 2035
|
||||
|
II-42-B
|
Variable(2)
|
$ |
12,281,419.50
|
December
25, 2035
|
||||
__________________
|
(1)
|
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the
Distribution Date immediately following the maturity date for
the Mortgage
Loan with the latest maturity date has been designated as the
“latest
possible maturity date” for each REMIC I Regular
Interest.
|
|
(2)
|
Calculated
in accordance with the definition of “REMIC I Remittance Rate”
herein.
|
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)
|
$ |
241,653,653.12
|
December
25, 2035
|
||||
|
A-1
|
Variable(2)
|
$ |
1,002,550.00
|
December
25, 2035
|
||||
|
A-2A
|
Variable(2)
|
$ |
518,490.00
|
December
25, 2035
|
||||
|
A-2B
|
Variable(2)
|
$ |
182,045.00
|
December
25, 2035
|
||||
|
A-2C
|
Variable(2)
|
$ |
115,675.00
|
December
25, 2035
|
||||
|
A-2D
|
Variable(2)
|
$ |
124,330.00
|
December
25, 2035
|
||||
|
M-1
|
Variable(2)
|
$ |
86,305.00
|
December
25, 2035
|
||||
|
M-2
|
Variable(2)
|
$ |
80,140.00
|
December
25, 2035
|
||||
|
M-3
|
Variable(2)
|
$ |
55,480.00
|
December
25, 2035
|
||||
|
M-4
|
Variable(2)
|
$ |
39,455.00
|
December
25, 2035
|
||||
|
M-5
|
Variable(2)
|
$ |
39,455.00
|
December
25, 2035
|
||||
|
M-6
|
Variable(2)
|
$ |
33,290.00
|
December
25, 2035
|
||||
|
M-7
|
Variable(2)
|
$ |
49,315.00
|
December
25, 2035
|
||||
|
M-8
|
Variable(2)
|
$ |
46,850.00
|
December
25, 2035
|
||||
|
M-9
|
Variable(2)
|
$ |
19,725.00
|
December
25, 2035
|
||||
|
M-10
|
Variable(2)
|
$ |
16,030.00
|
December
25, 2035
|
||||
|
M-11
|
Variable(2)
|
$ |
19,725.00
|
December
25, 2035
|
||||
|
ZZ
|
Variable(2)
|
$ |
2,502,847.21
|
December
25, 2035
|
||||
|
IO
|
Variable(2)
|
(3)
|
December
25, 2035
|
|||||
|
P
|
N/A(4)
|
$ |
100.00
|
December
25, 2035
|
||||
|
I-SUB
|
Variable(2)
|
$ |
5,394.49
|
December
25, 2035
|
||||
|
I-GRP
|
Variable(2)
|
$ |
25,445.49
|
December
25, 2035
|
||||
|
II-SUB
|
Variable(2)
|
$ |
5,060.79
|
December
25, 2035
|
||||
|
II-GRP
|
Variable(2)
|
$ |
23,871.59
|
December
25, 2035
|
||||
|
XX
|
Variable(2)
|
$ |
246,525,587.97
|
December
25, 2035
|
||||
___________________________
|
(1)
|
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the
Distribution Date immediately following the maturity date for
the Mortgage
Loan with the latest maturity date has been designated as the
“latest
possible maturity date” for each REMIC II Regular
Interest.
|
|
(2)
|
Calculated
in accordance with the definition of “REMIC II Remittance Rate”
herein.
|
|
(3)
|
REMIC
II Regular Interest IO will not have an Uncertificated Balance,
but will
accrue interest on its Uncertificated Notional
Amount.
|
|
(4)
|
REMIC
II Regular Interest P will not accrue interest but will be entitled
to
100% of the Prepayment Charges.
|
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-1
|
Variable(2)
|
$ |
200,510,000
|
December
25, 2035
|
||||
|
Class
A-2A
|
Variable(2)
|
$ |
$103,698,000
|
December
25, 2035
|
||||
|
Class
A-2B
|
Variable(2)
|
$ |
$36,409,000
|
December
25, 2035
|
||||
|
Class
A-2C
|
Variable(2)
|
$ |
$23,135,000
|
December
25, 2035
|
||||
|
Class
A-2D
|
Variable(2)
|
$ |
$24,866,000
|
December
25, 2035
|
||||
|
Class
M-1
|
Variable(2)
|
$ |
$17,261,000
|
December
25, 2035
|
||||
|
Class
M-2
|
Variable(2)
|
$ |
$16,028,000
|
December
25, 2035
|
||||
|
Class
M-3
|
Variable(2)
|
$ |
$11,096,000
|
December
25, 2035
|
||||
|
Class
M-4
|
Variable(2)
|
$ |
$7,891,000
|
December
25, 2035
|
||||
|
Class
M-5
|
Variable(2)
|
$ |
$7,891,000
|
December
25, 2035
|
||||
|
Class
M-6
|
Variable(2)
|
$ |
$6,658,000
|
December
25, 2035
|
||||
|
Class
M-7
|
Variable(2)
|
$ |
$9,863,000
|
December
25, 2035
|
||||
|
Class
M-8
|
Variable(2)
|
$ |
$9,370,000
|
December
25, 2035
|
||||
|
Class
M-9
|
Variable(2)
|
$ |
$3,945,000
|
December
25, 2035
|
||||
|
Class
M-10
|
Variable(2)
|
$ |
$3,206,000
|
December
25, 2035
|
||||
|
Class
M-11
|
Variable(2)
|
$ |
$3,945,000
|
December
25, 2035
|
||||
|
Class
P
|
N/A(3)
|
$ |
$100
|
December
25, 2035
|
||||
|
Class
CE
|
N/A(4)
|
$ |
$7,398,721
|
December
25, 2035
|
||||
|
Class
IO Interest
|
N/A(5)
|
N/A(5)
|
December
25, 2035
|
|||||
_________________
|
(1)
|
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the
Distribution Date immediately following the maturity date
for the Mortgage
Loan with the latest maturity date has been designated as
the “latest
possible maturity date” for each Class of Certificates.
|
|
(2)
|
Calculated
in accordance with the definition of “Pass-Through Rate”
herein.
|
|
(3)
|
The
Class P Certificates will not accrue interest.
|
|
(4)
|
The
Class CE Certificates will accrue interest at their variable
Pass-Through
Rate on the Notional Amount of the Class CE 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
Certificates will not accrue interest on their Certificate
Principal
Balance.
|
|
(5)
|
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.
|
As
of the Cut-off Date, the Group I Mortgage Loans had an aggregate Scheduled
Principal Balance equal to approximately $254,454,907 and the Group II
Mortgage
Loans had an aggregate Scheduled Principal Balance equal to approximately
$238,715,914.
In
consideration of the mutual agreements herein contained, the Depositor,
the
Servicer, the Master Servicer, the Securities Administrator and the Trustee
agree as follows:
ARTICLE
I
DEFINITIONS
SECTION
1.01. Defined
Terms.
Whenever
used in this Agreement, including, without limitation, in the Preliminary
Statement hereto, the following words and phrases, unless the context
otherwise
requires, shall have the meanings specified in this Article. Unless otherwise
specified, all calculations described herein shall be made on the basis
of a
360-day year consisting of twelve 30-day months.
“Accepted
Master Servicing Practices”:
With respect to any Mortgage Loan, as applicable, either (x) those customary
mortgage master servicing practices of prudent mortgage servicing institutions
that master service mortgage loans of the same type and quality as such
Mortgage
Loan in the jurisdiction where the related Mortgaged Property is located,
to the
extent applicable to the Master Servicer (except in its capacity as successor
to
the 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 Account and the Distribution Account as the context may
require.
“Accrued
Certificate Interest”:
With respect to any Class A Certificate, Mezzanine Certificate or Class
CE
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 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 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 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 3.23 or Section
4.18 of
this Agreement and (b) the aggregate amount of any Relief Act Interest
Shortfall, if any, for such Distribution Date. In addition, Accrued Certificate
Interest with respect to each Distribution Date, as to any Class CE Certificate,
shall be reduced by an amount equal to the portion allocable to such
Class CE
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).
“Additional
Form 10-D Disclosure”:
Has the meaning set forth in Section 5.06(a) of this Agreement.
“Additional
Form 10-K Disclosure”:
Has the meaning set forth in Section 5.06(d) of this Agreement.
“Additional
Servicer”:
Means each affiliate of the Servicer that Services any of the Mortgage
Loans and
each Person who is not an affiliate of the Servicer, who services 10%
or more of
the Mortgage Loans. For clarification purposes, the Master Servicer and
the
Securities Administrator are Additional Servicers.
“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 Fee, (ii) the Master Servicing Fee and (iii)
the
Credit Risk Management Fee.
“Administration
Fee Rate”:
The sum of (i) the Servicing Fee Rate, (ii) the Master Servicing Fee
Rate and
(iii) the Credit Risk Management Fee Rate.
“Advance
Facility”:
As defined in Section 3.26(a).
“Advance
Financing Person”:
As defined in Section 3.26(a).
“Advance
Reimbursement Amounts”:
As defined in Section 3.26(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
Account
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.
“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.
“Available
Distribution Amount”:
With respect to any Distribution Date, an amount equal to (1) the sum
of (a) the
aggregate of the amounts on deposit in the Collection Account and the
Distribution Account as of the close of business on the Servicer Remittance
Date, (b) the aggregate of any amounts deposited in the Distribution
Account by
the Servicer or the Master Servicer in respect of Prepayment Interest
Shortfalls
for such Distribution Date pursuant to Section 3.23 or Section 4.18 of
this
Agreement, (c) the aggregate of any P&I Advances for such Distribution Date
made by the Servicer pursuant to Section 5.03 of this Agreement and (d)
the
aggregate of any P&I Advances made by a successor servicer (including the
Master Servicer) for such Distribution Date pursuant to Section 8.02
of this
Agreement, reduced (to 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 Servicer, the Trustee, the Master Servicer, the Securities
Administrator or the Custodians pursuant to Section 3.09 or 9.05 of this
Agreement or otherwise payable in respect of Extraordinary Trust Fund
Expenses,
(v) the Credit Risk Management Fee, (vi) amounts deposited in the Collection
Account or the Distribution Account in error, (vii) the amount of any
Prepayment
Charges collected by the Servicer in connection with the Principal Prepayment
of
any of the Mortgage Loans and (viii) amounts reimbursable to a successor
servicer (including the Master Servicer) pursuant to Section 8.02 of
this
Agreement.
“Balloon
Mortgage Loan”:
A Mortgage Loan that provides for the payment of the unamortized principal
balance of such Mortgage Loan in a single payment, that is substantially
greater
than the preceding monthly payment at the maturity of such Mortgage
Loan.
“Balloon
Payment”:
A payment of the unamortized principal balance of a Mortgage Loan in
a single
payment, that is substantially greater than the preceding Monthly Payment
at the
maturity of such Mortgage Loan.
“Bankruptcy
Code”:
The Bankruptcy Reform Act of 1978 (Title 11 of the United States Code),
as
amended.
“Book-Entry
Certificates”:
The Offered Certificates 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, 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-ASAP1, Class X-0, Xxxxx X-0X, Xxxxx X-0X, 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 M-11, Class P, Class CE 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 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
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 Certificates)
of such Class of Certificates as of the Closing Date.
“Certificate
Margin”:
With respect to the Class A-1 Certificates and, for purposes of the definition
of “Marker Rate”, REMIC II Regular Interest A-1, 0.240% in the case of each
Distribution Date through and including the Optional Termination Date
and 0.480%
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, 0.070% in the case of each
Distribution Date through and including the Optional Termination Date
and 0.140%
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 Xxxxxxxx X-0X, 0.150% in the case of each
Distribution Date through and including the Optional Termination Date
and 0.300%
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, 0.200% in the case of each
Distribution Date through and including the Optional Termination Date
and 0.400%
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, 0.310% in the case of each
Distribution Date through and including the Optional Termination Date
and 0.620%
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, 0.410% in the case of each
Distribution Date through and including the Optional Termination Date
and 0.615%
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, 0.420% in the case of each
Distribution Date through and including the Optional Termination Date
and 0.630%
in the case of each Distribution Date thereafter.
With
respect to the Class M-3 Certificates and, for purposes of the definition
of
“Marker Rate”, REMIC II Regular Interest M-3, 0.440% in the case of each
Distribution Date through and including the Optional Termination Date
and 0.660%
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, 0.570% in the case of each
Distribution Date through and including the Optional Termination Date
and 0.855%
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, 0.620% in the case of each
Distribution Date through and including the Optional Termination Date
and 0.930%
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, 0.700% in the case of each
Distribution Date through and including the Optional Termination Date
and 1.050%
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, 0.900% in the case of each
Distribution Date through and including the Optional Termination Date
and 1.350%
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, 1.400% in the case of each
Distribution Date through and including the Optional Termination Date
and 1.900%
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, 1.850% in the case of each
Distribution Date through and including the Optional Termination Date
and 2.350%
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, 2.650% in the case of each
Distribution Date through and including the Optional Termination Date
and 3.150%
in the case of each Distribution Date thereafter.
With
respect to the Class M-11 Certificates and, for purposes of the definition
of
“Marker Rate”, REMIC II Regular Interest M-11, 2.000% in the case of each
Distribution Date through and including the Optional Termination Date
and 2.500%
in the case of each Distribution Date thereafter.
“Certificateholder”
or “Holder”:
The Person in whose name a Certificate is registered in the Certificate
Register, except that a Disqualified Organization or a Non-United States
Person
shall not be a Holder of a Residual Certificate for any purposes hereof,
and
solely for the purposes of giving any consent pursuant to this Agreement,
any
Certificate registered in the name of or beneficially owned by the Depositor,
the Sponsor, the Servicer, the Master Servicer, the Securities Administrator,
the Trustee or any Affiliate thereof shall be deemed not to be outstanding
and
the Voting Rights to which it is entitled shall not be taken into account
in
determining whether the requisite percentage of Voting Rights necessary
to
effect any such consent has been obtained, except as otherwise provided
in
Section 12.01. The Trustee and the Securities Administrator may conclusively
rely upon a certificate of the Depositor, the Sponsor, the Master Servicer,
the
Securities Administrator or the 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, minus all distributions
allocable to principal made thereon and Realized Losses allocated thereto,
if
any, on such immediately prior Distribution Date (or, in the case of
any date of
determination up to and including the first Distribution Date, the initial
Certificate Principal Balance of such Certificate, as stated on the face
thereof). With respect to each Class CE 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.
“Certification
Parties”:
Has the meaning set forth in Section 3.20 of this Agreement.
“Certifying
Person”:
Has the meaning set forth in Section 3.20 of this Agreement.
“Class”:
Collectively, all of the Certificates bearing the same class
designation.
“Class
A Certificate”:
Any Class A-1, 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-1 Principal Distribution Amount and (ii) the Class A-2 Principal
Distribution Amount.
“Class
A-1 Allocation Percentage”:
With respect to any Distribution Date is the percentage equivalent of
a
fraction, the numerator of which is (x) the Group I Principal Remittance
Amount
for such Distribution Date and the denominator of which is (y) the Principal
Remittance Amount for such Distribution Date.
“Class
A-1 Certificate”:
Any one of the Class A-1 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-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 Certificate Principal
Balance of the Class A-1 Certificates immediately prior to such Distribution
Date over (y) the lesser of (A) the product of (i) 57.60% and (ii) the
aggregate
Stated Principal Balance of the Group I 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 I
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 I Mortgage Loans as of the Cut-off
Date.
“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-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
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) 57.60% 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 Group II Mortgage Loans as of the Cut-off Date.
“Class
CE Certificate”:
Any one of the Class CE 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(f) 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(f)
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, Class M-10 and Class M-11.
“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) 64.60% 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-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) 71.10%
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-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)
75.60% 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-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) 78.80% 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-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) 82.00%
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-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)
84.70% 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) 88.70% 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) 92.50%
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-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)
94.10% 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-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) 95.40% and (ii) the aggregate Stated Principal
Balance of
the Mortgage Loans as of the last day of the related Due Period (after
giving
effect to scheduled payments of principal due during the related Due
Period, to
the extent received or advanced and unscheduled collections of principal
received during the related Prepayment Period) and (B) the aggregate
Stated
Principal Balance of the Mortgage Loans as of the last day of the related
Due
Period (after giving effect to scheduled payments of principal due during
the
related Due Period, to the extent received or advanced and unscheduled
collections of principal received during the related Prepayment Period)
minus
the product of (i) 0.50% and (ii) the aggregate principal balance of
the
Mortgage Loans as of the Cut-off Date.
“Class
M-11 Certificate”:
Any one of the Class M-11 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-11 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), (xi) the Certificate Principal Balance of the Class
M-10
Certificates (after taking into account the payment of the Class M-10
Principal
Distribution Amount on such Distribution Date), and (xii) the Certificate
Principal Balance of the Class M-11 Certificates immediately prior to
such
Distribution Date over (y) the lesser of (A) the product of (i) 97.00%
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
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”:
January 30, 2006.
“Code”:
The Internal Revenue Code of 1986 as amended from time to time.
“Collection
Account”:
The account or accounts created and maintained, or caused to be created
and
maintained, by the Servicer pursuant to Section 3.08(a) of this Agreement,
which
shall be entitled “Saxon Mortgage Services, Inc., as 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-ASAP1, Asset Backed
Pass-Through Certificates”. The Collection Account must be an Eligible
Account.
“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,
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: ACE Securities
Corp.,
2006-ASAP1, or at such other address as the Trustee may designate from
time to
time by notice to the Certificateholders, the Depositor, the Master Servicer,
the Securities Administrator and the Servicer, or (ii) with respect to
the
Securities Administrator, (A) for purposes of Certificate transfers and
surrender, Xxxxx Fargo Bank, National Association, Xxxxx Xxxxxx xxx Xxxxxxxxx
Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Corporate Trust (ACE
2006-ASAP1), and (B) for all other purposes, Xxxxx Fargo Bank, National
Association, X.X. Xxx 00, Xxxxxxxx, Xxxxxxxx 00000, Attention: Corporate
Trust
(ACE 2006-ASAP1) (or for overnight deliveries, at 0000 Xxx Xxxxxxxxx
Xxxx,
Xxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust (ACE 2006-ASAP1)),
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-1
|
A-1
|
|
|
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
|
M-10
|
|
|
REMIC
II REGULAR INTEREST M-11
|
M-11
|
|
|
REMIC
II REGULAR INTEREST P
|
P
|
“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 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 the Servicer and/or
Master
Servicer, each regarding the loss mitigation and advisory services to
be
provided by the Credit Risk Manager.
“Credit
Risk Management Fee”:
The amount payable to the Credit Risk Manager on each Distribution Date
as
compensation for all services rendered by it in the exercise and performance
of
any and all powers and duties of the Credit Risk Manager under the Credit
Risk
Management Agreements, which amount shall equal one twelfth of the product
of
(i) the Credit Risk Management Fee Rate multiplied by (ii) the Stated
Principal
Balance of the Mortgage Loans and any related REO Properties as of the
first day
of the related Due Period.
“Credit
Risk Management Fee Rate”:
0.015% per annum.
“Credit
Risk Manager”:
Xxxxxxx Fixed Income Services Inc., a Colorado corporation (formerly
known as
the Murryhill Company), and its successors and assigns.
“Custodial
Agreement”:.
Either (i) the DBNT Custodial Agreement or (ii) the Xxxxx Fargo Custodial
Agreement.
“Custodian”:
Either Xxxxx Fargo or DBNT or any other custodian appointed under any
custodial
agreement entered into after the date of this Agreement.
“Cut-off
Date”:
With respect to each Mortgage Loan, January 1, 2006. With respect to
all
Qualified Substitute Mortgage Loans, their respective dates of substitution.
References herein to the “Cut-off Date,” when used with respect to more than one
Mortgage Loan, shall be to the respective Cut-off Dates for such Mortgage
Loans.
“DBNT”:
Deutsche Bank National Trust Company, a national banking association,
or its
successor in interest.
“DBNT
Custodial Agreement”:
The Custodial Agreement, dated as of January 1, 2006, among the Trustee,
DBNT
and the Servicer, as may be amended from time to time.
“DBRS”:
Dominion Bond Rating Service.
“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).
“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
Xxxxx’x (or, if such Rating Agencies are no longer rating the Offered
Certificates, comparable ratings by any other nationally recognized statistical
rating agency then rating the Offered Certificates).
“Depository
Participant”:
A broker, dealer, bank or other financial institution or other Person
for whom
from time to time a Depository effects book-entry transfers and pledges
of
securities deposited with the Depository.
“Determination
Date”:
With respect to each Distribution Date, the 15th
day of the calendar month in which such Distribution Date occurs, or
if such
15th
day is not a Business Day, the Business Day immediately preceding such
15th
day. The Determination Date for purposes of Article X hereof shall mean
the
15th
day of the month, or if such 15th
day is not a Business Day, the first Business Day following such 15th
day.
“Directly
Operate”:
With respect to any REO Property, the furnishing or rendering of services
to the
tenants thereof, the management or operation of such REO Property, the
holding
of such REO Property primarily for sale to customers, the performance
of any
construction work thereon or any use of such REO Property in a trade
or business
conducted by REMIC I other than through an Independent Contractor; provided,
however, that the Servicer, on behalf of the Trustee, shall not be considered
to
Directly Operate an REO Property solely because the 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 Xxxxxxx 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 trust account or accounts created and maintained by the Securities
Administrator pursuant to Section 3.08(b) in the name of the Securities
Administrator for the benefit of the Certificateholders and designated
“Xxxxx
Fargo Bank, National Association, in trust for registered holders of
ACE
Securities Corp. Home Equity Loan Trust, Series 2006-ASAP1”. Funds in the
Distribution Account shall be held in trust for the Certificateholders
for the
uses and purposes set forth in this Agreement. The Distribution Account
must be
an Eligible Account.
“Distribution
Date”:
The 25th day of any month, or if such 25th day is not a Business Day,
the
Business Day immediately following such 25th day, commencing in February
2006.
“Due
Date”:
With respect to each Distribution Date, the day of the month on which
the
Monthly Payment is due on a Mortgage Loan during the related Due Period,
exclusive of any days of grace.
“Due
Period”:
With respect to any Distribution Date, the period commencing on the second
day
of the month immediately preceding the month in which such Distribution
Date
occurs and ending on the first day of the month in which such Distribution
Date
occurs.
“Eligible
Account”:
Any of (i) an account or accounts maintained with a Depository Institution,
(ii)
an account or accounts the deposits in which are fully insured by the
FDIC,
(iii) a trust account or accounts maintained with a federal depository
institution or state chartered depository institution acting in its fiduciary
capacity or (iv) an account of accounts acceptable to each Rating Agency
as
confirmed and approved in writing by each Rating Agency. Eligible Accounts
may
bear interest.
“ERISA”:
The Employee Retirement Income Security Act of 1974, as amended from
time to
time.
“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 Servicer is entitled to be reimbursed from Liquidation Proceeds with
respect
to such liquidated Mortgage Loan pursuant to Section 3.09 of this
Agreement.
“Exchange
Act”:
The Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder.
“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).
“Xxxxxx
Xxx”:
Xxxxxx Xxx, 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 October 2035.
“Final
Recovery Determination”:
With respect to any defaulted Mortgage Loan or any REO Property (other
than a
Mortgage Loan or REO Property purchased by an originator, the Sponsor
or the
Master Servicer pursuant to or as contemplated by Section 2.03, 3.13(c)
or
Section 10.01), a determination made by the Servicer that all Insurance
Proceeds, Liquidation Proceeds and other payments or recoveries which
the
Servicer, in its reasonable good faith judgment, expects to be finally
recoverable in respect thereof have been so recovered, which determination
shall
be evidenced by a certificate of a Servicing Officer 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) of this Agreement.
“Xxxxxxx
Mac”:
Xxxxxxx Mac, formerly known as the Federal Home Loan Mortgage Corporation,
or
any successor thereto.
“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
I Allocation Percentage”:
The aggregate principal balance of the Group I Mortgage Loans divided
by the sum
of the aggregate principal balance of the Group I Mortgage Loans and
the Group
II Mortgage Loans.
“Group
I 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 I 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, the Servicer or the Credit Risk Manager with respect
to the
Group I Mortgage Loans pursuant to this Agreement or the Custodial
Agreements).
“Group
I Mortgage Loans”:
Those Mortgage Loans identified on the Mortgage Loan Schedule as Group
I
Mortgage Loans.
“Group
I 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 I 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 I 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 I Mortgage Loans, net in each case of payments or reimbursements
to
the Trustee, the Custodians, the Master Servicer, the Securities Administrator,
the Servicer or the Credit Risk Manager and (iv) the Class A-1 Allocation
Percentage of the amount of any Overcollateralization Increase Amount
for such
Distribution Date minus
(v) the Class A-1 Allocation Percentage of the amount of any
Overcollateralization Reduction Amount for such Distribution Date.
“Group
I 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 I 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 I Mortgage Loans
and the
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
Master Servicer, the Servicer or the Credit Risk Manager with respect
to the
Group II Mortgage Loans pursuant to this Agreement or the Custodial
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 Servicer or the Credit Risk Manager 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 specified Person, any such Person who (a)
is in
fact independent of the Depositor, the Master Servicer, the Securities
Administrator, the Servicer, the Sponsor, any originator and their respective
Affiliates, (b) does not have any direct financial interest in or any
material
indirect financial interest in the Depositor, the Master Servicer, the
Securities Administrator, the Servicer, the Sponsor, any originator or
any
Affiliate thereof, (c) is not connected with the Depositor, the Master
Servicer,
the Securities Administrator, the Servicer, the Sponsor, any originator
or any
Affiliate thereof as an officer, employee, promoter, underwriter, trustee,
partner, director or Person performing similar functions and (d) is not
a member
of the immediate family of a Person defined in clause (b) or (c) above;
provided, however, that a Person shall not fail to be Independent of
the
Depositor, the Master Servicer, the Securities Administrator, the Servicer,
the
Sponsor, any originator or any Affiliate thereof merely because such
Person is
the beneficial owner of 1% or less of any class of securities issued
by the
Depositor, the Master Servicer, the Securities Administrator, the Servicer,
the
Sponsor, any originator or any Affiliate thereof, as the case may
be.
“Independent
Contractor”:
Either (i) any Person (other than the 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 the 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 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.
“Insurance
Proceeds”:
Proceeds of any title policy, hazard policy or other insurance policy,
covering
a Mortgage Loan or the related Mortgaged Property, to the extent such
proceeds
are not to be applied to the restoration of the related Mortgaged Property
or
released to the Mortgagor or a senior lienholder in accordance with Accepted
Servicing Practices, subject to the terms and conditions of the related
Mortgage
Note and Mortgage.
“Interest
Accrual Period”:
With respect to any Distribution Date and the 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 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 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 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 I Interest
Remittance Amount and (ii) the Group II Interest Remittance Amount.
“ISDA
Master Agreement”:
The ISDA Master Agreement dated as of January 30, 2006, as amended and
supplemented from time to time, between the Swap Provider and the
Trustee.
“Last
Scheduled Distribution Date”:
The Distribution Date occurring in December 2035, which is the Distribution
Date
immediately following the maturity date for the Mortgage Loan with the
latest
maturity date.
“Late
Collections”:
With respect to any Mortgage Loan and any Due Period, all amounts received
subsequent to the Determination Date immediately following such Due Period
with
respect to such Mortgage Loan, whether as late payments of Monthly Payments
or
as Insurance Proceeds, Liquidation Proceeds or otherwise, which represent
late
payments or collections of principal and/or interest due (without regard
to any
acceleration of payments under the related Mortgage and Mortgage Note)
but
delinquent for such Due Period and not previously recovered.
“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.
“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 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 3.22 or Section 10.01 of this Agreement or (iv) any
Subsequent
Recoveries.
“Loan-to-Value
Ratio”:
As of any date of determination, the fraction, expressed as a percentage,
the
numerator of which is the principal balance of the related Mortgage Loan
at such
date and the denominator of which is the Value of the related Mortgaged
Property.
“London
Business Day”:
Any day on which banks in the Cities of London and New York are open
and
conducting transactions in United States dollars.
“Loss
Severity Percentage”:
With respect to any Distribution Date, the percentage equivalent of a
fraction,
the numerator of which is the amount of Realized Losses incurred on a
Mortgage
Loan and the denominator of which is the principal balance of such Mortgage
Loan
immediately prior to the liquidation of such Mortgage Loan.
“Marker
Rate”:
With respect to the Class CE 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-1, 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,
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, Xxxxx 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).
“Master
Servicing Fee”:
With respect to each Mortgage Loan and for any calendar month, an amount
equal
to one-twelfth of the product of the Master Servicing Fee multiplied
by the
Scheduled Principal Balance of the Mortgage Loans as of the Due Date
in the
preceding calendar month.
“Master
Servicing Fee Rate”:
0.0135% per annum.
“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-1, 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 M-11 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 X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class M-6,
Class M-7,
Class M-8, Class M-9, Class M-10 or Class M-11 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 Servicer pursuant to Section 3.01 of this Agreement; and (c) on the
assumption that all other amounts, if any, due under such Mortgage Loan
are paid
when due.
“Moody’s”:
Xxxxx’x 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 Custodians pursuant to
Section
2.01 of this Agreement and pursuant to the Custodial Agreement, as held
from
time to time as a part of the Trust Fund, the Mortgage Loans so held
being
identified in the Mortgage Loan Schedule.
“Mortgage
Loan Documents”:
The documents evidencing or relating to each Mortgage Loan delivered
to the
applicable 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 January 30,
2006,
between the Depositor and the Sponsor, 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 I 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 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) the
Servicer;
(xxxvii) the
applicable Custodian; and
(xxxviii) a
code indicating whether the Mortgage Loan is secured by a first or second
lien.
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 and (D) any Net Swap Payment or Swap
Termination
Payment (not caused by a Swap Provider Trigger Event) owed to the Swap
Provider.
“Net
Mortgage Rate”:
With respect to any Mortgage Loan (or the related REO Property) as of
any date
of determination, a per annum rate of interest equal to the then applicable
Mortgage Rate for such Mortgage Loan minus the Administration Fee
Rate.
“Net
Swap Payment”:
With respect to each Distribution Date, the net payment required to be
made
pursuant to the terms of the Swap Agreement by either the Swap Provider
or the
Supplemental Interest Trust, which net payment shall not take into account
any
Swap Termination Payment.
“Net
WAC Pass-Through Rate”:
With respect to the Class A-1 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 I Mortgage
Loans in
the prior calendar month minus the fees payable to the Servicer, the
Master
Servicer and the Credit Risk Manager with respect to the Group I Mortgage
Loans
for such Distribution Date and the Group I 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 I 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). 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 I-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 Servicer, the
Master
Servicer and the Credit Risk Manager with respect to the Group II Mortgage
Loans
for such Distribution Date 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). 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 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-1 Certificates and (ii) 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 I-SUB, subject to a cap and a floor equal to the REMIC
II
Remittance Rate on REMIC II Regular Interest I-GRP, and (b) 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.
“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
Servicer or a successor to the Servicer (including the Master Servicer)
will not
or, in the case of a proposed P&I Advance, would not be ultimately
recoverable from related Late Collections, Insurance Proceeds or Liquidation
Proceeds on such Mortgage Loan or REO Property as provided herein.
“Nonrecoverable
Servicing Advance”:
Any Servicing Advance previously made or proposed to be made in respect
of a
Mortgage Loan or REO Property that, in the good faith business judgment
of the
Servicer or a successor to the Servicer (including the Master Servicer)
will not
or, in the case of a proposed Servicing Advance, would not be ultimately
recoverable from related Late Collections, Insurance Proceeds or Liquidation
Proceeds on such Mortgage Loan or REO Property as provided herein.
“Non-United
States Person”:
Any Person other than a United States Person.
“Notional
Amount”:
With respect to the Class CE 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
$493,170,720.66.
“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 the 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-1 Certificates and, for purposes of the definition
of “Marker Rate”, REMIC II Regular Interest A-1, 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.
With
respect to the Class M-11 Certificates and, for purposes of the definition
of
“Marker Rate”, REMIC II Regular Interest M-11, 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 Servicer, the Securities Administrator or the
Master
Servicer, acceptable to the Trustee, except that any opinion of counsel
relating
to (a) the qualification of any REMIC as a REMIC or (b) compliance with
the
REMIC Provisions must be an opinion of Independent counsel.
“Optional
Termination Date”:
The Distribution Date on which the aggregate principal balance of the
Mortgage
Loans (and properties acquired in respect thereof) remaining in the Trust
Fund
as of the last day of the related Due Period is reduced to less than
or equal to
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 Servicer
in
respect of any Determination Date pursuant to Section 5.03 of this Agreement,
an
Advance Financing Person pursuant to Section 3.26 of this Agreement or
in
respect of any Distribution Date by a successor servicer (including the
Master
Servicer) pursuant to Section 8.02 of this Agreement (which advances
shall not
include principal or interest shortfalls due to bankruptcy proceedings
or
application of the Relief Act or similar state or local laws.)
“Pass-Through
Rate”:
With respect to the Class A Certificates and 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 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 (xix) below,
and
the denominator of which is the aggregate Uncertificated Balances of
REMIC II
Regular Interest AA, REMIC II Regular Interest A-1, 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. For purposes of calculating the Pass-Through Rate for the
Class CE
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-1 minus the
Marker
Rate, applied to an amount equal to the Uncertificated Balance of REMIC
II
Regular Interest A-1;
(iii) 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;
(iv) 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;
(v) 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;
(vi) 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;
(vii) 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;
(viii) 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;
(ix) 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;
(x) 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;
(xi) 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;
(xii) 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;
(xiii) 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;
(xiv) 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;
(xv) 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;
(xvi) 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;
(xvii) the
REMIC II Remittance Rate for REMIC II Regular Interest M-11 minus the
Marker
Rate, applied to an amount equal to the Uncertificated Balance of REMIC
II
Regular Interest M-11;
(xviii) 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
(xix) 100%
of the interest on REMIC II Regular Interest P.
“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 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 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 Moody’s and S&P and provided that each such investment has an
original maturity of no more than 365 days; and provided further that,
if the
only Rating Agency is S&P and if the depository or trust company is a
principal subsidiary of a bank holding company and the debt obligations
of such
subsidiary are not separately rated, the applicable rating shall be that
of the
bank holding company; and, provided further that, if the original maturity
of
such short-term obligations of a domestic branch of a foreign depository
institution or trust company shall exceed 30 days, the short-term rating
of such
institution shall be A-1+ in the case of S&P if S&P is the Rating
Agency; and (B) any other demand or time deposit or deposit which is
fully
insured by the FDIC;
(iii) repurchase
obligations with a term not to exceed 30 days with respect to any security
described in clause (i) above and entered into with a depository institution
or
trust company (acting as principal) rated A-1+ or higher by S&P, and A2 or
higher by Moody’s, provided, however, that collateral transferred pursuant to
such repurchase obligation must be of the type described in clause (i)
above and
must (A) be valued daily at current market prices plus accrued interest,
(B)
pursuant to such valuation, be equal, at all times, to 105% of the cash
transferred by a party in exchange for such collateral and (C) be delivered
to
such party or, if such party is supplying the collateral, an agent for
such
party, in such a manner as to accomplish perfection of a security interest
in
the collateral by possession of certificated securities;
(iv) securities
bearing interest or sold at a discount that are issued by any corporation
incorporated under the laws of the United States of America or any state
thereof
and that are rated by each Rating Agency that rates such securities in
its
highest long-term unsecured rating categories at the time of such investment
or
contractual commitment providing for such investment;
(v) commercial
paper (including both non-interest-bearing discount obligations and
interest-bearing obligations payable on demand or on a specified date
not more
than 30 days after the date of acquisition thereof) that is rated by
each Rating
Agency that rates such securities in its highest short-term unsecured
debt
rating available at the time of such investment;
(vi) units
of money market funds that have been rated “AAA” by S&P or “Aaa” by Moody’s
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, Xxxxx plans and
bank
collective investment funds and insurance company general or separate
accounts
in which such plans, accounts or arrangements are invested, that are
subject to
ERISA or Section 4975 of the Code.
“Prepayment
Assumption”:
A prepayment rate 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; provided, however, the prepayment rate will not
exceed 85%
per annum in any period for any percentage of PPC; 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
Servicer,
the Master Servicer and the Trustee on the Closing Date. The Prepayment
Charge
Schedule shall set forth the following information with respect to each
Prepayment Charge:
(i) the
Mortgage Loan identifying number;
(ii) a
code indicating the type of Prepayment Charge;
(iii) the
date on which the first Monthly Payment was due on the related Mortgage
Loan;
(iv) the
term of the related Prepayment Charge;
(v) the
original Stated Principal Balance of the related Mortgage Loan; and
(vi) the
Stated Principal Balance of the related Mortgage Loan as of the Cut-off
Date.
“Prepayment
Interest Excess”:
With respect to each Mortgage Loan that was the subject of a Principal
Prepayment in full during the portion of the related Prepayment Period
occurring
between the first day of the calendar month in which such Distribution
Date
occurs and the 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. The Servicer may withdraw
such
Prepayment Interest Excess from the Collection Account in accordance
with
Section 3.09(a)(x).
“Prepayment
Interest Shortfall”:
With respect to any Distribution Date, for each such Mortgage Loan that
was the
subject of a Principal Prepayment in full or in part during the portion
of the
related Prepayment Period occurring between the first day of the related
Prepayment Period and the last day of the calendar month preceding the
month in
which such Distribution Date occurs that was applied by the 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 Servicer and the Master Servicer in respect of
any
Prepayment Interest Shortfall are set forth in Section 3.23 and Section
4.18,
respectively of this Agreement.
“Prepayment
Period”:
With respect to 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 sixteenth (16th) 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 fifteenth
(15th)
day of the month in which such Distribution Date occurs with respect
to
prepayments in full.
“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 I 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 I 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
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), (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 Servicer, which payment or P&I Advance
had as of the date of purchase been distributed pursuant to Section 5.01,
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 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, (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 Collection Account pursuant to Section 3.09(a)(ix)
and
Section 3.13(b) and (v) in the case of a Mortgage Loan required to be
purchased
pursuant to Section 2.03, expenses reasonably incurred or to be incurred
by the
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.
“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”:
Xxxxx’x, S&P and DBRS 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 Servicer.
“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 Servicer
to
the Master Servicer (in substantially the form of Schedule 4 hereto)
equal to
(i) the unpaid principal balance of such Mortgage Loan as of the commencement
of
the calendar month in which the Final Recovery Determination was made,
plus (ii)
accrued interest from the Due Date as to which interest was last paid
by the
Mortgagor through the end of the calendar month in which such Final Recovery
Determination was made, calculated in the case of each calendar month
during
such period (A) at an annual rate equal to the annual rate at which interest
was
then accruing on such Mortgage Loan and (B) on a principal amount equal
to the
Stated Principal Balance of such Mortgage Loan as of the close of business
on
the Distribution Date during such calendar month, plus (iii) any amounts
previously withdrawn from the Collection Account in respect of such Mortgage
Loan pursuant to Section 3.09(a)(ix) and Section 3.13(b) of this Agreement,
minus (iv) the proceeds, if any, received in respect of such Mortgage
Loan
during the calendar month in which such Final Recovery Determination
was made,
net of amounts that are payable therefrom to the Servicer with respect
to such
Mortgage Loan pursuant to Section 3.09(a)(iii) of this Agreement.
With
respect to any REO Property as to which a Final Recovery Determination
has been
made, an amount (not less than zero) equal to (i) the 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 Collection
Account in
respect of the related Mortgage Loan pursuant to Section 3.09(a)(ix)
and Section
3.13(b) of this Agreement, minus (v) the aggregate of all P&I Advances and
Servicing Advances (in the case of Servicing Advances, without duplication
of
amounts netted out of the rental income, Insurance Proceeds and Liquidation
Proceeds described in clause (vi) below) made by the Servicer in respect
of such
REO Property or the related Mortgage Loan for which the Servicer has
been or, in
connection with such Final Recovery Determination, will be reimbursed
pursuant
to Section 3.22 of this Agreement out of rental income, Insurance Proceeds
and
Liquidation Proceeds received in respect of such REO Property, minus
(vi) the
total of all net rental income, Insurance Proceeds and Liquidation Proceeds
received in respect of such REO Property that has been, or in connection
with
such Final Recovery Determination, will be transferred to the Distribution
Account pursuant to Section 3.22 of this Agreement.
With
respect to each Mortgage Loan which has become the subject of a Deficient
Valuation, the difference between the principal balance of the Mortgage
Loan
outstanding immediately prior to such Deficient Valuation and the principal
balance of the Mortgage Loan as reduced by the Deficient Valuation.
With
respect to each Mortgage Loan which has become the subject of a Debt
Service
Reduction, the portion, if any, of the reduction in each affected Monthly
Payment attributable to a reduction in the Mortgage Rate imposed by a
court of
competent jurisdiction. Each such Realized Loss shall be deemed to have
been
incurred on the Due Date for each affected Monthly Payment.
To
the extent the 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 Certificate
or Class P
Certificate.
“Regular
Interest”:
A “regular interest” in a REMIC within the meaning of Section 860G(a)(1) of the
Code.
“Regulation
AB”:
Means Subpart 229.1100 - Asset Backed Securities (Regulation AB), 17
C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject
to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed Securities, Securities Act Release
No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of
the
Commission, or as may be provided by the Commission or its staff from
time to
time.
“Relevant
Servicing Criteria”:
Means the Servicing Criteria applicable to the various parties, as set
forth on
Exhibit E attached hereto. For clarification purposes, multiple parties
can have
responsibility for the same Relevant Servicing Criteria. With respect
to a
Servicing Function Participant engaged by the Master Servicer, the Securities
Administrator, 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) and (v) the Collection Account, 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 and (iv)
the
Supplemental Interest Trust.
“REMIC
I Group I Regular Interests”:
REMIC I Regular Interest I-1-A through REMIC I Regular Interest I-42-B
as
designated in the Preliminary Statement hereto.
“REMIC
I Group II Regular Interests”:
REMIC I Regular Interest II-1-A through REMIC II Regular Interest II-42-B
as
designated in the Preliminary Statement hereto.
“REMIC
I Regular Interest”:
Any of the 168 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 each REMIC I Group I Regular Interest ending with the
designation “A”, a per annum rate equal to the weighted average of the Net
Mortgage Rates of the Group I Mortgage Loans multiplied by 2, subject
to a
maximum rate of 9.46%. With respect to each REMIC I Group I Regular Interest
ending with the designation “B”, the greater of (x) a per annum rate equal to
the excess, if any, of (i) 2 multiplied by the weighted average of the
Net
Mortgage Rates of the Group I Mortgage Loans over (ii) 9.46% and (y)
0.00%. 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 Expense Adjusted
Net
Mortgage Rates of the Group II Mortgage Loans multiplied by 2, subject
to a
maximum rate of 9.46%. 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) 9.46% and (y)
0.00%.
“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-1, 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, 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-1, 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 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-1, 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 M-11 and the denominator of which is the aggregate of
the
Uncertificated Balances of REMIC II Regular Interest A-1, 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-9 REMIC II Regular Interest M-10, REMIC II
Regular
Interest M-11 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-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 A-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 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 I
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 M-11”:
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-11 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 I-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 I-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 I-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 I-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 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 Remittance Rate”:
With respect to REMIC II Regular Interest AA, REMIC II Regular Interest
A-1,
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,
REMIC II Regular Interest ZZ, REMIC II Regular Interest I-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: (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-42-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC
I Remittance
Rate
|
||
|
II-1-A
through II-42-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC
I Remittance
Rate
|
|||
|
2
|
I-2-A
through I-42-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC
I Remittance
Rate
|
||
|
II-2-A
through II-42-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
|
|||
|
3
|
I-3-A
through I-42-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC
I Remittance
Rate
|
||
|
II-3-A
through II-42-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
|
|||
|
4
|
I-4-A
through I-42-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC
I Remittance
Rate
|
||
|
II-4-A
through II-42-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
|
|||
|
5
|
I-5-A
through I-42-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC
I Remittance
Rate
|
||
|
II-5-A
through II-42-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
|
|||
|
6
|
I-6-A
through I-42-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC
I Remittance
Rate
|
||
|
II-6-A
through II-42-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
|
|||
|
7
|
I-7-A
through I-42-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC
I Remittance
Rate
|
||
|
II-7-A
through II-42-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
|
|||
|
II-1-A
through II-6-A
|
REMIC
I Remittance Rate
|
|||
|
8
|
I-8-A
through I-42-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC
I Remittance
Rate
|
||
|
II-8-A
through II-42-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
|
|||
|
9
|
I-9-A
through I-42-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC
I Remittance
Rate
|
||
|
II-9-A
through II-42-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
|
|||
|
10
|
I-10-A
through I-42-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC
I Remittance
Rate
|
||
|
II-10-A
through II-42-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
|
|||
|
11
|
I-11-A
through I-42-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC
I Remittance
Rate
|
||
|
II-11-A
through II-42-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
|
|||
|
12
|
I-12-A
through I-42-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC
I Remittance
Rate
|
||
|
II-12-A
through II-42-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
|
|||
|
13
|
I-13-A
through I-42-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC
I Remittance
Rate
|
||
|
II-13-A
through II-42-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
|
|||
|
14
|
I-14-A
through I-42-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC
I Remittance
Rate
|
||
|
II-14-A
through II-42-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
|
|||
|
15
|
I-15-A
through I-42-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC
I Remittance
Rate
|
||
|
II-15-A
through II-42-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
|
|||
|
16
|
I-16-A
through I-42-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC
I Remittance
Rate
|
||
|
II-16-A
through II-42-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
|
|||
|
17
|
I-17-A
through I-42-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC
I Remittance
Rate
|
||
|
II-17-A
through II-42-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
|
|||
|
18
|
I-18-A
through I-42-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC
I Remittance
Rate
|
||
|
II-18-A
through II-42-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
|
|||
|
19
|
I-19-A
through I-42-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC
I Remittance
Rate
|
||
|
II-19-A
through II-42-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
|
|||
|
20
|
I-20-A
through I-42-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC
I Remittance
Rate
|
||
|
II-20-A
through II-42-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
|
|||
|
21
|
I-21-A
through I-42-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC
I Remittance
Rate
|
||
|
II-21-A
through II-42-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
|
|||
|
22
|
I-22-A
through I-42-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC
I Remittance
Rate
|
||
|
II-22-A
through II-42-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
|
|||
|
23
|
I-23-A
through I-42-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC
I Remittance
Rate
|
||
|
II-23-A
through II-42-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
|
|||
|
24
|
I-24-A
through I-42-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC
I Remittance
Rate
|
||
|
II-24-A
through II-42-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
|
|||
|
25
|
I-25-A
through I-42-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC
I Remittance
Rate
|
||
|
II-25-A
through II-42-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
|
|||
|
26
|
I-26-A
through I-42-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC
I Remittance
Rate
|
||
|
II-26-A
through II-42-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
|
|||
|
27
|
I-27-A
through I-42-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC
I Remittance
Rate
|
||
|
II-27-A
through II-42-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
|
|||
|
28
|
I-28-A
through I-42-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC
I Remittance
Rate
|
||
|
II-28-A
through II-42-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
|
|||
|
29
|
I-29-A
through I-42-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC
I Remittance
Rate
|
||
|
II-29-A
through II-42-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
|
REMIC
I Remittance Rate
|
|||
|
30
|
I-30-A
through I-42-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC
I Remittance
Rate
|
||
|
II-30-A
through II-42-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
|
|||
|
31
|
I-31-A
through I-42-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC
I Remittance
Rate
|
||
|
II-31-A
through II-42-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
|
|||
|
32
|
I-32-A
through I-42-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC
I Remittance
Rate
|
||
|
II-32-A
through II-42-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
|
|||
|
33
|
I-33-A
through I-42-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC
I Remittance
Rate
|
||
|
II-33-A
through II-42-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
|
|||
|
34
|
I-34-A
through I-42-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC
I Remittance
Rate
|
||
|
II-34-A
through II-42-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
|
|||
|
35
|
I-35-A
through I-42-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC
I Remittance
Rate
|
||
|
II-35-A
through II-42-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
|
|||
|
36
|
I-36-A
through I-42-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC
I Remittance
Rate
|
||
|
II-36-A
through II-42-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
|
|||
|
37
|
I-37-A
through I-42-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC
I Remittance
Rate
|
||
|
II-37-A
through II-42-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
|
|||
|
38
|
I-38-A
through I-42-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC
I Remittance
Rate
|
||
|
II-38-A
through II-42-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
|
|||
|
39
|
I-39-A
through I-42-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC
I Remittance
Rate
|
||
|
II-39-A
through II-42-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
|
|||
|
40
|
I-40-A
through I-42-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC
I Remittance
Rate
|
||
|
II-40-A
through II-42-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
|
|||
|
41
|
I-41-A
through I-42-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC
I Remittance
Rate
|
||
|
II-41-A
through II-42-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
|
|||
|
42
|
I-42-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC
I Remittance
Rate
|
||
|
II-42-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
|
|||
|
thereafter
|
I-1-A
through I-42-A
|
REMIC
I Remittance Rate
|
||
|
II-1-A
through II-42-A
|
REMIC
I Remittance Rate
|
With
respect to REMIC II Regular Interest I-GRP, a per annum rate (but not
less than
zero) equal to the weighted average of: (x) with respect to REMIC I Group
I
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 I 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-42-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC
I Remittance
Rate
|
||
|
2
|
I-2-A
through I-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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
|
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
|
|||
|
thereafter
|
I-1-A
through I-42-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: (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
|
II-1-A
through II-42-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of REMIC
I Remittance
Rate
|
||
|
2
|
II-2-A
through II-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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-42-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
|
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
|
|||
|
thereafter
|
II-1-A
through II-42-A
|
REMIC
I Remittance Rate
|
With
respect to REMIC II Regular Interest IO, and (i) the first Distribution
Date
through the 42nd
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 I-SUB, REMIC II Regular
Interest
I-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 I 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 the Servicer pursuant to Section 5.03(a) of this
Agreement.
“Rents
from Real Property”:
With respect to any REO Property, gross income of the character described
in
Section 856(d) of the Code as being included in the term “rents from real
property.”
“REO
Account”:
The account or accounts maintained, or caused to be maintained, by the
Servicer
in respect of an REO Property pursuant to Section 3.22 of this
Agreement.
“REO
Disposition”:
The sale or other disposition of an REO Property on behalf of REMIC
I.
“REO
Imputed Interest”:
As to any REO Property, for any calendar month during which such REO
Property
was at any time part of REMIC I, one month’s interest at the applicable Net
Mortgage Rate on the Stated Principal Balance of such REO Property (or,
in the
case of the first such calendar month, of the related Mortgage Loan,
if
appropriate) as of the close of business on the Distribution Date in
such
calendar month.
“REO
Principal Amortization”:
With respect to any REO Property, for any calendar month, the excess,
if any, of
(a) the aggregate of all amounts received in respect of such REO Property
during
such calendar month, whether in the form of rental income, sale proceeds
(including, without limitation, that portion of the Termination Price
paid in
connection with a purchase of all of the Mortgage Loans and REO Properties
pursuant to Section 10.01 of this Agreement that is allocable to such
REO
Property) or otherwise, net of any portion of such amounts (i) payable
in
respect of the proper operation, management and maintenance of such REO
Property
or (ii) payable or reimbursable to the Servicer pursuant to Section 3.22(d)
of
this Agreement for unpaid Servicing Fees in respect of the related Mortgage
Loan
and unreimbursed Servicing Advances and P&I Advances in respect of such REO
Property or the related Mortgage Loan, over (b) the REO Imputed Interest
in
respect of such REO Property for such calendar month.
“REO
Property”:
A Mortgaged Property acquired by the Servicer or its nominee on behalf
of REMIC
I through foreclosure or deed-in-lieu of foreclosure, as described in
Section
3.22 of this Agreement.
“Reportable
Event”:
Has the meaning set forth in Section 5.06(b) of this Agreement.
“Required
Overcollateralization Amount”:
With respect to any Distribution Date (i) prior to the Stepdown Date,
the
product of (A) 1.50% 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) 3.00% 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 3.25 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 Xxxxxx
Xxx
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”:
Rule 144A under the Securities Act.
“S&P”:
Standard & Poor’s, a division of the XxXxxx-Xxxx Companies,
Inc.
“Xxxxxxxx-Xxxxx
Act”:
Means the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations of
the
Commission promulgated thereunder (including any interpretations thereof
by the
Commission’s staff).
“Xxxxxxxx-Xxxxx
Certification”:
Has the meaning set forth in Section 3.20 of this Agreement.
“Scheduled
Principal Balance”:
With respect to any Mortgage Loan: (a) as of the Cut-off Date, the outstanding
principal balance of such Mortgage Loan as of such date, net of the principal
portion of all unpaid Monthly Payments, if any, due on or before such
date; (b)
as of any Due Date subsequent to the Cut-off Date up to and including
the Due
Date in the calendar month in which a Liquidation Event occurs with respect
to
such Mortgage Loan, the Scheduled Principal Balance of such Mortgage
Loan as of
the Cut-off Date, minus the sum of (i) the principal portion of each
Monthly
Payment due on or before such Due Date but subsequent to the Cut-off
Date,
whether or not received, (ii) all Principal Prepayments received before
such Due
Date but after the Cut-off Date, (iii) the principal portion of all Liquidation
Proceeds and Insurance Proceeds received before such Due Date but after
the
Cut-off Date, net of any portion thereof that represents principal due
(without
regard to any acceleration of payments under the related Mortgage and
Mortgage
Note) on a Due Date occurring on or before the date on which such proceeds
were
received and (iv) any Realized Loss incurred with respect thereto as
a result of
a Deficient Valuation occurring before such Due Date, but only to the
extent
such Realized Loss represents a reduction in the portion of principal
of such
Mortgage Loan not yet due (without regard to any acceleration of payments
under
the related Mortgage and Mortgage Note) as of the date of such Deficient
Valuation; and (c) as of any Due Date subsequent to the occurrence of
a
Liquidation Event with respect to such Mortgage Loan, zero. With respect
to any
REO Property: (a) as of any Due Date subsequent to the date of its acquisition
on behalf of the Trust Fund up to and including the Due Date in the calendar
month in which a Liquidation Event occurs with respect to such REO Property,
an
amount (not less than zero) equal to the Scheduled Principal Balance
of the
related Mortgage Loan as of the Due Date in the calendar month in which
such REO
Property was acquired, minus the aggregate amount of REO Principal Amortization,
if any, in respect of REO Property for all previously ended calendar
months; and
(b) as of any Due Date subsequent to the occurrence of a Liquidation
Event with
respect to such REO Property, zero.
“Securities
Act”:
The Securities Act of 1933, as amended, and the rules and regulations
thereunder.
“Securities
Administrator”:
As of the Closing Date, Xxxxx Fargo Bank, National Association and thereafter,
its respective successors in interest that meet the qualifications of
this
Agreement. The Securities Administrator and the Master Servicer shall
at all
times be the same Person or Affiliates.
“Senior
Interest Distribution Amount”:
With respect to any Distribution Date, an amount equal to the sum of
(i) the
Interest Distribution Amount for such Distribution Date for the Class
A
Certificates and (ii) the Interest Carry Forward Amount, if any, for
such
Distribution Date for the Class A Certificates.
“Servicer”:
Saxon Mortgage Services, Inc., or any successor thereto appointed hereunder
in
connection with the servicing and administration of the Mortgage
Loans.
“Servicer
Event of Default”:
One or more of the events described in Section 8.01(a).
“Servicer
Remittance Date”:
With respect to any Distribution Date, by 12:00 p.m. on the 21st day
of each
month; provided that if the 21st day of a given month is a Saturday,
the
Servicer Remittance Date shall be the immediately preceding Business
Day and if
the 21st day of a given month is a Sunday or otherwise not a Business
Day
(except for Saturdays), the Servicer Remittance Date shall be the next
Business
Day.
“Servicer
Report”:
A report (substantially in the form of Schedule 5 hereto) or otherwise
in form
and substance acceptable to the Master Servicer and Securities Administrator
on
an electronic data file or tape prepared by the Servicer pursuant to
Section
5.03(a) of this Agreement, with such additions, deletions and modifications
as
agreed to by the Master Servicer, the Securities Administrator and the
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) the
Servicer
with respect to any Mortgage Loans that were transferred to the Servicer
prior
to the Cut-off Date and/or (b) the Depositor with respect to any Mortgage
Loans
that were transferred to the Servicer after the Cut-off Date, as applicable)
by
the Servicer in connection with a default, delinquency or other unanticipated
event by the 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 3.22 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 Servicer to perform its obligations
under
this Agreement. Servicing Advances also include any reasonable “out-of-pocket”
cost and expenses (including legal fees) incurred by the Servicer in
connection
with executing and recording instruments of satisfaction, deeds of reconveyance
or Assignments to the extent not recovered from the Mortgagor or otherwise
payable under this Agreement. The Servicer shall not be required to make
any
Nonrecoverable Servicing Advances.
“Servicing
Advance Schedule”:
With respect to any Servicing Advances incurred prior to the Cut-off
Date, the
schedule or schedules provided by (a) the Servicer with respect to any
Mortgage
Loans that were transferred to the Servicer prior to the Cut-off Date
and/or (b)
the Depositor with respect to any Mortgage Loans that were transferred
to the
Servicer after the Cut-off Date, as applicable, to the Master Servicer
and, if
such schedule is provided by the Depositor, to the Servicer, on the date
on
which the Servicer seeks reimbursement for a Servicing Advance made by
the
Servicer, which schedule or schedules shall contain the information set
forth on
Schedule 6.
“Servicing
Criteria”:
Means the criteria set forth in paragraph (d) of Item 1122 of Regulation
AB, as
such may be amended from time to time.
“Servicing
Fee”:
With respect to each Mortgage Loan and for any calendar month, an amount
equal
to one-twelfth of the product of the Servicing Fee Rate multiplied by
the
Scheduled Principal Balance of the Mortgage Loans as of the Due Date
in the
preceding calendar month. The Servicing Fee is payable solely from collections
of interest on the Mortgage Loans.
“Servicing
Fee Rate”:
0.50% per annum.
“Servicing
Function Participant”:
Means any Sub-Servicer, Subcontractor or any other Person, other than
the
Servicer, the Master Servicer, each Custodian, the Trustee and the Securities
Administrator, that is performing activities addressed by the Servicing
Criteria, unless such Person’s activities relate only to 5% or less of the
Mortgage Loans.
“Servicing
Officer”:
Any officer of the Servicer or the Master Servicer involved in, or responsible
for, the administration and servicing of Mortgage Loans, whose name and
specimen
signature appear on a list of Servicing Officers furnished by the Servicer
or
the Master Servicer, to the Trustee, the Master Servicer (in the case
of the
Servicer), the Securities Administrator and the Depositor on the Closing
Date,
as such list may from time to time be amended.
“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 Servicer or a successor
to
the Servicer (including the Master Servicer) and distributed pursuant
to Section
5.01 of this Agreement on or before such date of determination, (ii)
all
Principal Prepayments received after the Cut-off Date, to the extent
distributed
pursuant to Section 5.01 of this Agreement on or before such date of
determination, (iii) all Liquidation Proceeds and Insurance Proceeds
applied by
the Servicer as recoveries of principal in accordance with the provisions
of
Section 3.13 of this Agreement, to the extent distributed pursuant to
Section
5.01 of this Agreement on or before such date of determination, and (iv)
any
Realized Loss incurred with respect thereto as a result of a Deficient
Valuation
made during or prior to the Prepayment Period for the most recent Distribution
Date coinciding with or preceding such date of determination; and (b)
as of any
date of determination coinciding with or subsequent to the Distribution
Date on
which the proceeds, if any, of a Liquidation Event with respect to such
Mortgage
Loan would be distributed, zero. With respect to any REO Property: (a)
as of any
date of determination up to but not including the Distribution Date on
which the
proceeds, if any, of a Liquidation Event with respect to such REO Property
would
be distributed, an amount (not less than zero) equal to the Stated Principal
Balance of the related Mortgage Loan as of the date on which such REO
Property
was acquired on behalf of REMIC I, minus the sum of (i) if such REO Property
was
acquired before the Distribution Date in any calendar month, the principal
portion of the Monthly Payment due on the Due Date in the calendar month
of
acquisition, to the extent advanced by the Servicer or a successor to
the
Servicer (including the Master Servicer) and distributed pursuant to
Section
5.01 of this Agreement, on or before such date of determination and (ii)
the
aggregate amount of REO Principal Amortization in respect of such REO
Property
for all previously ended calendar months, to the extent distributed pursuant
to
Section 4.01 of this Agreement on or before such date of determination;
and (b)
as of any date of determination coinciding with or subsequent to the
Distribution Date on which the proceeds, if any, of a Liquidation Event
with
respect to such REO Property would be distributed, zero.
“Stepdown
Date”:
The earlier to occur of (i) the later to occur of (a) the Distribution
Date
occurring in February 2009 and (b) 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 42.40% and (ii) the
first
Distribution Date on which the aggregate Certificate Principal Balance
of the
Class A Certificates has been reduced to zero.
“Subcontractor”:
As defined in Section 3.02 of this Agreement.
“Subordinate
Certificates”:
Collectively, the Mezzanine Certificates and the Class CE
Certificates.
“Subsequent
Recoveries”:
As of any Distribution Date, amounts received during the related Prepayment
Period by the 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.
“Sub-Servicer”:
Means any Person that (i) is considered to be a Servicing Function Participant,
(ii) services Mortgage Loans on behalf of the Servicer, the Master Servicer,
the
Securities Administrator, the Trustee or any Custodian and (iii) is responsible
for the performance (whether directly or through sub-servicers or
Subcontractors) of Servicing functions required to be performed under
this
Agreement or any related Sub-Servicing Agreement that is identified in
Item
1122(d) of Regulation AB.
“Sub-Servicing
Agreement”:
The written contract between the Servicer and a Sub-Servicer relating
to
servicing and administration of certain Mortgage Loans as provided in
Section
3.02 of this Agreement.
“Substitution
Shortfall Amount”:
As defined in Section 2.03.
“Supplemental
Interest Trust”:
The corpus of a trust created pursuant to Section 5.07 of this Agreement
and designated as the “Supplemental Interest Trust,” consisting of the Swap
Agreement, the Class IO Interest and the right to receive payments in
respect of
the Class IO Distribution Amount. For the avoidance of doubt, the Supplemental
Interest Trust does not constitute a part of the Trust Fund.
“Swap
Agreement”:
The Interest Rate Swap Agreement, dated as of January 30, 2006, between
HSBC Bank USA, National Association, as trustee on behalf of the Supplemental
Interest Trust, and the Swap Provider, which agreement provides for Net
Swap
Payments and Swap Termination Payments to be paid, as provided therein,
together
with any schedules, confirmations or other agreements relating thereto.
A copy
of the Swap Agreement is attached hereto as Exhibit I.
“Swap
LIBOR”:
LIBOR as determined pursuant to the Swap Agreement.
“Swap
Notional Amount”:
For each calculation period as defined in the Swap Agreement, the amount
set
forth below:
|
From
and including:
|
To
but excluding:
|
Swap Notional Amount: | |||||
|
1/30/2006
|
2/25/2006
|
$
|
493,170,820.66
|
||||
|
2/25/2006
|
3/25/2006
|
$
|
483,835,599.99
|
||||
|
3/25/2006
|
4/25/2006
|
$
|
473,180,426.09
|
||||
|
4/25/2006
|
5/25/2006
|
$
|
461,243,495.38
|
||||
|
5/25/2006
|
6/25/2006
|
$
|
448,074,867.45
|
||||
|
6/25/2006
|
7/25/2006
|
$
|
433,738,140.19
|
||||
|
7/25/2006
|
8/25/2006
|
$
|
418,338,956.35
|
||||
|
8/25/2006
|
9/25/2006
|
$
|
402,007,921.51
|
||||
|
9/25/2006
|
10/25/2006
|
$
|
385,140,827.31
|
||||
|
10/25/2006
|
11/25/2006
|
$
|
368,966,512.53
|
||||
|
11/25/2006
|
12/25/2006
|
$
|
353,472,178.12
|
||||
|
12/25/2006
|
1/25/2007
|
$
|
338,629,343.24
|
||||
|
1/25/2007
|
2/25/2007
|
$
|
324,410,581.53
|
||||
|
2/25/2007
|
3/25/2007
|
$
|
310,789,622.49
|
||||
|
3/25/2007
|
4/25/2007
|
$
|
297,741,302.63
|
||||
|
4/25/2007
|
5/25/2007
|
$
|
285,233,673.14
|
||||
|
5/25/2007
|
6/25/2007
|
$
|
273,195,799.14
|
||||
|
6/25/2007
|
7/25/2007
|
$
|
261,019,481.54
|
||||
|
7/25/2007
|
8/25/2007
|
$
|
249,021,222.28
|
||||
|
8/25/2007
|
9/25/2007
|
$
|
232,405,131.39
|
||||
|
9/25/2007
|
10/25/2007
|
$
|
195,026,717.76
|
||||
|
10/25/2007
|
11/25/2007
|
$
|
164,077,802.44
|
||||
|
11/25/2007
|
12/25/2007
|
$
|
138,624,822.44
|
||||
|
12/25/2007
|
1/25/2008
|
$
|
119,843,370.76
|
||||
|
1/25/2008
|
2/25/2008
|
$
|
114,088,521.80
|
||||
|
2/25/2008
|
3/25/2008
|
$
|
108,756,918.50
|
||||
|
3/25/2008
|
4/25/2008
|
$
|
103,676,905.52
|
||||
|
4/25/2008
|
5/25/2008
|
$
|
98,836,538.26
|
||||
|
5/25/2008
|
6/25/2008
|
$
|
94,224,399.96
|
||||
|
6/25/2008
|
7/25/2008
|
$
|
89,829,657.28
|
||||
|
7/25/2008
|
8/25/2008
|
$
|
85,642,003.43
|
||||
|
8/25/2008
|
9/25/2008
|
$
|
81,651,573.18
|
||||
|
9/25/2008
|
10/25/2008
|
$
|
77,849,272.99
|
||||
|
10/25/2008
|
11/25/2008
|
$
|
74,226,505.09
|
||||
|
11/25/2008
|
12/25/2008
|
$
|
70,774,107.29
|
||||
|
12/25/2008
|
1/25/2009
|
$
|
67,483,990.83
|
||||
|
1/25/2009
|
2/25/2009
|
$
|
64,348,465.22
|
||||
|
2/25/2009
|
3/25/2009
|
$
|
61,360,199.25
|
||||
|
3/25/2009
|
4/25/2009
|
$
|
58,512,216.56
|
||||
|
4/25/2009
|
5/25/2009
|
$
|
55,797,892.91
|
||||
|
5/25/2009
|
6/25/2009
|
$
|
53,210,879.95
|
||||
|
6/25/2009
|
7/25/2009
|
$
|
50,745,152.52
|
||||
“Swap
Provider”:
The swap provider under the Swap Agreement either (a) entitled to receive
payments from the Supplemental Interest Trust or (b) required to make
payments
to the Supplemental Interest Trust, in either case pursuant to the terms
of the
Swap Agreement, and any successor in interest or assign. Initially, the
Swap
Provider shall be Deutsche Bank AG New York Branch.
“Swap
Provider Trigger Event”:
A Swap Provider Trigger Event shall have occurred if any of the following
has
occurred: (i) an Event of Default under the Swap Agreement with respect
to which
the Swap Provider is a Defaulting Party (as defined in the Swap Agreement),
(ii)
a Termination Event under the Swap Agreement with respect to which the
Swap
Provider is the sole Affected Party (as defined in the Swap Agreement)
or (iii)
an Additional Termination Event under the Swap Agreement with respect
to which
the Swap Provider is the sole Affected Party.
“Swap
Termination Payment”:
Upon the designation of an “Early Termination Date” as defined in the Swap
Agreement, the payment to be made by the Supplemental Interest Trust
to the Swap
Provider, or by the Swap Provider to the Supplemental Interest Trust,
as
applicable, pursuant to the terms of the Swap Agreement.
“Tax
Returns”:
The federal income tax return on Internal Revenue Service Form 1066,
U.S. Real
Estate Mortgage Investment Conduit Income Tax Return, including Schedule
Q
thereto, Quarterly Notice to Residual Interest Holders of REMIC Taxable
Income
or Net Loss Allocation, or any successor forms, to be filed on behalf
of the
Trust REMICs under the REMIC Provisions, together with any and all other
information reports or returns that may be required to be furnished to
the
Certificateholders or filed with the Internal Revenue Service or any
other
governmental taxing authority under any applicable provisions of federal,
state
or local tax laws.
“Telerate
Page 3750”:
The display designated as page “3750” on the Dow Xxxxx 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.
“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 39.00% 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
|
|
|
February
2008 to January 2009
|
1.90%
plus 1/12 of 1.10% for each month thereafter
|
|
|
February
2009 to January 2010
|
3.00%
plus 1/12 of 1.00% for each month thereafter
|
|
|
February
2010 to January 2011
|
4.00%
plus 1/12 of 0.75% for each month thereafter
|
|
|
February
2011 to January 2012
|
4.75%
plus 1/12 of 0.15% for each month thereafter
|
|
|
February
2012 and thereafter
|
4.90%
|
“Trust”:
ACE Securities Corp., Home Equity Loan Trust, Series 2006-ASAP1, 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 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 and the Uncertificated Balance of
REMIC II
Regular Interest ZZ shall be increased by interest deferrals as provided
in
Section 5.01. 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 3.23 or Section 4.18 of this Agreement and
(b) the
aggregate amount of any Relief Act Interest Shortfall, if any allocated,
in each
case, to such REMIC Regular Interest or REMIC Regular Interest pursuant
to
Section 1.02. 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.
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-42-A and II-1-A through II-42-A
|
|
|
2
|
I-2-A
through I-42-A and II-2-A through II-42-A
|
|
|
3
|
I-3-A
through I-42-A and II-3-A through II-42-A
|
|
|
4
|
I-4-A
through I-42-A and II-4-A through II-42-A
|
|
|
5
|
I-5-A
through I-42-A and II-5-A through II-42-A
|
|
|
6
|
I-6-A
through I-42-A and II-6-A through II-42-A
|
|
|
7
|
I-7-A
through I-42-A and II-7-A through II-42-A
|
|
|
8
|
I-8-A
through I-42-A and II-8-A through II-42-A
|
|
|
9
|
I-9-A
through I-42-A and II-9-A through II-42-A
|
|
|
10
|
I-10-A
through I-42-A and II-10-A through II-42-A
|
|
|
11
|
I-11-A
through I-42-A and II-11-A through II-42-A
|
|
|
12
|
I-12-A
through I-42-A and II-12-A through II-42-A
|
|
|
13
|
I-13-A
through I-42-A and II-13-A through II-42-A
|
|
|
14
|
I-14-A
through I-42-A and II-14-A through II-42-A
|
|
|
15
|
I-15-A
through I-42-A and II-15-A through II-42-A
|
|
|
16
|
I-16-A
through I-42-A and II-16-A through II-42-A
|
|
|
17
|
I-17-A
through I-42-A and II-17-A through II-42-A
|
|
|
18
|
I-18-A
through I-42-A and II-18-A through II-42-A
|
|
|
19
|
I-19-A
through I-42-A and II-19-A through II-42-A
|
|
|
20
|
I-20-A
through I-42-A and II-20-A through II-42-A
|
|
|
21
|
I-21-A
through I-42-A and II-21-A through II-42-A
|
|
|
22
|
I-22-A
through I-42-A and II-22-A through II-42-A
|
|
|
23
|
I-23-A
through I-42-A and II-23-A through II-42-A
|
|
|
24
|
I-24-A
through I-42-A and II-24-A through II-42-A
|
|
|
25
|
I-25-A
through I-42-A and II-25-A through II-42-A
|
|
|
26
|
I-26-A
through I-42-A and II-26-A through II-42-A
|
|
|
27
|
I-27-A
through I-42-A and II-27-A through II-42-A
|
|
|
28
|
I-28-A
through I-42-A and II-28-A through II-42-A
|
|
|
29
|
I-29-A
through I-42-A and II-29-A through II-42-A
|
|
|
30
|
I-30-A
through I-42-A and II-30-A through II-42-A
|
|
|
31
|
I-31-A
through I-42-A and II-31-A through II-42-A
|
|
|
32
|
I-32-A
through I-42-A and II-32-A through II-42-A
|
|
|
33
|
I-33-A
through I-42-A and II-33-A through II-42-A
|
|
|
34
|
I-34-A
through I-42-A and II-34-A through II-42-A
|
|
|
35
|
I-35-A
through I-42-A and II-35-A through II-42-A
|
|
|
36
|
I-36-A
through I-42-A and II-36-A through II-42-A
|
|
|
37
|
I-37-A
through I-42-A and II-37-A through II-42-A
|
|
|
38
|
I-38-A
through I-42-A and II-38-A through II-42-A
|
|
|
39
|
I-39-A
through I-42-A and II-39-A through II-42-A
|
|
|
40
|
I-40-A
through I-42-A and II-40-A through II-42-A
|
|
|
41
|
I-41-A
through I-42-A and II-41-A through II-42-A
|
|
|
42
|
I-42-A
and II-42-A
|
|
|
thereafter
|
$0.00
|
With
respect to the Class IO Interest and any Distribution Date, an amount
equal to
the Uncertificated Notional Amount of the REMIC II 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.
“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 Xxxxxx Mae and Xxxxxxx
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 Xxxxxx
Mae and
Xxxxxxx 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 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 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 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.
“Xxxxx
Fargo”:
Xxxxx Fargo Bank, National Association, or any successor thereto.
“Xxxxx
Fargo Custodial Agreement”:
The Custodial Agreement dated as of January 1, 2006, among the Trustee,
Xxxxx
Fargo and the Servicer, as may be amended or supplemented from time to
time.
SECTION
1.02. Allocation
of Certain Interest Shortfalls.
For
purposes of calculating the amount of Accrued Certificate Interest and
the
amount of the Interest Distribution Amount for the Class A Certificates,
the
Mezzanine Certificates and the Class CE Certificates for any Distribution
Date,
(1) the aggregate amount of any Prepayment Interest Shortfalls (to the
extent
not covered by payments by the Servicer pursuant to Section 3.23 of this
Agreement or by the Master Servicer pursuant to Section 4.18 of this
Agreement)
and any Relief Act Interest Shortfalls incurred in respect of the Mortgage
Loans
for any Distribution Date shall be allocated first, to the Class CE
Certificates, second, to the Class M-11 Certificates, third, to the Class
M-10
Certificates, fourth, to the Class M-9 Certificates, fifth, to the Class
M-8
Certificates, sixth, to the Class M-7 Certificates, seventh, to the Class
M-6
Certificates, eighth, to the Class M-5 Certificates, ninth, to the Class
M-4
Certificates, tenth, to the Class M-3 Certificates, eleventh, to the
Class M-2
Certificates, twelfth, to the Class M-1 Certificates and thirteenth,
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 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 I Regular Interests for any Distribution Date, the aggregate amount
of any
Prepayment Interest Shortfalls (to the extent not covered by payments
by the
Servicer pursuant to Section 3.23 of this Agreement or the Master Servicer
pursuant to Section 4.18) and any Relief Act Interest Shortfalls incurred
in
respect of Group I Mortgage Loans shall be allocated first, to the REMIC
I Group
I Regular Interests ending with the designation “B”, pro
rata
based on, and to the extent of, one month’s interest at the then applicable
respective REMIC I Remittance Rates on the respective Uncertificated
Principal
Balances of each such REMIC I Regular Interest, and then, to REMIC I
Group I
Regular Interests ending with the designation “A”, pro rata based on, and to the
extent of, one month’s interest at the then applicable respective REMIC I
Remittance Rates on the respective Uncertificated Balances of each such
REMIC I
Regular Interest.
For
purposes of calculating the amount of Uncertificated Interest for the
REMIC 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
Servicer pursuant to Section 3.23 of this Agreement or the Master Servicer
pursuant to Section 4.18) and any Relief Act Interest Shortfalls incurred
in
respect of Group II Mortgage Loans shall be allocated first, 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 Servicer
pursuant to Section 3.23 of this Agreement or the Master Servicer pursuant
to
Section 4.18 or) 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-1, 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 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 Servicer
pursuant to Section 3.23 of this Agreement or by the Master Servicer
pursuant to
Section 4.18 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 I-SUB, REMIC II Regular Interest
I-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 (including, without limitation the right
to
enforce the obligations of the other parties thereto thereunder), the
right to
any Net Swap Payment and any Swap Termination Payment made by the Swap
Provider,
and all other assets included or to be included in REMIC I. Such assignment
includes all interest and principal received by the Depositor and the
Servicer
on or with respect to the Mortgage Loans (other than payments of principal
and
interest due on such Mortgage Loans on or before the Cut-off Date). The
Depositor herewith delivers to the Trustee an executed copy of the Mortgage
Loan
Purchase Agreement.
In
connection with such transfer and assignment, the Depositor does hereby
deliver
to, and deposit with the related Custodian pursuant to the related Custodial
Agreement the documents with respect to each Mortgage Loan as described
under
Section 2 of the Custodial Agreements (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, the Servicer and
the
Sponsor certifications (in the forms attached to the Custodial Agreements)
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, 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
Servicer copies of all trailing documents required to be included in
the
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 Servicer shall not be responsible for any custodian
fees
or other costs incurred in obtaining such documents and the Depositor
shall
cause the Servicer to be reimbursed for any such costs the Servicer may
incur in
connection with performing its obligations under this Agreement.
The
Mortgage Loans permitted by the terms of this Agreement to be included
in the
Trust are limited to (i) Mortgage Loans (which the Depositor acquired
pursuant
to the Mortgage Loan Purchase Agreement, which contains, among other
representations and warranties, a representation and warranty of the
Sponsor
that no Mortgage Loan is a “High-Cost Home Loan” as defined in the New Jersey
Home Ownership Act effective November 27, 2003 or as defined in the New
Mexico
Home Loan Protection Act effective January 1, 2004, as defined in the
Massachusetts Predatory Home Loan Practices Act, effective November 7,
2004
(Mass. Xxx. Laws Ch. 183C) or as defined in the Indiana Home Loan Practices
Act,
effective January 1, 2005 (Ind. Code Xxx. Sections 24-9-1 through 24-9-9))
and
(ii) Qualified Substitute Mortgage Loans (which, by definition as set
forth
herein and referred to in the Mortgage Loan Purchase Agreement, are required
to
conform to, among other representations and warranties, the representation
and
warranty of the Sponsor that no Qualified Substitute Mortgage Loan is
a
“High-Cost Home Loan” as defined in the New Jersey Home Ownership Act effective
November 27, 2003 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. Xxx. Laws Ch. 183C)
or as
defined in the Indiana Home Loan Practices Act, effective January 1,
2005 (Ind.
Code Xxx. Sections 24-9-1 through 24-9-9). The Depositor and the Trustee
on
behalf of the Trust 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. Xxx. Laws Ch. 183C) or as defined in the Indiana
Home
Loan Practices Act, effective January 1, 2005 (Ind. Code Xxx. Sections
24-9-1
through 24-9-9).
SECTION
2.02. Acceptance
of REMIC I by Trustee.
The
Trustee acknowledges receipt, subject to the provisions of Section 2.01
hereof
and Section 2 of the related Custodial Agreement, of the Mortgage Loan
Documents
and all other assets included in the definition of “REMIC I” under clauses (i),
(iii), (iv) and (v) (to the extent of amounts deposited into the Distribution
Account) and declares that it holds (or the applicable Custodian on its
behalf
holds) and will hold such documents and the other documents delivered
to it
constituting a Mortgage Loan Document, and that it holds (or the applicable
Custodian on its behalf holds) or will hold all such assets and such
other
assets included in the definition of “REMIC I” in trust for the exclusive use
and benefit of all present and future Certificateholders.
SECTION
2.03. Repurchase
or Substitution of Mortgage Loans.
(a) Upon
discovery or receipt of notice of any materially defective document in,
or that
a document is missing from, a Mortgage File or of a breach by the Sponsor
of any
representation, warranty or covenant under the Mortgage Loan Purchase
Agreement
in respect of any Mortgage Loan that materially and adversely affects
the value
of such Mortgage Loan or the interest therein of the Certificateholders,
the
Trustee shall promptly notify the Sponsor and the 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 Servicer for deposit
in the
Collection Account and the Trustee, upon receipt of written certification
from
the Servicer of such deposit, shall release or cause the applicable Custodian
(upon receipt of a request for release in the form attached to the related
Custodial Agreement) to release to the Sponsor the related Mortgage File
and the
Trustee shall execute and deliver such instruments of transfer or assignment,
in
each case without recourse, representation or warranty, as the Sponsor
shall
furnish to it and as shall be necessary to vest in the Sponsor any Mortgage
Loan
released pursuant hereto, and the Trustee shall not have any further
responsibility with regard to such Mortgage File. In lieu of repurchasing
any
such Mortgage Loan as provided above, if so provided in the Mortgage
Loan
Purchase Agreement, the Sponsor may cause such Mortgage Loan to be removed
from
REMIC I (in which case it shall become a Deleted Mortgage Loan) and substitute
one or more Qualified Substitute Mortgage Loans in the manner and subject
to the
limitations set forth in Section 2.03(b). It is understood and agreed
that the
obligation of the Sponsor to cure or to repurchase (or to substitute
for) any
Mortgage Loan as to which a document is missing, a material defect in
a
constituent document exists or as to which such a breach has occurred
and is
continuing shall constitute the sole remedy respecting such omission,
defect or
breach available to the Trustee and the Certificateholders. Notwithstanding
anything to the contrary contained herein, any breach of a representation
or
warranty contained in clauses (xxxiv), (xxxviii), (xxxix), (xl), (xli),
(xlvi),
(xlvii) and/or (lvi) of Section 6 of the Mortgage Loan Purchase Agreement
shall
be automatically deemed to affect materially and adversely the interests
of the
Certificateholders.
In
addition, promptly upon the earlier of discovery by the Servicer or receipt
of
notice by the 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, the 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) 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 Custodial Agreements, 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 Servicer, with respect to such Qualified Substitute Mortgage Loan
or Loans,
an initial certification pursuant to the Custodial Agreements, 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 Servicer a final certification pursuant
to
the 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 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 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 Servicer for deposit in the 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 related Custodial Agreement
and
certification by the Servicer of such deposit, shall release to the Sponsor
the
related Mortgage File or Files and the Trustee shall execute and deliver
such
instruments of transfer or assignment, in each case without recourse,
representation or warranty, as the Sponsor shall deliver to it and as
shall be
necessary to vest therein any Deleted Mortgage Loan released pursuant
hereto.
In
addition, the Sponsor shall obtain at its own expense and deliver to
the Trustee
an Opinion of Counsel to the effect that such substitution will not cause
(a)
any federal tax to be imposed on any Trust REMIC, including without limitation,
any federal tax imposed on “prohibited transactions” under Section 860F(a)(1) of
the Code or on “contributions after the startup date” under Section 860G(d)(1)
of the Code, or (b) any Trust REMIC to fail to qualify as a REMIC at
any time
that any Certificate is outstanding.
(c) Upon
discovery by the Depositor, the Sponsor, the 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). The Trustee shall reconvey to the Sponsor the Mortgage
Loan to
be released pursuant hereto in the same manner, and on the same terms
and
conditions, as it would a Mortgage Loan repurchased for breach of a
representation or warranty.
(d) With
respect to a breach of the representations made pursuant to Section 5(xii)
of
the Mortgage Loan Purchase Agreement that materially and adversely affects
the
value of such Mortgage Loan or the interest therein of the Certificateholders,
the Sponsor shall be required to take the actions set forth in this Section
2.03.
(e) Within
ninety (90) days of the earlier of discovery by the Servicer or receipt
of
notice by the Servicer of the breach of any representation, warranty
or covenant
of the Servicer set forth in Section 2.05 which materially and adversely
affects
the interests of the Certificateholders in any Mortgage Loan or Prepayment
Charge, the 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 Servicer,
the
Depositor and the Trustee, for the benefit of each of the Trustee and
the
Certificateholders, that as of the Closing Date or as of such date specifically
provided herein:
(i) The
Master Servicer is a national banking association duly formed, validly
existing
and in good standing under the laws of the United States of America and
is duly
authorized and qualified to transact any and all business contemplated
by this
Agreement to be conducted by the Master Servicer;
(ii) The
Master Servicer has the full power and authority to conduct its business
as
presently conducted by it and to execute, deliver and perform, and to
enter into
and consummate, all transactions contemplated by this Agreement. The
Master
Servicer has duly authorized the execution, delivery and performance
of this
Agreement, has duly executed and delivered this Agreement, and this Agreement,
assuming due authorization, execution and delivery by the other parties
hereto,
constitutes a legal, valid and binding obligation of the Master Servicer,
enforceable against it in accordance with its terms except as the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization or similar
laws
affecting the enforcement of creditors’ rights generally and by general
principles of equity;
(iii) The
execution and delivery of this Agreement by the Master Servicer, the
consummation by the Master Servicer of any other of the transactions
herein
contemplated, and the fulfillment of or compliance with the terms hereof
are in
the ordinary course of business of the Master Servicer and will not (A)
result
in a breach of any term or provision of 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 the Servicer.
(a) The
Servicer hereby represents, warrants and covenants to the Master Servicer,
the
Securities Administrator, the Depositor and the Trustee, for the benefit
of each
of such Persons and the Certificateholders that as of the Closing Date
or as of
such date specifically provided herein:
(i) The
Servicer is a corporation duly organized and validly existing under the
laws of
the jurisdiction of its incorporation, and is duly authorized and qualified
to
transact any and all business contemplated by this Agreement to be conducted
by
the Servicer in any state in which a Mortgaged Property is located or
is
otherwise not required under applicable law to effect such qualification
and, in
any event, is in compliance with the doing business laws of any such
State, to
the extent necessary to ensure its ability to enforce each Mortgage Loan
and to
service the Mortgage Loans in accordance with the terms of this
Agreement;
(ii) The
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 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 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 Servicer, the servicing
of the
Mortgage Loans by the Servicer hereunder, the consummation by the 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
Servicer and will not (A) result in a breach of any term or provision
of the
charter or by-laws of the 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 Servicer is a party
or by
which it may be bound, or any statute, order or regulation applicable
to the
Servicer of any court, regulatory body, administrative agency or governmental
body having jurisdiction over the Servicer; and the 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
Servicer's knowledge, would in the future materially and adversely affect,
(x)
the ability of the Servicer to perform its obligations under this Agreement,
(y)
the business, operations, financial condition, properties or assets of
the
Servicer taken as a whole or (z) the legality, validity or enforceability
of
this Agreement;
(iv) The
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 Servicer that would materially and
adversely
affect the execution, delivery or enforceability of this Agreement or
the
ability of the Servicer to service the 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, the
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
Servicer 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 the Servicer
of,
or compliance by the 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;
(viii) The
Servicer 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) The
Servicer is a member of MERS in good standing, and will comply in all
material
respects with the rules and procedures of MERS in connection with the
servicing
of the Mortgage Loans that are registered with MERS; and
(x) The
Servicer will not waive any Prepayment Charge other than in accordance
with the
standard set forth in Section 3.01.
(b) Notwithstanding
anything to the contrary contained in this Agreement, if the covenant
of the
Servicer set forth in Section 2.05(a)(x) above is breached, the 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 Collection Account within
90
days of the earlier of discovery by the Servicer or receipt of notice
by the
Servicer of such breach. Furthermore, notwithstanding any other provisions
of
this Agreement, any payments made by the 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 related Custodian and shall inure to the benefit
of the
Trustee, the Master Servicer, the Securities Administrator, the Depositor,
the
Certificateholders. Upon discovery by any such Person or the Servicer
of a
breach of any of the foregoing representations, warranties and covenants
which
materially and adversely affects the value of any Mortgage Loan, Prepayment
Charge or the interests therein of the Certificateholders, the party
discovering
such breach shall give prompt written notice (but in no event later than
two (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 Servicer set forth in Section 2.03(e) to cure breaches
shall
constitute the sole remedy against the Servicer available to the
Certificateholders, the Depositor or the Trustee on behalf of the
Certificateholders respecting a breach of the representations, warranties
and
covenants contained in this Section 2.05.
SECTION
2.06. Issuance
of the REMIC I Regular Interests and the Class R-I Interest.
The
Trustee acknowledges the assignment to it of the Mortgage Loans and the
delivery
to the 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 related 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 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-ASAP1” and does hereby appoint HSBC Bank USA, National Association as
Trustee in accordance with the provisions of this Agreement.
SECTION
2.10. Purpose
and Powers of the Trust.
The
purpose of the common law trust, as created hereunder, is to engage in
the
following activities:
(a) acquire
and hold the Mortgage Loans and the other assets of the Trust Fund and
the
proceeds therefrom;
(b) to
issue the Certificates sold to the Depositor in exchange for the Mortgage
Loans;
(c) to
make payments on the Certificates;
(d) to
engage in those activities that are necessary, suitable or convenient
to
accomplish the foregoing or are incidental thereto or connected therewith;
and
(e) subject
to compliance with this Agreement, to engage in such other activities
as may be
required in connection with conservation of the Trust Fund and the making
of
distributions to the Certificateholders.
The
trust is hereby authorized to engage in the foregoing activities. The
Trustee
shall not cause the trust to engage in any activity other than in connection
with the foregoing or other than as required or authorized by the terms
of this
Agreement while any Certificate is outstanding, and this Section 2.10
may not be
amended, without the consent of the Certificateholders evidencing 51%
or more of
the aggregate voting rights of the Certificates.
ARTICLE
III
ADMINISTRATION
AND SERVICING
OF
THE MORTGAGE LOANS; ACCOUNTS
SECTION
3.01. The
Servicer to Act as Servicer.
On
and after the Closing Date, the Servicer shall service and administer
the
Mortgage Loans on behalf of the Trust Fund and in the best interests
of and for
the benefit of the Certificateholders (as determined by the Servicer
in its
reasonable judgment) in accordance with the terms of this Agreement and
the
respective Mortgage Loans and all applicable laws 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 Servicer or any Affiliate of the Servicer may have
with
the related Mortgagor;
(ii) the
ownership of any Certificate by the Servicer or any Affiliate of the
Servicer;
(iii) the
Servicer’s obligation to make P&I Advances or Servicing Advances;
or
(iv) the
Servicer’s right to receive compensation for its services
hereunder.
To
the extent consistent with the foregoing, the Servicer shall also seek
to
maximize the timely and complete recovery of principal and interest on
the
Mortgage Notes and shall waive (or permit a Sub-Servicer to waive) a
Prepayment
Charge only under the following circumstances: (i) such waiver is standard
and
customary in servicing similar Mortgage Loans and such waiver is related
to a
default or reasonably foreseeable default and would, in the reasonable
judgment
of the 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 Servicer, such Servicer shall not have any
liability
or obligation with respect to such difference, and in addition shall
not have
any liability or obligation to pay the amount of any uncollected Prepayment
Charge if the failure to collect such amount is the direct result of
inaccurate
or incomplete information on the Prepayment Charge Schedule.
Subject
only to the above-described servicing standards (the “Accepted Servicing
Practices”) and the terms of this Agreement and of the related Mortgage Loans,
the 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, the Servicer
in its own
name is hereby authorized and empowered by the Trustee when the Servicer
believes it appropriate in its best judgment, to execute and deliver,
on behalf
of the Trust Fund, the Certificateholders and the Trustee or any of them,
and
upon written notice to the Trustee, any and all instruments of satisfaction
or
cancellation, or of partial or full release or discharge or subordination,
and
all other comparable instruments, with respect to the related Mortgage
Loans and
the related Mortgaged Properties and to institute foreclosure proceedings
or
obtain a deed-in-lieu of foreclosure so as to convert the ownership of
such
properties, and to hold or cause to be held title to such properties,
on behalf
of the Trustee, for the benefit of the Trust Fund and the Certificateholders.
The 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. The 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
the Servicer, and furnish to the Servicer a power of attorney in the
form of
Exhibit D hereto and other documents necessary or appropriate to enable
the
Servicer to carry out its servicing and administrative duties hereunder
and
furnished to the Trustee by the Servicer, and the Trustee shall not be
liable
for the actions of the Servicer under such powers of attorney and shall
be
indemnified by the Servicer for any cost, liability or expense incurred
by the
Trustee in connection with the Servicer’s use or misuse of any such power of
attorney.
In
accordance with Accepted Servicing Practices, the 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, and further as
provided in Section 3.09; provided, however, the 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. Any cost incurred by the 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 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 Servicer after the Cut-off Date, as applicable,
(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 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, the Servicer may not make
any future
advances with respect to a Mortgage Loan and the Servicer shall not 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, the
related
Mortgagor is in default with respect to the related Mortgage Loan or
such
default is, in the judgment of the 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
Servicer to waive the Trustee’s right or option to arbitrate disputes and to
send written notice of such waiver to the Mortgagor, although the Mortgagor
may
still require arbitration at its option.
From
and after the Closing Date, the 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 the Servicer and Sub-Servicers.
(a) The
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 3.20 hereof), to the same extent
as if
such Sub-Servicer were the related Servicer. The 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
Sarbanes Oxley 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 Xxxxxxx
Mac or Xxxxxx Xxx approved mortgage servicer. Notwithstanding the provisions
of
any Sub-Servicing Agreement, any of the provisions of this Agreement
relating to
agreements or arrangements between the 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 the Servicer alone were servicing
and
administering the Mortgage Loans. Every Sub-Servicing Agreement entered
into by
the 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 the Servicer.
(b) Notwithstanding
the foregoing, the Servicer shall be entitled to outsource one or more
separate
servicing functions to a Person (each, an “Subcontractor”) that does not meet
the eligibility requirements for a Sub-Servicer, so long as such outsourcing
does not constitute the delegation of the Servicer’s obligation to perform all
or substantially all of the servicing of the related Mortgage Loans to
such
Subcontractor. The Servicer shall promptly, upon request, provide to
the Master
Servicer, the Trustee and the Depositor a written description (in form
and
substance satisfactory to the Master Servicer, the Trustee and the Depositor)
of
the role and function of each Subcontractor utilized by the 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. The use by the Servicer of any such Subcontractor shall
not
release the Servicer from any of its obligations hereunder and the Servicer
shall remain responsible hereunder for all acts and omissions of such
Subcontractor as fully as if such acts and omissions were those of the
Servicer,
and the Servicer shall pay all fees and expenses of the Subcontractor
from the
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 Servicer shall cause any such Subcontractor used by
the
Servicer for the benefit of the Master Servicer, the Trustee and the
Depositor
to comply with the provisions of Sections 3.17, 3.18 and 3.20 of this
Agreement
to the same extent as if such Subcontractor were the Servicer. The Servicer
shall be responsible for obtaining from each Subcontractor and delivering
to the
Master Servicer, the Trustee and any Depositor any assessment of compliance,
attestation report and Xxxxxxxx-Xxxxx related certification required
to be
delivered by such Subcontractor under Section 3.17, 3.18 and 3.20, in
each case
as and when required to be delivered.
(d) For
purposes of this Agreement, the Servicer shall be deemed to have received
any
collections, recoveries or payments with respect to the Mortgage Loans
that are
received by a Sub-Servicer or Subcontractor regardless of whether such
payments
are remitted by the Sub-Servicer or Subcontractor to the Servicer.
SECTION
3.03. Successor
Sub-Servicers.
Any
Sub-Servicing Agreement shall provide that the 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
by
any successor to the Servicer (which may be the Master Servicer) without
fee, in
accordance with the terms of this Agreement, in the event that the Servicer
(or
any successor to the Servicer) shall, for any reason, no longer be the
Servicer
of the related Mortgage Loans (including termination due to a Servicer
Event of
Default).
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 the Subcontractor, as applicable,
shall be deemed to be between the Sub-Servicer or Subcontractor, as applicable,
and the Servicer alone and the Master Servicer, Trustee and the
Certificateholders shall not be deemed parties thereto and shall have
no claims,
rights, obligations, duties or liabilities with respect to any Sub-Servicer
or
the Subcontractor except as set forth in Section 3.05.
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 the Servicer hereunder by a
successor
servicer (which may be the Master Servicer) pursuant to Section 8.02,
it is
understood and agreed that the Servicer’s rights and obligations under any
Sub-Servicing Agreement then in force between the 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.
The
Servicer shall, upon the reasonable request of the Master Servicer, but
at its
own expense, deliver to the assuming party documents and records relating
to
each Sub-Servicing Agreement and an accounting of amounts collected and
held by
it and otherwise use its best efforts to effect the orderly and efficient
transfer of the Sub-Servicing Agreements to the assuming party.
The
Servicing Fee payable to any such successor servicer shall be payable
from
payments received on the Mortgage Loans in the amount and in the manner
set
forth in this Agreement.
SECTION
3.06. Collection
of Certain Mortgage Loan Payments.
The
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, the 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
Servicer,
such default is reasonably foreseeable, the Servicer, consistent with
Accepted
Servicing Practices may waive, modify or vary any term of such Mortgage
Loan
(including modifications that change the Mortgage Rate, forgive the payment
of
principal or interest or extend the final maturity date of such Mortgage
Loan),
accept payment from the related Mortgagor of an amount less than the
Stated
Principal Balance in final satisfaction of such Mortgage Loan, or consent
to the
postponement of strict compliance with any such term or otherwise grant
indulgence to any Mortgagor if in the Servicer’s determination such waiver,
modification, postponement or indulgence is not materially adverse to
the
interests of the Certificateholders (taking into account any estimated
Realized
Loss that might result absent such action).
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 Servicer
shall establish and maintain one or more accounts (the “Servicing Accounts”),
into which all collections from the Mortgagors (or related advances from
Sub-Servicers) for the payment of taxes, assessments, fire, flood, and
hazard
insurance premiums, and comparable items for the account of the Mortgagors
(“Escrow Payments”) shall be deposited and retained. Servicing Accounts shall be
Eligible Accounts. The 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 Business Day after the Servicer’s receipt thereof, all Escrow
Payments collected on account of the Mortgage Loans and shall thereafter
deposit
such Escrow Payments in the Servicing Accounts, in no event later than
the
second Business Day after the deposit of good funds into the clearing
account,
and retain therein, all Escrow Payments collected on account of the Mortgage
Loans, for the purpose of effecting the timely payment of any such items
as
required under the terms of this Agreement. Withdrawals of amounts from
a
Servicing Account may be made 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) 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 (v)
clear and terminate the Servicing Account at the termination of the Servicer’s
obligations and responsibilities in respect of the Mortgage Loans under
this
Agreement in accordance with Article X. As part of its servicing duties,
the
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
own funds,
without any reimbursement therefor. Notwithstanding the foregoing, the
Servicer
shall not be obligated to collect Escrow Payments if the related Mortgage
Loan
does not require such payments but the Servicer shall nevertheless be
obligated
to make Servicing Advances as provided in Section 3.01 and Section 3.11.
In the
event the 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, the
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 Servicer receives notice of a tax lien with respect
to the
Mortgage Loan being imposed, the Servicer shall, promptly and to the
extent
required to avoid loss of the Mortgaged Property, advance or cause to
be
advanced funds necessary to discharge such lien on the Mortgaged Property
unless
the Servicer determines the advance to be nonrecoverable. The 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
Account and Distribution Account.
(a) On
behalf of the Trust Fund, the Servicer shall establish and maintain one
or more
“Collection Accounts”, held in trust for the benefit of the Trustee and the
Certificateholders. On behalf of the Trust Fund, the 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 the Servicer’s receipt thereof, and shall thereafter deposit in the
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
Mortgage Loans;
(ii) all
payments on account of interest (net of the related Servicing Fee and
any
Prepayment Interest Excess) on each 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 Mortgage Loans;
(iv) any
amounts required to be deposited by the Servicer pursuant to Section
3.10 in
connection with any losses realized on Permitted Investments with respect
to
funds held in the Collection Account;
(v) any
amounts required to be deposited by the Servicer pursuant to the second
paragraph of Section 3.11(a) in respect of any blanket policy
deductibles;
(vi) any
Purchase Price or Substitution Shortfall Amount delivered to the Servicer
and
all proceeds (net of amounts payable or reimbursable to the Servicer,
the Master
Servicer, the Trustee, the Custodians or the Securities Administrator)
of
Mortgage Loans purchased in accordance with Section 2.03, Section 3.13
or
Section 10.01; and
(vii) any
Prepayment Charges collected by the Servicer in connection with the Principal
Prepayment of any of the Mortgage Loans or amounts required to be deposited
by
the Servicer in connection with a breach of its obligations under Section
2.05.
The
foregoing requirements for deposit in the Collection Account shall be
exclusive,
it being understood and agreed that, without limiting the generality
of the
foregoing, payments in the nature of late payment charges, assumption
fees or
other similar fees need not be deposited by the Servicer in the Collection
Account and may be retained by the Servicer as additional compensation.
In the
event the Servicer shall deposit in the Collection Account any amount
not
required to be deposited therein, it may at any time withdraw such amount
from
the Collection Account, any provision herein to the contrary
notwithstanding.
(b) On
behalf of the Trust Fund, the Securities Administrator shall establish
and
maintain one or more accounts (such account or accounts, the “Distribution
Account”), held in trust for the benefit of the Trustee, the Trust Fund and the
Certificateholders. On behalf of the Trust Fund, the Servicer shall deliver
to
the Securities Administrator in immediately available funds for deposit
in the
Distribution Account on or before 12:00 noon New York time on the Servicer
Remittance Date, that portion of the Available Distribution Amount (calculated
without regard to the references in clause (2) of the definition thereof
to
amounts that may be withdrawn from the Distribution Account) for the
related
Distribution Date then on deposit in the Collection Account and the amount
of
all Prepayment Charges collected by the Servicer in connection with the
Principal Prepayment of any of the Mortgage Loans then on deposit in
the
Collection Account and the amount of any funds reimbursable to an Advance
Financing Person pursuant to Section 3.26. 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 Servicer
shall, on or before 5:00 p.m. New York time on such Business Day, withdraw
from
the Collection Account any and all amounts payable or reimbursable to
the
Depositor, the Servicer, the Trustee, the Master Servicer, the Securities
Administrator or the Sponsor pursuant to Section 3.09 and shall pay such
amounts
to the Persons entitled thereto or shall establish a separate Collection
Account
(which shall also be an Eligible Account) and withdraw from the existing
Collection Account the amount on deposit therein in excess of $100,000
and
deposit such excess in the newly created Collection Account.
With
respect to any remittance received by the Securities Administrator after
the
Servicer Remittance Date on which such payment was due, the Securities
Administrator shall send written notice thereof to the Servicer. The
Servicer
shall pay to the Securities Administrator interest on any such late payment
by
the 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 Servicer
to the
Securities Administrator on the date such late payment is made and shall
cover
the period commencing with the day following such Servicer Remittance
Date and
ending with the Business Day on which such payment is made, both inclusive.
The
payment by the Servicer of any such interest, or the failure of the Securities
Administrator to notify the Servicer of such interest, shall not be deemed
an
extension of time for payment or a waiver of any Event of Default by
the
Servicer.
(c) Funds
in the Collection Account and funds in the Distribution Account may be
invested
in Permitted Investments in accordance with the provisions set forth
in Section
3.10. The Servicer shall give notice to the Trustee, the Securities
Administrator and the Master Servicer of the location of the Collection
Account
when established and prior to any change thereof. The Securities Administrator
shall give notice to the Servicer and the Depositor of the location of
the
Distribution Account when established and prior to any change
thereof.
(d) Funds
held in the Collection Account at any time may be delivered by the Servicer
in
immediately available funds to the Securities Administrator for deposit
in the
Distribution Account. In the event the 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 the Servicer
in
accordance with the immediately preceding sentence. In addition, the
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;
(ii) any
amounts required to be deposited pursuant to Section 3.22(d) or 3.21(f)
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; and
(iv) any
amounts required to be deposited pursuant to Section 3.23 in connection
with any
Prepayment Interest Shortfalls.
SECTION
3.09. Withdrawals
from the Collection Account and Distribution Account.
(a) The
Servicer shall, from time to time, make withdrawals from the Collection
Account
for any of the following purposes or as described in Section 5.03:
(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) or
permitted
to be so remitted pursuant to the first sentence of Section
3.08(d);
(ii) subject
to Section 3.13(d), to reimburse itself (including any successor servicer)
for
P&I Advances made by it, but only to the extent of amounts received which
represent Late Collections (net of the related Servicing Fees) of Monthly
Payments 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), to pay itself any unpaid Servicing Fees and reimburse
itself
any unreimbursed Servicing Advances with respect to each related Mortgage
Loan,
but only to the extent of any Liquidation Proceeds and Insurance Proceeds
received with respect to such related Mortgage Loan;
(iv) to
pay to itself as servicing compensation (in addition to the Servicing
Fee) on
the Servicer Remittance Date any interest or investment income earned
on funds
deposited in the 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) all amounts received thereon not included in
the
Purchase Price or the Substitution Shortfall Amount;
(vi) to
reimburse itself (including any successor to the Servicer) for
(A) any
P&I Advance or Servicing Advance previously made by it which the Servicer
has determined to be a Nonrecoverable P&I Advance or a Nonrecoverable
Servicing Advance in accordance with the provisions of Section 5.03 provided
however, that the Servicer shall not be entitled to reimbursement for
any
Servicing Advance made prior to the Cut-off Date if the Servicer determines
that
such Servicing Advance constitutes a Nonrecoverable Servicing
Advance;
(B) any
unpaid Servicing Fees to the extent not recoverable from Liquidation
Proceeds,
Insurance Proceeds or other amounts received with respect to the related
Mortgage Loan under Section 3.06(a)(iii); 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;
(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;
(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);
(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); and
(xi) to
clear and terminate the Collection Account pursuant to
Section 10.01.
The
Servicer shall keep and maintain separate accounting, on a Mortgage Loan
by
Mortgage Loan basis, for the purpose of justifying any withdrawal from
the
Collection Account, to the extent held by or on behalf of it, pursuant
to
subclauses (ii), (iii), (v), (vi), (vii), (viii), (ix) and (x)
above.
(b) The
Securities Administrator shall, from time to time, make withdrawals from
the
Distribution Account, for any of the following purposes, without
priority:
(i) to
make distributions to Certificateholders in accordance with Section
5.01;
(ii) to
pay to itself, the Custodians and the Master Servicer amounts to which
it is
entitled pursuant to Section 9.05 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;
(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);
(vi) to
pay the Master Servicing Fee to the Master Servicer;
(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.
SECTION
3.10. Investment
of Funds in the Investment Accounts.
(a) The
Servicer may direct, by means of written directions (which may be standing
directions), any depository institution maintaining the Collection Account
to
invest the funds in the 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 the 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 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 the
Collection Account shall be for the benefit of the Servicer and shall
be subject
to its withdrawal in accordance with Section 3.09. The Servicer shall
deposit in
the Collection Account 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 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 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. The 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. The 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 the
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 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 3.22, if received in respect
of an REO
Property. Any cost incurred by the 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 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 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 Xxxxxx Xxx or Xxxxxxx 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 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 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 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) The
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
Xxxxxx Mae or Xxxxxxx Mac if it were the purchaser of the related Mortgage
Loans, unless the Servicer, has obtained a waiver of such requirements
from
Xxxxxx Mae or Xxxxxxx Mac. The Servicer shall also maintain a fidelity
bond in
the form and amount that would meet the requirements of Xxxxxx Mae or
Xxxxxxx
Mac, unless the Servicer, has obtained a waiver of such requirements
from Xxxxxx
Mae or Xxxxxxx Mac. The Servicer shall be deemed to have complied with
this
provision if an Affiliate of the Servicer, has such errors and omissions
and
fidelity bond coverage and, by the terms of such insurance policy or
fidelity
bond, the coverage afforded thereunder extends to the Servicer. Any such
errors
and omissions policy and fidelity bond shall by its terms not be cancelable
without thirty (30) days’ prior written notice to the Trustee.
(c) The
Servicer shall take no action that would result in noncoverage under
any
applicable primary mortgage insurance policy of any loss which, but for
the
actions of the Servicer would have been covered thereunder. The 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 Servicer 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.
The
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 the
Servicer under any primary mortgage insurance policies shall be deposited
in the
Collection Account, subject to withdrawal pursuant to Section 3.09.
Notwithstanding any provision to the contrary, the Servicer shall have
no
responsibility with respect to a primary mortgage insurance policy unless
the
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
The
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 the Servicer shall not
exercise
any such rights if prohibited by law from doing so. If the 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, the 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. The 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 Servicer for
mortgage
loans similar to the related Mortgage Loans. In connection with any assumption
or substitution, the 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. The Servicer shall neither take nor 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
the Servicer in respect of an assumption or substitution of liability
agreement
will be retained by the 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. The 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, the
Servicer
shall not 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 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) The
Servicer shall use its best 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. The 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 Servicer 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 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 Servicer
has
received actual notice of, or has actual knowledge of, the presence of
any toxic
or hazardous substance on the related Mortgaged Property, the 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 the 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 Servicer, subject to the Servicer’s right to be reimbursed
therefor from the 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 Collection Account received in respect of the
affected
Mortgage Loan or other Mortgage Loans.
If
the Servicer determines, as described above, that it is in the best economic
interest of the Trust Fund to take such actions as are necessary to bring
any
such Mortgaged Property into compliance with applicable environmental
laws, or
to take such action with respect to the containment, clean-up or remediation
of
hazardous substances, hazardous materials, hazardous wastes, or petroleum-based
materials affecting any such Mortgaged Property, then the 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 Servicer, subject to its right to be reimbursed therefor
from
the 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 Collection Account received in respect of the
affected
Mortgage Loan or other Mortgage Loans.
(c) The
Servicer shall have the right to purchase from REMIC I any defaulted
Mortgage
Loan serviced by it that is ninety (90) days or more delinquent, which
the
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 the 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 Collection
Account, and the Trustee, upon receipt of written certification from
the
Servicer of such deposit, shall release or cause to be released to the
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 Servicer shall furnish and as shall
be
necessary to vest in the 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 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 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 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 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 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).
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 Servicer of a notification that payment in full has been escrowed
in a
manner customary for such purposes for payment to Certificateholders
on the next
Distribution Date, the Servicer will 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 related 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
Collection Account have been or will be so deposited) and shall request
that the
applicable Custodian, on behalf of the Trustee, deliver to the Servicer
the
related Mortgage File. Upon receipt of such certification and request,
the
related Custodian, on behalf of the Trustee, shall within five (5) Business
Days
release the related Mortgage File to the Servicer and the Trustee and
the
related Custodian shall have no further responsibility with regard to
such
Mortgage File. Upon any such payment in full, the Servicer is authorized,
to
give, as agent for the Trustee, as the mortgagee under the Mortgage that
secured
the 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 Collection Account.
(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 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
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 related 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 Servicer.
Such
trust receipt shall obligate the Servicer to return the Mortgage File
to the
applicable Custodian on behalf of the Trustee, when the need therefor
by the
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 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 related
Custodial Agreement, in the event the Servicer fails to do so.
Upon
written certification of a Servicing Officer, the Trustee shall execute
and
deliver to the 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 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 the Servicer, or
for any
wrongful or negligent actions taken by the Servicer, while the 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 with respect to each Mortgage Loan serviced by it payable
solely
from payments of interest in respect of such Mortgage Loan, subject to
Section
3.23. In addition, the 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 3.22. The right
to receive
the Servicing Fee may not be transferred in whole or in part except in
connection with the transfer of all of the Servicer’s responsibilities and
obligations under this Agreement to the extent permitted herein.
Additional
servicing compensation in the form of assumption fees, late payment charges,
insufficient funds charges and other miscellaneous fees (other than Prepayment
Charges) and ancillary income shall be retained by the Servicer only
to the
extent such fees or charges are received by the Servicer. The Servicer
shall
also be entitled pursuant to Section 3.09(a)(iv) to withdraw from the
Collection
Account and pursuant to Section 3.22(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 Servicer shall be
entitled to
retain or withdraw from the 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. The 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,
the
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 Collection Account is maintained setting forth the status of the
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 Collection Account. Copies of such statement and
any
similar statements provided by the 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 the Servicer to the Securities Administrator.
SECTION
3.17. Annual
Statement as to Compliance.
(a) The
Servicer shall deliver (and shall cause any Additional Servicer engaged
by it to
deliver) to the Master Servicer and the Depositor on or before March
15 of each
year, commencing in March 2007, an Officer’s Certificate stating, as to the
signer thereof, that (A) a review of such party’s activities during the
preceding calendar year or portion thereof and of the 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, the Depositor shall review such
Officer’s Certificate from a Servicer or any Additional Servicer engaged by a
Servicer 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
the
Servicer’s obligations hereunder or, in the case of an Additional Servicer,
under such other applicable agreement.
(b) Failure
of the Servicer to comply timely with this Section 3.17 shall be deemed
a
Servicer Event of Default as to the 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 the Servicer under this Agreement and
in and
to the Mortgage Loans and the proceeds thereof without compensating the
Servicer
for the same. 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, the Servicer, at its
own
expense, shall furnish, and shall cause any Servicing Function Participant
engaged by it to furnish, each at its own expense, to the Master Servicer,
a
report on an assessment of compliance with the Relevant Servicing Criteria
that
contains (A) a statement by such party of its responsibility for assessing
compliance with the Relevant Servicing Criteria, (B) a statement that
such party
used the Relevant Servicing Criteria to assess compliance with the Relevant
Servicing Criteria, (C) such party’s assessment of compliance with the Relevant
Servicing Criteria as of and for the fiscal year covered by the Form
10-K
required to be filed pursuant to Section 5.06(d), including, if there
has been
any material instance of noncompliance with the Relevant Servicing Criteria,
a
discussion of each such failure and the nature and status thereof, and
(D) a
statement that a registered public accounting firm has issued an attestation
report on such party’s assessment of compliance with the Relevant Servicing
Criteria as of and for such period.
(b) By
March 15 of each year, commencing in March 2007, the Servicer, at its
own
expense, shall cause, and the 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 the Servicer
or such
other Servicing Function Participants, as the case may be) and that is
a member
of the American Institute of Certified Public Accountants to furnish
a report to
the Master Servicer, to the effect that (i) it has obtained a representation
regarding certain matters from the management of such party, which includes
an
assertion that such party has complied with the Relevant Servicing Criteria,
and
(ii) on the basis of an examination conducted by such firm in accordance
with
standards for attestation engagements issued or adopted by the PCAOB,
it is
expressing an opinion as to whether such party’s compliance with the Relevant
Servicing Criteria was fairly stated in all material respects, or it
cannot
express an overall opinion regarding such party’s assessment of compliance with
the Relevant Servicing Criteria. In the event that an overall opinion
cannot be
expressed, such registered public accounting firm shall state in such
report why
it was unable to express such an opinion. Such report must be available
for
general use and not contain restricted use language.
(c) Failure
of the Servicer to comply timely with this Section 3.18 shall be deemed
a
Servicer Event of Default as to the 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 the Servicer under this Agreement and
in and
to the Mortgage Loans and the proceeds thereof without compensating the
Servicer
for the same. This paragraph shall supersede any other provision in this
Agreement or any other agreement to the contrary.
SECTION
3.19. [Reserved].
SECTION
3.20. Annual
Certification.
(a) The
Servicer shall and shall cause any Servicing Function Participant engaged
by it
to, provide to the Person who signs the Xxxxxxxx-Xxxxx 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 the 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 3.20 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) The
Servicer shall indemnify and hold harmless the Master Servicer, the Securities
Administrator, the Trustee, the Depositor and their respective officers,
directors, agents and affiliates from and against any losses, damages,
penalties, fines, forfeitures, reasonable legal fees and related costs,
judgments and other costs and expenses arising out of or based upon a
breach by
the Servicer or any of its officers, directors, agents or affiliates
of its
obligations under this Section 3.20 or the Servicer’s negligence, bad faith or
willful misconduct in connection therewith. Such indemnity shall survive
the
termination or resignation of the parties hereto or the termination of
this
Agreement. If the indemnification provided for herein is unavailable
or
insufficient to hold harmless the Master Servicer, the Securities Administrator,
the Trustee and the Depositor, then the Servicer agrees that it shall
contribute
to the amount paid or payable by the Master Servicer, the Securities
Administrator, the Trustee and the Depositor as a result of the losses,
claims,
damages or liabilities of the Master Servicer, the Securities Administrator,
the
Trustee and the Depositor in such proportion as is appropriate to reflect
the
relative fault of the Master Servicer, the Securities Administrator,
the Trustee
and the Depositor on the one hand and the Servicer on the other in connection
with a breach of the Servicer’s obligations under this Section
3.20.
(c) The
Servicer shall provide to the Master Servicer prompt notice of the occurrence
of
any of the following:
(i) any
Servicer Event of Default under the terms of this Agreement, any merger,
consolidation or sale of substantially all of the assets of the Servicer,
the
Servicer’s engagement of any Sub-Servicer to perform or assist in the
performance of any of the Servicer’s obligations under this Agreement, any
material litigation involving the Servicer, and any affiliation or other
significant relationship between such Servicer and other transaction
parties.
(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 any Trust
that
includes any of the Mortgage Loans serviced by the Servicer, the 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 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 transaction covenants
(Item 1121(a)(12) of Regulation AB); and
(C) information
regarding new asset-backed securities issuances backed by the same pool
assets,
any pool asset changes (such as, additions, substitutions or repurchases),
and
any material changes in origination, underwriting or other criteria for
acquisition or selection of pool assets (Item 1121(a)(14) of Regulation
AB).
(d) The
Servicer shall provide to the Master Servicer such additional information
as the
Master Servicer may reasonably request, including evidence of the authorization
of the person signing any certification or statement, financial information
and
reports and of the fidelity bond and errors and omissions insurance policy
required to be maintained by the Servicer pursuant to this Agreement,
and such
other information related to the Servicer or its performance
hereunder.
SECTION
3.21. Access
to Certain Documentation.
The
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
Servicer designated by it. Nothing in this Section 3.21 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
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 3.21 shall require the Servicer to collect, create, collate or
otherwise
generate any information that it does not generate in its usual course
of
business. The Servicer shall not 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
3.22. Title,
Management and Disposition of REO Property.
(a) The
deed or certificate of sale of any REO Property related to a Mortgage
Loan shall
be taken in the name of the Trustee, or its nominee, on behalf of the
Trust Fund
and for the benefit of the Certificateholders. The 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 Servicer had delivered to the Trustee
an
Opinion of Counsel, addressed to the Trustee and the Depositor, to the
effect
that the holding by REMIC I of such REO Property subsequent to three
(3) years
after its acquisition will not result in the imposition on any Trust
REMIC
created hereunder of taxes on “prohibited transactions” thereof, as defined in
Section 860F of the Code, or cause any Trust REMIC hereunder to fail
to qualify
as a REMIC under Federal law at any time that any Certificates are outstanding.
The Servicer shall manage, conserve, protect and operate each REO Property
for
the Certificateholders solely for the purpose of its prompt disposition
and sale
in a manner which does not cause such REO Property to fail to qualify
as
“foreclosure property” within the meaning of Section 860G(a)(8) of the Code or
result in the receipt by any Trust REMIC created hereunder of any “income from
non-permitted assets” within the meaning of Section 860F(a)(2)(B) of the Code,
or any “net income from foreclosure property” which is subject to taxation under
the REMIC Provisions.
(b) The
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. The Servicer shall be permitted to allow the Collection
Account to serve as the REO Account, subject to the maintenance of separate
ledgers for each REO Property. The Servicer shall be entitled to retain
or
withdraw any interest income paid on funds deposited in the related REO
Account.
(c) The
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 the Servicer manages and operates
similar property owned by it or any of its Affiliates, all on such terms
and for
such period as the Servicer deems to be in the best interests of
Certificateholders. In connection therewith, the 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 its 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 Servicer shall advance
from
its own funds such amount as is necessary for such purposes if, but only
if, the
Servicer would make such advances if the Servicer owned the REO Property
and if
in the 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 Servicer, on behalf of
the Trust
Fund, shall not:
(i) 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;
(ii) permit
any amount to be received or accrued under any New Lease other than amounts
that
will constitute Rents from Real Property;
(iii) 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
(iv) 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 Servicer has obtained an Opinion of Counsel, provided
to
the 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 Servicer may take such actions as are specified in such Opinion
of
Counsel.
The
Servicer may contract with any Independent Contractor for the operation
and
management of any REO Property, provided that:
(i) the
terms and conditions of any such contract shall not be inconsistent
herewith;
(ii) 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
Servicer
as soon as practicable, but in no event later than thirty (30) days following
the receipt thereof by such Independent Contractor;
(iii) none
of the provisions of this Section 3.22(c) relating to any such contract
or to
actions taken through any such Independent Contractor shall be deemed
to relieve
the 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
(iv) the
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
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 Servicer by such Independent Contractor,
and nothing in this Agreement shall be deemed to limit or modify such
indemnification. The Servicer shall be solely liable for all fees owed
by it to
any such Independent Contractor, irrespective of whether the Servicer’s
compensation pursuant to Section 3.15 is sufficient to pay such fees.
Any such
agreement shall include a provision that such agreement may be immediately
terminated by any successor servicer (including the Master Servicer)
without
fee, in the event the related shall for any reason, no longer be the
Servicer of
the Mortgage Loans (including termination due to a Servicer Event of
Default).
(d) In
addition to the withdrawals permitted under Section 3.22(c), the 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 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 3.22(c) or this Section 3.22(d).
(e) Subject
to the time constraints set forth in Section 3.22(a), each REO Disposition
shall
be carried out by the Servicer at such price and upon such terms and
conditions
as the 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 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
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
3.23. Obligations
of the Servicer in Respect of Prepayment Interest Shortfalls; Relief
Act
Interest Shortfalls.
The
Servicer shall deliver to the Securities Administrator for deposit into
the
Distribution Account on or before 12:00 noon New York time on the Servicer
Remittance Date from its own funds an amount equal to the lesser of (i)
the
aggregate amount of the Prepayment Interest Shortfalls attributable to
prepayments in full on the related Mortgage Loans for the related Distribution
Date resulting solely from voluntary Principal Prepayments received by
the
Servicer during the related Prepayment Period and (ii) the aggregate
amount of
the related Servicing Fees payable to the Servicer on such Distribution
Date
with respect to the related Mortgage Loans. The Servicer shall not have
the
right to reimbursement for any amounts remitted to the Securities Administrator
in respect of this Section 3.23. The Servicer shall not be obligated
to pay the
amounts set forth in this Section 3.23 with respect to shortfalls resulting
from
the application of the Relief Act.
SECTION
3.24. Obligations
of the Servicer 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 the Servicer
in
a manner not consistent with the terms of the related Mortgage Note and
this
Agreement, the 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
3.24
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
3.25. Reserve
Fund.
(a) No
later than the Closing Date, the Securities Administrator shall establish
and
maintain a separate, segregated trust account entitled, “Reserve Fund, Xxxxx
Fargo Bank, National Association, in trust for the registered holders
of ACE
Securities Corp. Home Equity Loan Trust, Series 2006-ASAP1, 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)(7)(vi), rather
than
distributing such amounts to the Class CE Certificateholders, and Section
5.01(c)(7)(viii). 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(c). 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
Certificateholders, from amounts otherwise distributable to the Class
CE
Certificateholders, an amount such that when added to other amounts already
on
deposit in the Reserve Fund, the aggregate amount on deposit therein
is equal to
$1,000.
(c) For
federal and state income tax purposes, the Class CE Certificateholders
will be
deemed to be the owners of the Reserve Fund and all amounts deposited
into the
Reserve Fund (other than the initial deposit therein of $1,000) shall
be treated
as amounts distributed by REMIC II to the Holders of the Class CE 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 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 Certificate, each Class CE 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 Certificate,
each
Class CE 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 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
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 $5,000 with respect to the Certificates covered by
the Swap
Agreement.
SECTION
3.26. Advance
Facility.
(a) Notwithstanding
anything to the contrary contained herein, (i) the 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 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
Servicer pursuant to this Agreement and (ii) the Servicer is hereby authorized
to assign its rights to the Servicing Fee (which rights shall terminate
upon the
resignation, termination or removal of the 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 3.26(a), no consent
of
the Depositor, Trustee, Master Servicer, Certificateholders or any other
party
is required before the Servicer may enter into an Advance Facility, but
the
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 xxxxxxxxxxxx X&X 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 the Servicer’s behalf, the 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 Servicer would be permitted to reimburse
itself in accordance with this Agreement, assuming the Servicer had made
the
related P&I Advance(s) and/or Servicing Advance(s).
(c) The
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 xxxxxxxxxxxx X&X 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
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 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 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 3.26 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 3.26, including amendments to add
provisions
relating to a successor servicer, may be entered into by the Trustee,
the
Depositor, and the 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 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 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 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 Servicer and the lender or the payment of any amount under
an
Advance Facility.
(f) The
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
3.27. Indemnification.
The
Servicer agrees to indemnify the Trustee, Master Servicer and the Securities
Administrator, from, and hold the Trustee, Master Servicer and the Securities
Administrator harmless against, any loss, liability or expense (including
reasonable attorney’s fees and expenses) incurred by any such Person by reason
of the Servicer’s willful misfeasance, bad faith or gross negligence in the
performance of its duties under this Agreement or by reason of the 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 Servicer, the Trustee, the Master Servicer
and the
Securities Administrator. Any payment hereunder made by the Servicer
to any such
Person shall be from the 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 Servicer under this Agreement to service
and
administer the Mortgage Loans in accordance with the terms of this Agreement
and
shall have full power and authority to do any and all things which it
may deem
necessary or desirable in connection with such master servicing and
administration. In performing its obligations hereunder, the Master Servicer
shall act in a manner consistent with Accepted Master Servicing Practices.
Furthermore, the Master Servicer shall oversee and consult with the Servicer
as
necessary from time-to-time to carry out the Master Servicer’s obligations
hereunder, shall receive, review and evaluate all reports, information
and other
data provided to the Master Servicer by the Servicer and shall cause
the
Servicer to perform and observe the covenants, obligations and conditions
to be
performed or observed by the Servicer under this Agreement. The Master
Servicer
shall independently and separately monitor the Servicer’s servicing activities
with respect to each Mortgage Loan, reconcile the results of such monitoring
with such information provided in the previous sentence on a monthly
basis and
coordinate corrective adjustments to the Servicer’s and Master Servicer’s
records, and based on such reconciled and corrected information, prepare
the
statements specified in Section 5.03 and any other information and statements
required to be provided by the Master Servicer hereunder. The Master
Servicer
shall reconcile the results of its Mortgage Loan monitoring with the
actual
remittances of the Servicer to the Distribution Account pursuant to the
terms
hereof based on information provided to the Master Servicer by the
Servicer.
The
Trustee shall furnish the 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 Servicer and the Master Servicer to service
and
administer the Mortgage Loans and REO Property. The Trustee shall have
no
responsibility for any action of the Master Servicer or the Servicer
pursuant to
any such limited power of attorney and shall be indemnified by the Master
Servicer or the Servicer, 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 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 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 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 Servicer.
(a) The
Master Servicer shall be responsible for monitoring the compliance by
the
Servicer with its duties under this Agreement. In the review of the Servicer’s
activities, the Master Servicer may rely upon an Officer’s Certificate of the
Servicer with regard to the Servicer’s compliance with the terms of this
Agreement. In the event that the Master Servicer, in its judgment, determines
that the Servicer should be terminated in accordance with the terms hereof
or
that a notice should be sent pursuant to the terms hereof with respect
to the
occurrence of an event that, unless cured, would constitute a Servicer
Event of
Default, the Master Servicer shall notify the Servicer, the Sponsor and
the
Trustee thereof and the Master Servicer shall issue such notice or take
such
other action as it deems appropriate.
(b) The
Master Servicer, for the benefit of the Trustee and the Certificateholders,
shall enforce the obligations of the Servicer under this Agreement and
shall, in
the event that the Servicer fails to perform its obligations in accordance
with
this Agreement, subject to this Section and Article VIII, notify the
Trustee and
the Trustee shall terminate the rights and obligations of the Servicer
hereunder
and the Master Servicer shall act as servicer of the Mortgage Loans or
a
successor servicer shall be appointed 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 Mortgage Loans. The Master Servicer shall pay the costs of such
enforcement at its own expense, provided that the Master Servicer shall
not be
required to prosecute or defend any legal action except to the extent
that the
Master Servicer shall have received reasonable indemnity for its costs
and
expenses in pursuing such action.
(c) The
Master Servicer shall be entitled to be reimbursed by the Servicer (or
from
amounts on deposit in the Distribution Account if the Servicer is unable
to
fulfill its obligations hereunder) for all reasonable out-of-pocket or
third
party costs associated with the transfer of servicing from the predecessor
Servicer (or if the predecessor Servicer is the Master Servicer, from
the
Servicer immediately preceding the Master Servicer), including without
limitation, any reasonable out-of-pocket or third party costs or expenses
associated with the complete transfer of all servicing data and the completion,
correction or manipulation of such servicing data as may be required
by the
successor servicer (including the Master Servicer) to correct any errors
or
insufficiencies in the servicing data or otherwise to enable the successor
servicer (including the Master Servicer) to service the Mortgage Loans
properly
and effectively, upon presentation of reasonable documentation of such
costs and
expenses.
(d) The
Master Servicer shall require the Servicer to comply with the remittance
requirements and other obligations set forth in this Agreement.
(e) If
the Master Servicer acts as a successor to the 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 Servicer to) knowingly or intentionally take any action, or
fail to
take (or fail to cause to be taken) any action reasonably within its
control and
the scope of duties more specifically set forth herein, that, under the
REMIC
Provisions, if taken or not taken, as the case may be, would cause REMIC
I,
REMIC II or REMIC III to fail to qualify as a REMIC or result in the
imposition
of a tax upon the Trust Fund (including but not limited to the tax on
prohibited
transactions as defined in Section 860F(a)(2) of the Code and the tax
on
contributions to a REMIC set forth in Section 860G(d) of the Code) unless
the
Master Servicer has received an Opinion of Counsel (but not at the expense
of
the Master Servicer) to the effect that the contemplated action will
not cause
REMIC I, REMIC II or REMIC III to fail to qualify as a REMIC or result
in the
imposition of a tax upon REMIC I, REMIC II or REMIC III, as the case
may be. The
Trustee shall furnish the Master Servicer, upon written request from
a Servicing
Officer, with any powers of attorney prepared and delivered to it and
reasonably
acceptable to it by empowering the Master Servicer or the Servicer to
execute
and deliver instruments of satisfaction or cancellation, or of partial
or full
release or discharge, and to foreclose upon or otherwise liquidate Mortgaged
Property, and to appeal, prosecute or defend in any court action relating
to the
Mortgage Loans or the Mortgaged Property, in accordance with this Agreement,
and
the Trustee shall execute and deliver such other documents prepared and
delivered to it and reasonably acceptable to it, as the Master Servicer
or the
Servicer may request, to enable the Master Servicer to master service
and
administer the Mortgage Loans and carry out its duties hereunder, in
each case
in accordance with Accepted Master Servicing Practices (and the Trustee
shall
have no liability for misuse of any such powers of attorney by the Master
Servicer or the Servicer and shall be indemnified by the Master Servicer
or the
Servicer, as applicable, for any 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 Servicer to enforce such clauses in accordance
with
this Agreement. If applicable law prohibits the enforcement of a due-on-sale
clause or such clause is otherwise not enforced in accordance with this
Agreement and, as a consequence, a Mortgage Loan is assumed, the original
Mortgagor may be released from liability in accordance with this
Agreement.
SECTION
4.07. Documents,
Records and Funds in Possession of Master Servicer To Be Held for
Trustee.
(a) The
Master Servicer shall transmit to the Trustee or the 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
3.21 of this Agreement, shall cause the Servicer to, provide access to
information and documentation regarding the Mortgage Loans to the Trustee,
its
agents and accountants at any time upon reasonable request and during
normal
business hours, and to Certificateholders that are savings and loan
associations, banks or insurance companies, the 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 the
Servicer under this Agreement to maintain or cause to be maintained standard
fire and casualty insurance and, where applicable, flood insurance, all
in
accordance with the provisions of this Agreement. It is understood and
agreed
that such insurance shall be with insurers meeting the eligibility requirements
set forth in Section 3.11 of the Agreement and that no earthquake or
other
additional insurance is to be required of any Mortgagor or to be maintained
on
property acquired in respect of a defaulted loan, other than pursuant
to such
applicable laws and regulations as shall at any time be in force and
as shall
require such additional insurance.
SECTION
4.09. Presentment
of Claims and Collection of Proceeds.
The
Master Servicer shall enforce the Servicer’s obligations under this Agreement to
prepare and present on behalf of the Trustee and the Certificateholders
all
claims under any insurance policies and take such actions (including
the
negotiation, settlement, compromise or enforcement of the insured’s claim) as
shall be necessary to realize recovery under such policies. Any proceeds
disbursed to the Master Servicer (or disbursed to the Servicer and remitted
to
the Master Servicer) in respect of such policies, bonds or contracts
shall be
promptly deposited in the Distribution Account upon receipt, except that
any
amounts realized that are to be applied to the repair or restoration
of the
related Mortgaged Property as a condition precedent to the presentation
of
claims on the related Mortgage Loan to the insurer under any applicable
insurance policy need not be so deposited or remitted.
SECTION
4.10. Maintenance
of Primary Mortgage Insurance Policies.
(a) The
Master Servicer shall not take, or permit the Servicer to take (to the
extent
such action is prohibited by this 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 or the Servicer, as applicable,
would
have been covered thereunder. The Master Servicer shall use its best
reasonable
efforts to cause the 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. The Master Servicer shall not, and shall
not
permit the 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.
(b) The
Master Servicer agrees to cause the 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 and the Servicer have
otherwise
fulfilled their respective obligations under this Agreement the Trustee
or the
applicable Custodian shall also retain possession and custody of each
Mortgage
File in accordance with and subject to the terms and conditions of this
Agreement and the 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 Servicer to foreclose upon, repossess
or
otherwise comparably convert the ownership of Mortgaged Properties securing
such
of the Mortgage Loans as come into and continue in default and as to
which no
satisfactory arrangements can be made for collection of delinquent payments,
all
in accordance with this Agreement.
SECTION
4.13. Compensation
for the Master Servicer.
As
compensation for the activities of the Master Servicer hereunder, the
Master
Servicer shall be entitled to the Master Servicing Fee and the income
from
investment of or earnings on the funds from time to time in the Distribution
Account, as provided in Section 3.10. The compensation payable to the
Master
Servicer in respect of any Distribution Date shall be reduced in accordance
with
Section 4.18. The Master Servicer shall be required to pay all expenses
incurred
by it in connection with its activities hereunder and shall not be entitled
to
reimbursement therefor except as provided in this Agreement.
SECTION
4.14. REO
Property.
(a) In
the event the Trust Fund acquires ownership of any REO Property in respect
of
any 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 Servicer to sell, any REO Property as
expeditiously as possible and in accordance with the provisions of this
Agreement. Further, the Master Servicer shall cause the 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
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 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 Servicer to protect
and
conserve, such REO Property in the manner and to the extent required
by this
Agreement in accordance with the REMIC Provisions and in a manner that
does not
result in a tax on “net income from foreclosure property” or cause such REO
Property to fail to qualify as “foreclosure property” within the meaning of
Section 860G(a)(8) of the Code.
(b) The
Master Servicer shall cause the Servicer to deposit all funds collected
and
received in connection with the operation of any REO Property in the
REO
Account.
SECTION
4.15. Master
Servicer Annual Statement of Compliance.
(a) The
Master Servicer and the Securities Administrator shall deliver (or otherwise
make available) (and the Master Servicer and Securities Administrator
shall
cause any Additional Servicer or Servicing Function Participant (other
than any
Subcontractors) engaged by it to deliver) to the Depositor and the Securities
Administrator on or before March 15 of each year, commencing in March
2007, an
Officer’s Certificate stating, as to the signer thereof, that (A) a review of
such party’s activities during the preceding calendar year or portion thereof
and of such party’s performance under this Agreement, or such other applicable
agreement in the case of an Additional Servicer, has been made under
such
officer’s supervision and (B) to the best of such officer’s knowledge, based on
such review, such party has fulfilled all its obligations under this
Agreement,
or such other applicable agreement in the case of an Additional Servicer,
in all
material respects throughout such year or portion thereof, or, if there
has been
a failure to fulfill any such obligation in any material respect, specifying
each such failure known to such officer and the nature and status thereof.
(b) The
Master Servicer shall include all annual statements of compliance received
by it
with its own annual statement of compliance to be submitted to the Securities
Administrator pursuant to this Section 4.15. In the event the Master
Servicer,
the Securities Administrator or any Servicing Function Participant engaged
by
the parties is terminated 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 with respect to the period of time it was subject to this
Agreement
or any other applicable agreement, as the case may be.
(c) 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.
(d) 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 and the Depositor, a report on an assessment of compliance
with
the Relevant Servicing Criteria that contains (A) a statement by such
party of
its responsibility for assessing compliance with the Relevant Servicing
Criteria, (B) a statement that such party used the Relevant Servicing
Criteria
to assess compliance with the Relevant Servicing Criteria, (C) such party’s
assessment of compliance with the Relevant Servicing Criteria as of and
for the
fiscal year covered by the Form 10-K required to be filed pursuant to
Section
5.06(d), including, if there has been any material instance of noncompliance
with the Relevant Servicing Criteria, a discussion of each such failure
and the
nature and status thereof, and (D) a statement that a registered public
accounting firm has issued an attestation report on such party’s assessment of
compliance with the Relevant Servicing Criteria as of and for such period.
(b) No
later than the end of each fiscal year for the Trust for which a 10-K
is
required to be filed, the Master Servicer shall forward to the Securities
Administrator and to 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. When the Master Servicer and the Securities Administrator
(or any
Servicing Function Participant engaged by them) submit their assessments
to the
Securities Administrator, such parties will also at such time include
the
assessment (and attestation pursuant to Section 4.17) of each Servicing
Function
Participant engaged by it.
(c) Promptly
after receipt of each such report on assessment of compliance, (i) the
Depositor
shall review each such report and, if applicable, consult with the Master
Servicer, the Securities Administrator and any Servicing Function Participant
engaged by such parties as to the nature of any material instance of
noncompliance with the Relevant Servicing Criteria by each such party,
and (ii)
the Securities Administrator shall confirm that the assessments, taken
as a
whole, address all of the Servicing Criteria and taken individually address
the
Relevant Servicing Criteria for each party as set forth on Exhibit E
and notify
the Depositor of any exceptions.
(d) The
Master Servicer shall include all annual reports on assessment of compliance
received by it with its own assessment of compliance to be submitted
to the
Securities Administrator pursuant to this Section 4.16. In the event
the Master
Servicer, the Securities Administrator or any Servicing Function Participant
engaged by the parties is terminated 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 with respect to the period
of time
it was subject to this Agreement or any other applicable agreement, as
the case
may be.
(e) Delivery
under this Section 4.16 of such reports, information and documents to
the
Trustee is for informational purposes only, and the Trustee’s receipt of such
shall not constitute constructive notice of any information contained
therein or
determinable from information contained therein, including the Master
Servicer’s
compliance with any of its covenants hereunder (as to which the Trustee
is
entitled to conclusively rely exclusively on an Officer’s
Certificate).
(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.
SECTION
4.17. Master
Servicer Attestation Reports.
(a) By
March 15 of each year, commencing in March 2007, the Master Servicer
and the
Securities Administrator, each at its own expense, shall cause, and each
such
party shall cause any Servicing Function Participant engaged by it to
cause,
each at its own expense, a registered public accounting firm (which may
also
render other services to the Master Servicer, the Securities Administrator,
or
such other Servicing Function Participants, as the case may be) and that
is a
member of the American Institute of Certified Public Accountants to furnish
a
report to the Securities Administrator and the Depositor, to the effect
that (i)
it has obtained a representation regarding certain matters from the management
of such party, which includes an assertion that such party has complied
with the
Relevant Servicing Criteria, and (ii) on the basis of an examination
conducted
by such firm in accordance with standards for attestation engagements
issued or
adopted by the PCAOB, it is expressing an opinion as to whether such
party’s
compliance with the Relevant Servicing Criteria was fairly stated in
all
material respects, or it cannot express an overall opinion regarding
such
party’s assessment of compliance with the Relevant Servicing Criteria. In the
event that an overall opinion cannot be expressed, such registered public
accounting firm shall state in such report why it was unable to express
such an
opinion. Such report must be available for general use and not contain
restricted use language.
(b) Promptly
after receipt of such report from the Master Servicer, the Securities
Administrator or any Servicing Function Participant engaged by such parties,
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 attestation received by it with its
own
attestation report to be submitted to the Securities Administrator pursuant
to
this Section 4.17. In the event the Master Servicer, the Securities
Administrator or any Servicing Function Participant engaged by the parties
is
terminated 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 attestation pursuant to this Section 4.17
with
respect to the period of time it was subject to this Agreement or any
other
applicable agreement, as the case may be.
(d) 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.
(a) Each
Form 10-K required to be filed for the Trust pursuant to Section 5.06
shall
include a certification (the “Xxxxxxxx-Xxxxx Certification”), required to be
included therewith pursuant to the Xxxxxxxx-Xxxxx 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 Xxxxxxxx-Xxxxx Certification (the “Certifying Person”), by March 15 of each
year in which the Trust is subject to the reporting requirements of the
Exchange
Act and otherwise within a reasonable period of time upon request, a
certification (each, a “Back-Up Certification”), in the form attached hereto as
Exhibit C, upon which the Certifying Person, the entity for which the
Certifying
Person acts as an officer, and such entity’s officers, directors and Affiliates
(collectively with the Certifying Person, “Certification Parties”) can
reasonably rely. The officer of the Master Servicer in charge of the
master
servicing function shall serve as the Certifying Person on behalf of
the Trust.
In the event the Master Servicer, the Securities Administrator or any
Servicing
Function Participant engaged by parties is terminated or resigns pursuant
to the
terms of this Agreement, or any applicable Sub-Servicing Agreement, as
the case
may be, such party shall provide a Back-Up Certification to the Certifying
Person pursuant to this Section 4.18 with respect to the period of time
it was
subject to this Agreement or any applicable Sub-Servicing Agreement,
as the case
may be.
SECTION
4.19. Obligation
of the Master Servicer in Respect of Prepayment Interest
Shortfalls.
In
the event of any Prepayment Interest Shortfalls, the Master Servicer
shall
deposit into the Distribution Account not later than the related Distribution
Date an amount equal to the lesser of (i) the aggregate amounts required
to be
paid by the 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 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, the Servicer shall provide
in an
electronic format acceptable to the Master Servicer the data necessary
for the
Master Servicer to perform its verification duties set forth in this
Section
4.19. The Master Servicer or a third party reasonably acceptable to the
Master
Servicer and the Depositor (the “Verification Agent”) will perform such
verification duties and will use its best efforts to issue its findings
in a
report (the “Verification Report”) delivered to the Master Servicer and the
Depositor within ten (10) Business Days following the related Distribution
Date;
provided, however, that if the Verification Agent is unable to issue
the
Verification Report within ten (10) Business Days following the Distribution
Date, the Verification Agent may issue and deliver to the Master Servicer
and
the Depositor the Verification Report upon the completion of its verification
duties. The Master Servicer shall forward the Verification Report to
the
Servicer and shall notify the Servicer if the Master Servicer has determined
that the 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 Servicer agrees with the verified amounts, the
Servicer
shall adjust the immediately succeeding Servicer Report and the amount
remitted
to the Securities Administrator with respect to prepayments accordingly.
If the
Servicer disagrees with the determination of the Master Servicer, the
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 Servicer and the
Master
Servicer shall cooperate to resolve any discrepancy on or prior to the
immediately succeeding Servicer Remittance Date, and the Servicer will
indicate
the effect of such resolution on the Servicer Report and shall adjust
the amount
remitted with respect to prepayments on such Servicer Remittance Date
accordingly.
During
such time as the 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 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 Servicer.
ARTICLE
V
PAYMENTS
TO CERTIFICATEHOLDERS
SECTION
5.01. Distributions.
(a) 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:
(1) With
respect to the Group I Mortgage Loans:
(i) to
Holders of REMIC I Regular Interest I-1-A through I-42-B, pro
rata,
in an amount equal to (A) Uncertificated Interest for such REMIC I Regular
Interests for such Distribution Date, plus (B) any amounts payable in
respect
thereof remaining unpaid from previous Distribution Dates; and
(ii) to
the extent of amounts remaining after the distributions made pursuant
to clause
(i) above, payments of principal shall be allocated to REMIC I Regular
interests
I-1-A through I-42-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 II Mortgage Loans:
(i) to
Holders of REMIC I Regular Interest II-1-A through II-42-B, pro
rata,
in an amount equal to (A) Uncertificated Interest for such REMIC I Regular
Interests for such Distribution Date, plus (B) any amounts payable in
respect
thereof remaining unpaid from previous Distribution Dates; and
(ii) to
the extent of amounts remaining after the distributions made pursuant
to clause
(i) above, payments of principal shall be allocated to REMIC I Regular
interests
II-1-A through II-42-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 I-42-A all amounts representing
Prepayment Charges in respect of the Group I Mortgage Loans received
during the
related Prepayment Period and to the Holders of REMIC I Regular Interest
II-42-A, all amounts representing Prepayment Charges in respect of the
Group II
Mortgage Loans received during the related Prepayment Period..
(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-1, 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 M-11 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-1, 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 M-11
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 I-SUB, REMIC II Regular Interest
I-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-1, 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
M-11,
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, all Prepayment Charges and
on the
Distribution Date immediately following the expiration of the latest
Prepayment
Charge as identified on the Prepayment Charge Schedule or any Distribution
Date
thereafter until $100 has been distributed pursuant to this clause;
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 (c)(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(c)(1), distributions of funds
shall
be made to Certificateholders only in accordance with Section 5.01(c)(2)
through
(7) and Section 5.01(d).
(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 I 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 I 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-1 Certificates, the Senior Interest Distribution
Amount allocable to the Class A-1 Certificates; and
third,
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, to the extent remaining unpaid after the distribution of
the Group
II Interest Remittance Amount as set forth in Section 5.01(c)(3) below
on a pro
rata basis, based on the entitlement of each such Class.
(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 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;
and
third,
to the Holders of the Class A-1 Certificates, the Senior Interest Distribution
Amount allocable to the Class A-1 Certificates, to the extent remaining
unpaid
after the distribution of the Group I Interest Remittance Amount as set
forth in
Section 5.01(c)(2) above.
(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 I Interest Remittance Amount and the Group II Interest Remittance
Amount
remaining after the distributions required by clauses (2) and (3) above
and make
the following disbursements and transfers in the order of priority described
below, in each case to the extent of the Group I 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, Class M-10 and Class M-11
Certificates, in that order, to the extent of the Interest Distribution
Amount
allocable to each such Class.
(5) 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 I Principal Distribution Amount and the Group II Principal Distribution
Amount and distribute to the Certificateholders the following amounts,
in the
following order of priority:
(i) The
Group I Principal Distribution Amount shall be distributed in the following
order of priority:
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 to the extent not paid from the Interest Remittance Amount
on such
Distribution Date;
second,
to the Holders of the Class A-1 Certificates until the Certificate Principal
Balance of the Class A-1 Certificates has been reduced to zero; and
third,
sequentially, to the Holders of the Class A-2A, Class A-2B, Class A-2C
and Class
A-2D Certificates, in that order, after taking into account the distribution
of
the Group II Principal Distribution Amount as described in Section
5.01(c)(5)(ii) below, until the Certificate Principal Balance of each
such Class
has been reduced to zero.
(ii) 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; and
third,
to the Holders of the Class A-1 Certificates after taking into account
the
distribution of the Group I Principal Distribution Amount as described
in
Section 5.01(c)(5)(i) above, until the Certificate Principal Balance
of such
Class has been reduced to zero.
(iii) The
Group I Principal Distribution Amount and Group II Principal Distribution
Amount
remaining after distributions pursuant to Sections 5.01(c)(5)(i) and
(ii) 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, Class M-10 and Class M-11
Certificates, in that order, until the Certificate Principal Balance
of each
such Class has been reduced to zero.
(6) 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 I Principal Distribution Amount and the Group II Principal Distribution
Amount and distribute to the Certificateholders the following amounts,
in the
following order of priority:
(i) The
Group I Principal Distribution Amount shall be distributed in the following
order of priority:
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 to the extent not paid from the Interest Remittance Amount
on such
Distribution Date;
second,
to the Holders of the Class A-1 Certificates, the Class A-1 Principal
Distribution Amount, until the Certificate Principal Balance of such
Class has
been reduced to zero; and
third,
sequentially, to the Holders of the Class A-2A, Class A-2B, Class A-2C
and Class
A-2D Certificates, in that order, after taking into account the distribution
of
the Group II Principal Distribution Amount pursuant to Section 5.01(c)(6)(ii)
below, up to an amount equal to the amount, if any, of the Class A-2
Principal
Distribution Amount remaining unpaid on such Distribution Date, until
the
Certificate Principal Balance of each such Class has been reduced to
zero.
(ii) 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; and
third,
to the Holders of the Class A-1 Certificates, after taking into account
the
distribution of the Group I Principal Distribution Amount pursuant to
Section
5.01(c)(6)(i) above, up to an amount equal to the amount, if any, of
the Class
A-1 Principal Distribution Amount remaining unpaid on such Distribution
Date,
until the Certificate Principal Balance of the Class A-1 Certificates
has been
reduced to zero.
(iii) The
Principal Distribution Amount remaining after distributions pursuant
to Sections
5.01(c)(6)(i) and (ii) 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;
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 Certificate 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;
and
eleventh,
to the Holders of the Class M-11 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, to the Holders of the Class M-9 Certificate under clause ninth
above and to the Holders of the Class M-10 Certificates under clause
tenth
above,
and (y) the Class M-11 Principal Distribution Amount, until the Certificate
Principal Balance of the Class M-11 Certificates has been reduced to
zero.
Notwithstanding
the priority of distributions described in this Section 5.01(c) with
respect to
the Class A-2A, Class A-2B, Class A-2C and Class A-2D Certificates, on
any
Distribution Date which occurs after the Certificate Principal Balances
of the
Mezzanine Certificates have been reduced to zero distributions in respect
of
principal to the Class A-2A, Class A-2B, Class A-2C and Class A-2D Certificates
will be made 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.
(7) 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:
(i) 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(c)(5) and (6) above
below;
(ii) 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, Class M-10 and Class M-11
Certificates, in that order, in an amount equal to the Interest Carry
Forward
Amount allocable to each such Class;
(iii) 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, Class M-10 and Class M-11
Certificates, in that order, in an amount equal to the Allocated Realized
Loss
Amount allocable to each such Class;
(iv) 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
3.23 or
4.18 of this Agreement 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;
(v) 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, Class M-10 and Class M-11
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 4.18 of this
Agreement
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;
(vi) 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;
(vii) 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;
(viii)
to the Holders of the Class CE Certificates the Interest Distribution
Amount and
any Overcollateralization Reduction Amount for such Distribution Date;
and
(ix) 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 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
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, eleventh, to the
Class M-10
Certificates and twelfth, to the Class M-11 Certificates, in each case
to the
extent to the extent any Net WAC Rate Carryover Amount is allocable to
each such
Class.
(d) 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).
(e) On
each Distribution Date, to the extent required, following the distribution
of
the Net Monthly Excess Cashflow and withdrawals from the Reserve Fund,
the
Securities Administrator will withdraw any amounts in the Supplemental
Interest
Trust and distribute such amounts in the following order of priority:
first,
to the Swap Provider, any Net Swap Payment owed to the Swap Provider
pursuant to
the Swap Agreement for such Distribution Date;
second,
to the Swap Provider, any Swap Termination Payment owed to the Swap Provider
not
due to a Swap Provider Trigger Event pursuant to the Swap
Agreement;
third,
concurrently, to each Class of Class A Certificates, the related Senior
Interest
Distribution Amount remaining undistributed after the distributions of
the Group
I Interest Remittance Amount and the Group II Interest Remittance Amount,
on a
pro
rata
basis based on such respective remaining Senior Interest Distribution
Amounts;
fourth,
sequentially, to the Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class
M-5,
Class M-6, Class M-7, Class M-8, Class M-9, Class M-10 and Class M-11
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 I Interest Remittance Amount, the 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 X-0, Xxxxx X-0, Class M-3, Class M-4, Class
M-5,
Class M-6, Class M-7, Class M-8, Class M-9, Class M-10 and Class M-11
Certificates, in that order, the related Net WAC Rate Carryover Amount,
to the
extent remaining undistributed after distributions are made from 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 X-0, Xxxxx X-0, Class M-3, Class M-4, Class
M-5, Class
M-6, Class M-7, Class M-8, Class M-9, Class M-10 and Class M-11 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
Swap
Agreement; and
tenth,
to the Class CE Certificates, any remaining amounts.
(f) On
each Distribution Date, the Securities Administrator shall withdraw any
amounts
then on deposit in the Distribution Account that represent Prepayment
Charges
and shall distribute such amounts to the Class P Certificateholders as
described
above.
(g) 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(i)
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.
(h) 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.
(i) 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(i). Any such amounts held in trust
by the
Securities Administrator shall be held uninvested in an Eligible
Account.
(j) 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, a statement as to the distributions
made on
such Distribution Date setting forth:
(i) the
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
amount, if any, of fees or expenses accrued and paid, with an identification
of
the payee and the general purpose of such fees;
(iv) 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;
(v) 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;
(vi) with
respect to each loan group, the Interest Carry Forward Amounts and any
Net WAC
Rate Carryover Amounts for the related Certificates (if any);
(vii) 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;
(viii) with
respect to each loan group, the number and Scheduled Principal Balance
of all
the Mortgage Loans for the following Distribution Date;
(ix) the
Pass-Through Rate for each Class of Certificates for such Distribution
Date;
(x) the
aggregate amount of Advances included in the distributions on the Distribution
Date (including the general purpose of such Advances);
(xi) 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;
(xii) the
amount of, if any, of Net Monthly Excess Cashflow or excess spread and
the
application of such Net Monthly Excess Cashflow;
(xiii) 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;
(xiv) with
respect to each loan group, whether the Stepdown Date has occurred and
whether
Trigger Event is in effect;
(xv) the
total number and principal balance of any real estate owned, or REO Properties,
as of the end of the related Prepayment Period;
(xvi) with
respect to each loan group, the cumulative Realized Losses through the
end of
the preceding month;
(xvii) 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,
(xviii) with
respect to each loan group, the amount of the Prepayment Charges remitted
by the
Servicer;
(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 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 Servicer pursuant
to Section
3.23 of this Agreement or the Master Servicer pursuant to Section 4.19
of this
Agreement;
(xxii) the
Required Overcollateralization Amount and the Credit Enhancement Percentage
for
such Distribution Date;
(xxiii) the
Overcollateralization Increase Amount, if any, for such Distribution
Date;
(xxiv) the
Overcollateralization Reduction Amount, if any, for such Distribution
Date;
(xxv) the
amount of any deposit to the Reserve Fund contemplated by Section
3.25(b);
(xxvi) the
balance of the Reserve Fund prior to the deposit or withdrawal of any
amounts on
such Distribution Date;
(xxvii) the
amount of any deposit to the Reserve Fund pursuant to Section
5.01(c)(7)(vi);
(xxviii) the
Aggregate Loss Severity Percentage; and
(xxix) 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 and the Rating Agencies
via the
Securities Administrator’s internet website. The Securities Administrator’s
internet website shall initially be located at http:\\xxx.xxxxxxx.xxx
and
assistance in using the website can be obtained by calling the Securities
Administrator’s customer service desk at 0-000-000-0000. Parties that are unable
to use the above distribution options are entitled to have a paper copy
mailed
to them via first class mail by calling the customer service desk and
indicating
such. The Securities Administrator shall have the right to change the
way such
statements are distributed in order to make such distribution more convenient
and/or more accessible to the above parties and the Securities Administrator
shall provide timely and adequate notification to all above parties regarding
any such changes.
In
the case of information furnished pursuant to subclauses (i) and (ii)
above, the
amounts shall be expressed as a dollar amount per Single Certificate
of the
relevant Class.
Within
a reasonable period of time after the end of each calendar year, the
Securities
Administrator shall furnish upon request to each Person who at any time
during
the calendar year was a Holder of a Regular Certificate a statement containing
the information set forth in subclauses (i) through (iii) above, aggregated
for
such calendar year or applicable portion thereof during which such person
was a
Certificateholder. Such obligation of the Securities Administrator shall
be
deemed to have been satisfied to the extent that substantially comparable
information shall be provided by the Securities Administrator pursuant
to any
requirements of the Code as from time to time are in force.
Within
a reasonable period of time after the end of each calendar year, the
Securities
Administrator shall furnish upon request to each Person who at any time
during
the calendar year was a Holder of a Residual Certificate a statement
setting
forth the amount, if any, actually distributed with respect to the Residual
Certificates, as appropriate, aggregated for such calendar year or applicable
portion thereof during which such Person was a Certificateholder.
The
Securities Administrator shall, upon request, furnish to each Certificateholder
during the term of this Agreement, such periodic, special, or other reports
or
information, whether or not provided for herein, as shall be reasonable
with
respect to the Certificateholder, as applicable, or otherwise with respect
to
the purposes of this Agreement, all such reports or information to be
provided
at the expense of the Certificateholder, in accordance with such reasonable
and
explicit instructions and directions as the Certificateholder may
provide.
On
each Distribution Date the Securities Administrator shall provide Bloomberg
Financial Markets, L.P. (“Bloomberg”) CUSIP level factors for each Class of
Certificates as of such Distribution Date, using a format and media mutually
acceptable to the Securities Administrator and Bloomberg.
SECTION
5.03. Servicer
Reports; P&I Advances.
(a) On
or before 12:00 noon New York time on the 18th calendar day of the month,
and if
the 18th calendar day is not a Business Day, the immediately following
Business
Day, the Servicer shall deliver to the Master Servicer and the Securities
Administrator by telecopy or electronic mail (or by such other means
as the
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 Servicer 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 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 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 the 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 Collection Account pursuant to Section 3.22 of this
Agreement
for distribution on such Distribution Date; provided, however, the Servicer
shall not be required to make P&I Advances with respect to Relief Act
Interest Shortfalls, or with respect to Prepayment Interest Shortfalls
in excess
of its obligations under Section 3.23. For purposes of the preceding
sentence,
the Monthly Payment on each Balloon Mortgage Loan with a delinquent Balloon
Payment is equal to the assumed monthly payment that would have been
due on the
related Due Date based on the original principal amortization schedule
for such
Balloon Mortgage Loan.
By
12:00 noon New York time on the Servicer Remittance Date, the 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 Mortgage Loans for the
related
Distribution Date either (i) from its own funds or (ii) from the 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 Collection Account that Amounts Held For Future Distribution
have
been, as permitted by this Section 5.03, used by the 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 Servicer
with respect to the Mortgage Loans. In addition, the 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 Servicer to make P&I Advances or to reimburse
itself for outstanding P&I Advances shall be appropriately reflected in the
Servicer’s records and replaced by the Servicer by deposit in the 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 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 Servicer to the Securities
Administrator on such date is less than the P&I Advances required to be made
by the Servicer for the related Distribution Date.
(c) The
obligation of the 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 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
Servicer that it has made a Nonrecoverable P&I Advance or a Nonrecoverable
Servicing Advance or that any proposed P&I Advance or Servicing Advance, if
made, would constitute a Nonrecoverable P&I Advance or Nonrecoverable
Servicing Advance, respectively, shall be evidenced by a certification
of a
Servicing Officer delivered to the Master Servicer.
(e) Subject
to and in accordance with the provisions of Article VIII, in the event
the
Servicer fails to make any required P&I Advance, then the Master Servicer
(in its capacity as successor servicer) or any other successor servicer
shall be
required to make such P&I Advance on the Distribution Date on which the
Servicer was required to make such Advance, subject to its determination
of
recoverability.
SECTION
5.04. Allocation
of Realized Losses.
(a) Prior
to the Determination Date, the Servicer shall determine as to each Mortgage
Loan
serviced by the 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 Servicer 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
Servicer 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, the 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 Certificates and to Net Swap Payments received from the
Swap
Provider under the Swap Agreement for that purpose; third,
to the Class M-11 Certificates, until the Certificate Principal Balance
of the
Class M-11 Certificates has been reduced to zero; fourth,
to the Class M-10 Certificates, until the Certificate Principal Balance
of the
Class M-10 Certificates has been reduced to zero; fifth,
to the Class M-9 Certificates, until the Certificate Principal Balance
of the
Class M-9 Certificates has been reduced to zero; sixth,
to the Class M-8 Certificates, until the Certificate Principal Balance
of the
Class M-8 Certificates has been reduced to zero; seventh,
to the Class M-7 Certificates, until the Certificate Principal Balance
of the
Class M-7 Certificates has been reduced to zero; eighth,
to the Class M-6 Certificates, until the Certificate Principal Balance
of the
Class M-6 Certificates has been reduced to zero; ninth,
to the Class M-5 Certificates, until the Certificate Principal Balance
of the
Class M-5 Certificates has been reduced to zero; tenth,
to the Class M-4 Certificates, until the Certificate Principal Balance
of the
Class M-4 Certificates has been reduced to zero; eleventh,
to the Class M-3 Certificates, until the Certificate Principal Balance
of the
Class M-3 Certificates has been reduced to zero, twelfth,
to the Class M-2 Certificates, until the Certificate Principal Balance
of the
Class M-2 Certificates has been reduced to zero; and thirteenth,
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
Certificate
shall be made by reducing the amount otherwise payable in respect thereof
pursuant to Section 5.01(c)(7)(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 the Servicer receives any Subsequent Recoveries
with
respect to a Mortgage Loan serviced by it, the Servicer shall deposit
such funds
into the Collection Account pursuant to Section 3.08. If, after taking
into
account such Subsequent Recoveries, the amount of a Realized Loss is
reduced,
the amount of such Subsequent Recoveries will be applied to increase
the
Certificate Principal Balance of the Class of Subordinate Certificates
with the
highest payment priority to which Realized Losses have been allocated,
but not
by more than the amount of Realized Losses previously allocated to that
Class of
Subordinate Certificates pursuant to this Section 5.04 and not previously
reimbursed to such Class of Subordinate Certificates with Net Monthly
Excess
Cashflow pursuant to Section 5.01(c)(7). 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)(7)(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.
(c) i) All
Realized Losses on the Group I Mortgage Loans shall be allocated on each
Distribution Date to REMIC I Regular Interest I-1-A through REMIC I Regular
Interest I-42-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 to REMIC
I Regular
Interest II-1-A through REMIC I Regular Interest II-42-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 Trustee, based solely on the instructions
of the
Securities Administrator, on each Distribution Date to the following
REMIC II
Regular Interests in the specified percentages, as follows: first, to
Uncertificated Interest payable to the REMIC II Regular Interest AA and
REMIC II
Regular Interest ZZ up to an aggregate amount equal to the REMIC II Interest
Loss Allocation Amount, 98.00% and 2.00%, respectively; second, to the
Uncertificated Balances of the REMIC II Regular Interest AA and REMIC
II Regular
Interest ZZ up to an aggregate amount equal to the REMIC II Principal
Loss
Allocation Amount, 98.00% and 2.00%, respectively; third, to the Uncertificated
Balances of REMIC II Regular Interest AA, REMIC II Regular Interest M-11
and
REMIC II Regular Interest ZZ, 98.00%, 1.00% and 1.00%, respectively,
until the
Uncertificated Balance of REMIC II Regular Interest M-11 has been reduced
to
zero; fourth, 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; fifth, 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; sixth,
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; seventh, 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; eighth, 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; ninth, 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; tenth, 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; eleventh, 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; twelfth, 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 thirteenth, 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 determined and
prepared by and at the direction of the Depositor pursuant to the following
paragraph and the Securities Administrator will have no duty or liability
for
any failure hereunder to determine or prepare any Additional Form 10-D
Disclosure, except as set forth in the next paragraph.
(ii) As
set forth on Exhibit G hereto, within 5 calendar days after the related
Distribution Date, (A) the parties to the ACE Securities Corp., Home
Equity Loan
Trust, Series 2006-ASAP1 transaction shall be required to provide to
the
Securities Administrator and Depositor, to the extent known by a responsible
officer thereof, in XXXXX-compatible form, or in such other form as otherwise
agreed upon by the Securities Administrator and such party, the form
and
substance of any Additional Form 10-D Disclosure, if applicable, together
with
an Additional Disclosure Notification in the form of Exhibit H hereto (an
“Additional Disclosure Notification”) and (B) the Depositor will approve, as to
form and substance, or disapprove, as the case may be, the inclusion
of the
Additional Form 10-D Disclosure on Form 10-D. The Depositor will be responsible
for any reasonable fees and expenses assessed or incurred by the Securities
Administrator in connection with including any Additional Form 10-D Disclosure
on Form 10-D pursuant to this paragraph.
(iii) After
preparing the Form 10-D, the Securities Administrator shall forward
electronically a draft copy of the Form 10-D to the Depositor (provided
that
such Form 10-D includes any Additional Form 10-D Disclosure) and the
Master
Servicer for review. Within two (2) Business Days of receipt but in no
event,
later than the Business Day prior to the date specified in the next sentence,
the Depositor and the Master Servicer shall notify the Securities Administrator
of any changes to or approval of such Form 10-D. No later than 2 Business
Days
prior to the 15th calendar day after the related Distribution Date, a
officer of
the Master Servicer shall sign the Form 10-D and return an electronic
or fax
copy of such signed Form 10-D (with an original executed hard copy to
follow by
overnight mail) to the Securities Administrator. If a Form 10-D cannot
be filed
on time or if a previously filed Form 10-D needs to be amended, the Securities
Administrator will follow the procedures set forth in Section 5.06(c)(ii).
Promptly (but no later than 1 Business Day) after filing with the Commission,
the Securities Administrator will make available on its internet website
a final
executed copy of each Form 10-D. Each party to this Agreement acknowledges
that
the performance by the Securities Administrator and the Master Servicer
of their
duties under this Section 5.06(a) related to the timely preparation,
execution
and filing of Form 10-D is contingent upon such parties strictly observing
all
applicable deadlines in the performance of their duties as set forth
in this
Agreement. Neither the Master Servicer nor the Securities Administrator
shall
have any liability for any loss, expense, damage, claim arising out of
or with
respect to any failure to properly prepare, execute and/or timely file
such Form
10-D, where such failure results from the Securities Administrator’s inability
or failure to receive, on a timely basis, any information from any other
party
hereto needed to prepare, arrange for execution or file such Form 10-D,
not
resulting from its own negligence, bad faith or willful misconduct.
(b) (i) Within
four (4) Business Days after the occurrence of an event requiring disclosure
on
Form 8-K (each such event, a “Reportable Event”), and if requested by the
Depositor, the Securities Administrator shall prepare and file on behalf
of the
Trust a Form 8-K, as required by the Exchange Act, provided that the
Depositor
shall file the initial Form 8-K in connection with the issuance of the
Certificates. Any disclosure or information related to a Reportable Event
or
that is otherwise required to be included on Form 8-K (“Form 8-K Disclosure
Information”) shall be determined and prepared by and at the direction of the
Depositor pursuant to the following paragraph and the Securities Administrator
will have no duty or liability for any failure hereunder to determine
or prepare
any Form 8-K Disclosure Information or any Form 8-K, except as set forth
in the
next paragraph.
(ii) As
set forth on Exhibit G hereto, for so long as the Trust is subject to
the
Exchange Act reporting requirements, no later than 12:00 noon New York
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-ASAP1
transaction shall be required to provide to the Securities Administrator
and
Depositor, to the extent known by a responsible officer thereof, in
XXXXX-compatible form, or in such other form as otherwise agreed upon
by the
Securities Administrator and such party, the form and substance of any
Form 8-K
Disclosure Information, if applicable, together with an Additional Disclosure
Notification and (ii) the Depositor will approve, as to form and substance,
or
disapprove, as the case may be, the inclusion of the Form 8-K Disclosure
Information. The Depositor will be responsible for any reasonable fees
and
expenses assessed or incurred by the Securities Administrator in connection
with
including any Form 8-K Disclosure Information on Form 8-K pursuant to
this
paragraph.
(iii) After
preparing the Form 8-K, the Securities Administrator shall forward
electronically a draft copy of the Form 8-K to the Master Servicer and
the
Depositor for review. No later than the Business Day prior to the date
specified
in the next sentence, the Depositor and the Master Servicer shall notify
the
Securities Administrator of any changes to or approval of such Form 8-K.
No
later than 12:00 noon New York time on the 4th Business Day after the
Reportable
Event, an officer of the Master Servicer shall sign the Form 8-K and
return an
electronic or fax copy of such signed Form 8-K (with an original executed
hard
copy to follow by overnight mail) to the Securities Administrator. If
a Form 8-K
cannot be filed on time or if a previously filed Form 8-K needs to be
amended,
the Securities Administrator will follow the procedures set forth in
Section
5.06(c)(ii). Promptly (but no later than 1 Business Day) after filing
with the
Commission, the Securities Administrator will, make available on its
internet
website a final executed copy of each Form 8-K that has been prepared
and filed
by the Securities Administrator. The parties to this Agreement acknowledge
that
the performance by the Master Servicer and the Securities Administrator
of their
duties under this Section 5.06(b) related to the timely preparation,
execution
and filing of Form 8-K is contingent upon such parties strictly observing
all
applicable deadlines in the performance of their duties under this Agreement.
Neither the Master Servicer nor the Securities Administrator shall have
any
liability for any loss, expense, damage, claim arising out of or with
respect to
any failure to properly prepare, execute and/or timely file such Form
8-K, where
such failure results from the Securities Administrator’s inability or failure to
receive, on a timely basis, any information from any other party hereto
needed
to prepare, 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 notify the Depositor. In the case of Form 10-D and 10-K, the
parties to
this Agreement and the Servicer will cooperate to prepare and file a
Form 12b-25
and a 10-DA and 10-KA as applicable, pursuant to Rule 12b-25 of the Exchange
Act. In the case of Form 8-K, the Securities Administrator will, upon
receipt of
all required Form 8-K Disclosure Information and upon the approval and
direction
of the Depositor, include such disclosure information on the next Form
10-D. In
the event that any previously filed Form 8-K, 10-D or 10-K needs to be
amended
and such amendment includes any Additional Form 10-D Disclosure, any
Additional
Form 10-K Disclosure or any Form 8-K Disclosure Information or any amendment
to
such disclosure, the Securities Administrator will notify the Depositor
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
an officer
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) Within
90 (including the 90th
day) days after the end of each fiscal year of the Trust or such earlier
date as
may be required by the Exchange Act (the “10-K Filing Deadline”) (it being
understood that the fiscal year for the Trust ends on December 31st of
each
year), commencing in March 2007, the Securities Administrator shall prepare
and
file on behalf of the Trust a Form 10-K, in form and substance as required
by
the Exchange Act. Each such Form 10-K shall include the following items,
in each
case to the extent they have been delivered to the Securities Administrator
within the applicable time frames set forth in this Agreement, (i) an
annual
compliance statement for the Servicer, each Additional Servicer, the
Master
Servicer and the Securities Administrator and any Servicing Function
Participant
(other than any Subcontractors) engaged by such parties (each, a “Reporting
Servicer”) as described under Section 3.17 and Section 4.15, (ii)(A) the annual
reports on assessment of compliance with servicing criteria for each
Reporting
Servicer, as described under Section 3.18 and Section 4.16, and (B) if
each
Reporting Servicer’s report on assessment of compliance with servicing criteria
described under Section 3.18 and Section 4.16 identifies any material
instance
of noncompliance, disclosure identifying such instance of noncompliance,
or if
each Reporting Servicer’s report on assessment of compliance with servicing
criteria described under Section 3.18 and Section 4.16 is not included
as an
exhibit to such Form 10-K, disclosure that such report is not included
and an
explanation why such report is not included, (iii)(A) the registered
public
accounting firm attestation report for each Reporting Servicer, as described
under Section 3.18 and Section 4.17, and (B) if any registered public
accounting
firm attestation report described under Section 3.18 and Section 4.17
identifies
any material instance of noncompliance, disclosure identifying such instance
of
noncompliance, or if any such registered public accounting firm attestation
report is not included as an exhibit to such Form 10-K, disclosure that
such
report is not included and an explanation why such report is not included,
and
(iv) a Xxxxxxxx-Xxxxx Certification (“Xxxxxxxx-Xxxxx Certification”) as
described in Section 3.20 and Section 4.18. Any disclosure or information
in
addition to (i) through (iv) above that is required to be included on
Form 10-K
(“Additional Form 10-K Disclosure”) shall be determined and prepared by and at
the direction of the Depositor pursuant to the following paragraph and
the
Securities Administrator will have no duty or liability for any failure
hereunder to determine or prepare any Additional Form 10-K Disclosure,
except as
set forth in the next paragraph.
(ii) As
set forth on Exhibit G hereto, no later than March 15 of each year that
the
Trust is subject to the Exchange Act reporting requirements, commencing
in 2007,
(i) parties to the ACE Securities Corp., Home Equity Loan Trust, Series
2006-ASAP1 transaction shall be required to provide to the Securities
Administrator and Depositor, to the extent known, by a responsible officer
thereof, in XXXXX-compatible form, or in such other form as otherwise
agreed
upon by the Securities Administrator and such party, the form and substance
of
any Additional Form 10-K Disclosure, if applicable, together with an
Additional
Disclosure Notification and (ii) the Depositor will approve, as to form
and
substance, or disapprove, as the case may be, the inclusion of the Additional
Form 10-K Disclosure on Form 10-K. The Depositor will be responsible
for any
reasonable fees and expenses assessed or incurred by the Securities
Administrator in connection with including any Additional Form 10-K Disclosure
on Form 10-K pursuant to this paragraph.
(iii) After
preparing the Form 10-K, the Securities Administrator shall forward
electronically a draft copy of the Form 10-K to the Master Servicer and
the
Depositor for review. If the Form 10-K contains additional reporting
items, the
Form 10-K will be sent to the Depositor for review and approval prior
to the
Master Servicer’s signature. Within three (3) Business Days of receipt, but in
no event later than March 25th
of each year that the Trust is subject to the Exchange Act reporting
requirements, the Depositor and the Master Servicer shall notify the
Securities
Administrator of any changes to or approval of such Form 10-K. No later
than
12:00 noon New York time
on the 4th
Business Day prior to the 10-K Filing Deadline, a senior officer of the
Master
Servicer in charge of the master servicing function shall sign the Form
10-K and
return an electronic or fax copy of such signed Form 10-K (with an original
executed hard copy to follow by overnight mail) to the Securities Administrator.
If a Form 10-K cannot be filed on time or if a previously filed Form
10-K needs
to be amended, the Securities Administrator will follow the procedures
set forth
in Section 5.06(c)(ii). Promptly (but no later than 1 Business Day) after
filing
with the Commission, the Securities Administrator will make available
on its
internet website a final executed copy of each Form 10-K. The parties
to this
Agreement acknowledge that the performance by the Master Servicer and
the
Securities Administrator of their respective duties under this Section
5.06(d)
related to the timely preparation, execution and filing of Form 10-K
is
contingent upon such parties (and any Additional Servicer or Servicing
Function
Participant (other than any Subcontractor)) strictly observing all applicable
deadlines in the performance of their duties under this Section 5.06(d),
Section
3.17, Section 3.18, Section 3.20, 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.
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 deposit into
the
Supplemental Interest Trust amounts distributable to the Swap Provider
by the
Supplemental Interest Trust pursuant to Section 5.01(c)(2), (3), (5) and
(6) and Section 5.01(c)(7)(vii)
of this Agreement. On each Distribution Date, the Securities Administrator
shall
distribute any such amounts to the Swap Provider pursuant to the Swap
Agreement,
first to pay any Net Swap Payment owed to the Swap Provider for such
Distribution Date, and second to pay any Swap Termination Payment owed
to the
Swap Provider not due to a Swap Provider Trigger Event.
(c) On
each Distribution Date, the Securities Administrator shall deposit into
the
Supplemental Interest Trust amounts received by it from the Swap Provider
and
shall distribute from the Supplemental Interest Trust an amount equal
to the
amount of any Net Swap Payment received from the Swap Provider under
the Swap
Agreement in the order of priority set forth in Section 5.01(d).
(d) 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 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 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 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 Certificates.
(e) For
federal income tax purposes, amounts paid to the Supplemental Interest
Trust on
each Distribution Date pursuant to Section 5.01(c)(2), (3), (5) and (6) and
Section 5.01(c)(7)(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.
(f) The
Securities Administrator shall treat the Holders of Certificates (other
than the
Class P, Class CE and Class R Certificates) as having entered into a
notional
principal contract with respect to the Holders of the Class CE Certificates.
Pursuant to each such notional principal contract, all Holders of Certificates
(other than the Class P, Class CE and Class R Certificates) shall be
treated as
having agreed to pay, on each Distribution Date, to the Holder of the
Class CE
Certificates an aggregate amount equal to the excess, if any, of (i)
the amount
payable on such Distribution Date on the REMIC III 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 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, Class P and Class R 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, Class P and Class R 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 REMIC III 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 Class R 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.
(g) 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 $20,000.
(h) In
the event that the Swap Agreement is terminated prior to the Distribution
Date
in December 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
of amounts
described in Section 5.07(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 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.
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 Servicer
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 Certificates and Class P Certificates will be issued in definitive,
fully registered form (each, a “Definitive Certificate”).
(d) The
Trustee, the Servicer, the Securities Administrator, the Master Servicer
and the
Depositor may for all purposes (including the making of payments due
on the
Book-Entry Certificates) deal with the Depository as the authorized
representative of the Certificate Owners with respect to the Book-Entry
Certificates for the purposes of exercising the rights of Certificateholders
hereunder. The rights of Certificate Owners with respect to the Book-Entry
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 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. Upon surrender to the Securities Administrator of
the
Book-Entry Certificates by the Book-Entry Custodian or the Depository,
as
applicable, 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 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. None of the Depositor, the Servicer, 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 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 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 Servicer),
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 Servicer 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 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 Servicer
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 Servicer, 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
Servicer,
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 shall certify
or 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 Servicer, 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) ii)
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 Servicer, the Trustee, the Master Servicer, the Securities
Administrator and any agent of any of them may treat the Person in whose
name
any Certificate is registered as the owner of such Certificate for the
purpose
of receiving distributions pursuant to Section 4.01 and for all other
purposes
whatsoever, and none of the Depositor, the Servicer, the Trustee, the
Master
Servicer, the Securities Administrator or any agent of any of them shall
be
affected by notice to the contrary.
SECTION
6.05. Certain
Available Information.
On
or prior to the date of the first sale of any Class CE 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 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 Servicer
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 SERVICER AND THE MASTER SERVICER
SECTION
7.01. Liability
of the Depositor, the Servicer and the Master Servicer.
The
Depositor, the 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,
Servicer and Master Servicer and undertaken hereunder by the Depositor,
the
Servicer and the Master Servicer herein.
SECTION
7.02. Merger
or Consolidation of the Depositor, the Servicer 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,
the
Servicer 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, the Master Servicer will keep in full effect
its
existence, rights and franchises as a national banking association. The
Depositor, the 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, the 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, the Servicer or the Master Servicer shall be
a party, or
any Person succeeding to the business of the Depositor, the Servicer
or the
Master Servicer, shall be the successor of the Depositor, the 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 the Servicer or the Master Servicer shall meet the eligibility
requirements set forth in clauses (i) and (iii) of the last paragraph
of Section
8.02(a) or Section 7.06, as applicable.
SECTION
7.03. Limitation
on Liability of the Depositor, the Servicer, the Master Servicer and
Others.
None
of the Depositor, the Servicer, the Securities Administrator, the Master
Servicer or any of the directors, officers, employees or agents of the
Depositor, the Servicer or the Master Servicer shall be under any liability
to
the Trust Fund or the Certificateholders for any action taken or for
refraining
from the taking of any action in good faith pursuant to this Agreement,
or for
errors in judgment; provided, however, that this provision shall not
protect the
Depositor, the 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. The Depositor, the Servicer, the Securities Administrator,
the Master
Servicer and any director, officer, employee or agent of the Depositor,
the
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 Servicer, the Securities Administrator, the Master Servicer and any
director, officer, employee or agent of the Depositor, the Servicer,
the
Securities Administrator or the Master Servicer shall be indemnified
and held
harmless by the Trust Fund against any loss, liability or expense incurred
in
connection with any legal action relating to this Agreement, the Certificates
or
any Credit Risk Management Agreement or any loss, liability or expense
incurred
other than by reason of willful misfeasance, bad faith or gross negligence
in
the performance of duties hereunder or by reason of reckless disregard
of
obligations and duties hereunder. None of the Depositor, the 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,
the 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 Servicer, the
Securities Administrator and the Master Servicer shall be entitled to
be
reimbursed therefor from the Collection Account or the Distribution Account
as
and to the extent provided in Article III and Article IV, any such right
of
reimbursement being prior to the rights of the Certificateholders to
receive any
amount in the Collection Account and the Distribution Account.
Notwithstanding
anything to the contrary contained herein, the Servicer shall not 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 the Servicer, except to the extent expressly provided
herein, or the Credit Risk Management Agreement.
SECTION
7.04. Limitation
on Resignation of the Servicer.
(i) Except
as expressly provided herein, the 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,
the 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 the Servicer shall not limit
the
obligation of the Servicer to service the related Mortgage Loans pursuant
to the
terms and conditions of this Agreement. The 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. No such
resignation shall become effective unless evidenced by an Opinion of
Counsel to
such effect obtained at the expense of the Servicer and delivered to
the Trustee
and the Rating Agencies.
Notwithstanding
anything to the contrary, no resignation of the Servicer shall become
effective
until the Master Servicer or a successor servicer shall have assumed
the
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, the Servicer shall not 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 the Servicer
hereunder.
The foregoing prohibition on assignment shall not prohibit the Servicer
from
designating a Sub-Servicer as payee of any indemnification amount payable
to the
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.
(c) Notwithstanding
anything to the contrary herein, the Servicer may pledge or assign as
collateral
all its rights, title and interest under this Agreement to a lender (the
“Servicing Rights Lender”), provided, that:
(i) the
Servicing Rights Lender’s rights are subject to this Agreement; and
(ii) the
Servicer shall remain subject to termination as servicer under this Agreement
pursuant to the terms hereof.
SECTION
7.05. Limitation
on Resignation of the Master Servicer.
The
Master Servicer shall not resign from the obligations and duties hereby
imposed
on it except upon determination that its duties hereunder are no longer
permissible under applicable law. Any such determination pursuant to
the
preceding sentence permitting the resignation of the Master Servicer
shall be
evidenced by an Opinion of Counsel to such effect obtained at the expense
of the
Master Servicer and delivered to the Trustee and the Rating Agencies.
No
resignation of the Master Servicer shall become effective until the Trustee
or a
successor Master Servicer meeting the criteria specified in Section 7.06
shall
have assumed the Master Servicer’s responsibilities, duties, liabilities (other
than those liabilities arising prior to the appointment of such successor)
and
obligations under this Agreement.
SECTION
7.06. Assignment
of Master Servicing.
The
Master Servicer may sell and assign its rights and delegate its duties
and
obligations in its entirety as Master Servicer under this Agreement;
provided,
however, that: (i) the purchaser or transferee accept in writing such
assignment
and delegation and assume the obligations of the Master Servicer hereunder
(a)
shall have a net worth of not less than $25,000,000 (unless otherwise
approved
by each Rating Agency pursuant to clause (ii) below); (b) shall be reasonably
satisfactory to the Trustee (as evidenced in a writing signed by the
Trustee);
and (c) shall execute and deliver to the Trustee an agreement, in form
and
substance reasonably satisfactory to the Trustee, which contains an assumption
by such Person of the due and punctual performance and observance of
each
covenant and condition to be performed or observed by it as master servicer
under this Agreement, any custodial agreement from and after the effective
date
of such agreement; (ii) each Rating Agency shall be given prior written
notice
of the identity of the proposed successor to the Master Servicer and
each Rating
Agency’s rating of the Certificates in effect immediately prior to such
assignment, sale and delegation will not be downgraded, qualified or
withdrawn
as a result of such assignment, sale and delegation, as evidenced by
a letter to
such effect delivered to the Master Servicer and the Trustee; and (iii)
the
Master Servicer assigning and selling the master servicing shall deliver
to the
Trustee an Officer’s Certificate and an Opinion of Independent counsel, each
stating that all conditions precedent to such action under this Agreement
have
been completed and such action is permitted by and complies with the
terms of
this Agreement. No such assignment or delegation shall affect any liability
of
the Master Servicer arising out of acts or omissions prior to the effective
date
thereof.
SECTION
7.07. Rights
of the Depositor in Respect of the Servicer and the Master
Servicer.
Each
of the Master Servicer and the Servicer shall afford (and any Sub-Servicing
or
Sub-Contracting Agreement shall provide that each Sub-Servicer or Subcontractor,
as applicable shall afford) the Depositor and the Trustee, upon reasonable
notice, during normal business hours, access to all records maintained
by the
Master Servicer or the Servicer (and any such Sub-Servicer or Subcontractor,
as
applicable) in respect of the Servicer’s rights and obligations hereunder and
access to officers of the Master Servicer or the Servicer (and those
of any such
Sub-Servicer or Subcontractor, as applicable) responsible for such obligations,
and the Master Servicer shall have access to all such records maintained
by the
Servicer and any Sub-Servicers or Subcontractors. Upon request, each
of the
Master Servicer and the Servicer shall furnish to the Depositor and the
Trustee
its (and any such Sub-Servicer’s or Subcontractor’s) most recent financial
statements and such other information relating to the Master Servicer’s or the
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 that the Master Servicer or the Servicer informs the Depositor
and the
Trustee that such information is not otherwise available to the public,
the
Depositor and the Trustee shall not disseminate any information obtained
pursuant to the preceding two sentences without the Master Servicer’s or the
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 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 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
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 Servicer to collect, create, collate or
otherwise
generate any information that it does not generate in its usual course
of
business. The Servicer shall not be required to make copies of or ship
documents
to any party unless provisions have been made for the reimbursement of
the costs
thereof. The Depositor may, but is not obligated to, enforce the obligations
of
the Master Servicer and the Servicer under this Agreement and may, but
is not
obligated to, perform, or cause a designee to perform, any defaulted
obligation
of the Master Servicer or the Servicer under this Agreement or exercise
the
rights of the Master Servicer or the Servicer under this Agreement; provided
that neither the Master Servicer nor the Servicer shall be relieved of
any of
its obligations under this Agreement by virtue of such performance by
the
Depositor or its designee. The Depositor shall not have any responsibility
or
liability for any action or failure to act by the Master Servicer or
the
Servicer and is not obligated to supervise the performance of the Master
Servicer or the 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 Servicer 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 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.
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 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.
ARTICLE
VIII
DEFAULT
SECTION
8.01. Servicer
Events of Default.
(a) “Servicer
Event of Default,” wherever used herein, means any one of the following
events:
(i) any
failure by the 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) required to be made by the Servicer under the terms
of the
Certificates and this Agreement which continues unremedied for a period
of one
Business Day after the date upon which written notice of such failure,
requiring
the same to be remedied, shall have been given to the Servicer by the
Depositor
or the Trustee (in which case notice shall be provided by telecopy),
or to the
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 the Servicer duly to observe or perform in any
material
respect any other of the covenants or agreements on the part of the Servicer
contained in this Agreement, or the material breach by the Servicer of
any
representation and warranty contained in Section 2.05, which continues
unremedied for a period of thirty (30) days after the date on which written
notice of such failure, requiring the same to be remedied, shall have
been given
to the Servicer by the Depositor or the Trustee or to the 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 the 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
the
Servicer and such decree or order shall have remained in force undischarged
or
unstayed for a period of ninety (90) days; or
(iv) the
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) the
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 the Servicer to duly perform, within the required time period, its
obligations under Sections 3.17, 3.18 or 3.20; or
(vii) any
failure of the Servicer to make any P&I Advance on any Servicer Remittance
Date required to be made from its own funds pursuant to Section 5.03
which
continues unremedied until 3:00 p.m. New York time on the Business Day
immediately following the Servicer Remittance Date; or
(viii) failure
of the Servicer to maintain at least an “average” rating from the Rating
Agencies.
If
a Servicer Event of Default described in clauses (i) through (vi) or
(viii) of
this Section shall occur, then, and in each and every such case, so long
as such
Servicer Event of Default shall not have been remedied, the Depositor
or the
Trustee may, and at the written direction of the Holders of Certificates
entitled to at least 51% of Voting Rights, the Trustee shall, by notice
in
writing to the defaulting Servicer (and to the Depositor if given by
the Trustee
or to the Trustee if given by the Depositor) with a copy to the Master
Servicer
and each Rating Agency, terminate all of the rights and obligations of
the
defaulting Servicer in its capacity as Servicer under this Agreement,
to the
extent permitted by law, and in and to the Mortgage Loans and the proceeds
thereof. If a Servicer Event of Default described in clause (vii) hereof
shall
occur, the Trustee shall, by notice in writing to the defaulting Servicer,
the
Depositor and the Master Servicer, terminate all of the rights and obligations
of the defaulting Servicer in its capacity as Servicer under this Agreement
and
in and to the Mortgage Loans and the proceeds thereof. Subject to Section
8.02,
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 Mortgage Loans or otherwise, shall pass to and be vested in the Master
Servicer pursuant to and under this Section, and, without limitation,
the Master
Servicer is hereby authorized and empowered, as attorney-in-fact or otherwise,
to execute and deliver, on behalf of and at the expense of the defaulting
Servicer, any and all documents and other instruments and to do or accomplish
all other acts or things necessary or appropriate to effect the purposes
of such
notice of termination, whether to complete the transfer and endorsement
or
assignment of the Mortgage Loans and related documents, or otherwise.
The
defaulting Servicer agrees promptly (and in any event no later than ten
(10)
Business Days subsequent to such notice) to provide the Master Servicer
with all
documents and records requested by it to enable it to assume the defaulting
Servicer’s functions under this Agreement, and to cooperate with the Master
Servicer in effecting the termination of the defaulting Servicer’s
responsibilities and rights under this Agreement, including, without
limitation,
the transfer within one (1) Business Day to the Master Servicer for
administration by it of all cash amounts which at the time shall be or
should
have been credited by the defaulting Servicer to the 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, notwithstanding any such termination,
with respect to events occurring prior to such termination). Reimbursement
of
xxxxxxxxxxxx X&X Advances, Servicing Advances and accrued and unpaid
Servicing Fees shall be made on a first in, first out (“FIFO”) basis no later
than the Servicer Remittance Date. For purposes of this Section 8.01(a),
the
Trustee shall not be deemed to have knowledge of a Servicer Event of
Default
unless a Responsible Officer of the Trustee assigned to and working in
the
Trustee’s Corporate Trust Office has actual knowledge thereof or unless written
notice of any event which is in fact such a Servicer Event of Default
is
received by the Trustee at its Corporate Trust Office and such notice
references
the Certificates, the Trust or this Agreement. The Trustee shall promptly
notify
the Master Servicer and the Rating Agencies of the occurrence of a Servicer
Event of Default of which it has knowledge as provided above.
The
Master Servicer shall be entitled to be reimbursed by the defaulting
Servicer
(or from amounts on deposit in the Distribution Account if the defaulting
Servicer is unable to fulfill its obligations hereunder) for all reasonable
out-of-pocket or third party costs associated with the transfer of servicing
from the defaulting Servicer, including without limitation, any reasonable
out-of-pocket or third party costs or expenses associated with the complete
transfer of all servicing data and the completion, correction or manipulation
of
such servicing data as may be required by the Master Servicer to correct
any
errors or insufficiencies in the servicing data or otherwise to enable
the
Master Servicer to service the 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 after such other period as set forth in this
Agreement, requiring the same to be remedied, shall have been given to
the
Master Servicer by the Depositor or the Trustee or to the Master Servicer,
the
Depositor and the Trustee by the Holders of Certificates entitled to
at least
25% of the Voting Rights; or
(ii) a
decree or order of a court or agency or supervisory authority having
jurisdiction in the premises in an involuntary case under any present
or future
federal or state bankruptcy, insolvency or similar law or the appointment
of a
conservator or receiver or liquidator in any insolvency, readjustment
of debt,
marshalling of assets and liabilities or similar proceeding, or for the
winding-up or liquidation of its affairs, shall have been entered against
the
Master Servicer and such decree or order shall have remained in force
undischarged or unstayed for a period of 90 days; or
(iii) the
Master Servicer shall consent to the appointment of a conservator or
receiver or
liquidator in any insolvency, readjustment of debt, marshalling of assets
and
liabilities or similar proceedings of or relating to it or of or relating
to all
or substantially all of its property; or
(iv) the
Master Servicer shall admit in writing its inability to pay its debts
generally
as they become due, file a petition to take advantage of any applicable
insolvency or reorganization statute, make an assignment for the benefit
of its
creditors, or voluntarily suspend payment of its obligations; or
(v) failure
by the Master Servicer to duly perform, within the required time period,
its
obligations under Sections 4.15, 4.16, 4.17 or 4.18.
If
a Master Servicer Event of Default shall occur, then, and in each and
every such
case, so long as such Master Servicer Event of Default shall not have
been
remedied, the Depositor or the Trustee may, and at the written direction
of the
Holders of Certificates entitled to at least 51% of Voting Rights, the
Trustee
shall, by notice in writing to the Master Servicer (and to the Depositor
if
given by the Trustee or to the Trustee if given by the Depositor) with
a copy to
each Rating Agency, terminate all of the rights and obligations of the
Master
Servicer in its capacity as Master Servicer under this Agreement, to
the extent
permitted by law, and in and to the Mortgage Loans and the proceeds thereof.
On
or after the receipt by the Master Servicer of such written notice, all
authority and power of the Master Servicer under this Agreement, whether
with
respect to the Certificates (other than as a Holder of any Certificate)
or the
Mortgage Loans or otherwise including, without limitation, the compensation
payable to the Master Servicer under this Agreement, shall pass to and
be vested
in the Trustee pursuant to and under this Section, and, without limitation,
the
Trustee is hereby authorized and empowered, as attorney-in-fact or otherwise,
to
execute and deliver, on behalf of and at the expense of the Master Servicer,
any
and all documents and other instruments and to do or accomplish all other
acts
or things necessary or appropriate to effect the purposes of such notice
of
termination, whether to complete the transfer and endorsement or assignment
of
the Mortgage Loans and related documents, or otherwise. The Master Servicer
agrees promptly (and in any event no later than ten Business Days subsequent
to
such notice) to provide the Trustee with all documents and records requested
by
it to enable it to assume the Master Servicer’s functions under this Agreement,
and to cooperate with the Trustee in effecting the termination of the
Master
Servicer’s responsibilities and rights under this Agreement (provided, however,
that the Master Servicer shall continue to be entitled to receive all
amounts
accrued or owing to it under this Agreement on or prior to the date of
such
termination and shall continue to be entitled to the benefits of Section
7.03,
notwithstanding any such termination, with respect to events occurring
prior to
such termination). For purposes of this Section 8.01(b), the Trustee
shall not
be deemed to have knowledge of a Master Servicer Event of Default unless
a
Responsible Officer of the Trustee assigned to and working in the Trustee’s
Corporate Trust Office has actual knowledge thereof or unless written
notice of
any event which is in fact such a Master Servicer Event of Default is
received
by the Trustee and such notice references the Certificates, the Trust
or this
Agreement. The Trustee shall promptly notify the Rating Agencies of the
occurrence of a Master Servicer Event of Default of which it has knowledge
as
provided above.
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.
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.
Neither
the Trustee nor any other successor master servicer shall be deemed to
be in
default hereunder by reason of any failure to make, or any delay in making,
any
distribution hereunder or any portion thereof or any failure to perform,
or any
delay in performing, any duties or responsibilities hereunder, in either
case
caused by the failure of the Master Servicer to deliver or provide, or
any delay
in delivering or providing, any cash, information, documents or records
to
it.
SECTION
8.02. Master
Servicer to Act; Appointment of Successor.
(a) On
and after the time the Servicer receives a notice of termination, the
Master
Servicer shall be the successor in all respects to the Servicer in its
capacity
as the Servicer under this Agreement and the transactions set forth or
provided
for herein, and all the responsibilities, duties and liabilities relating
thereto and arising thereafter shall be assumed by the Master Servicer
(except
for any representations or warranties of the Servicer under this Agreement,
the
responsibilities, duties and liabilities contained in Section 2.03 and
the
obligation to deposit amounts in respect of losses pursuant to Section
3.10(b))
by the terms and provisions hereof including, without limitation, the
Servicer’s
obligations to make P&I Advances pursuant to Section 5.03 of this Agreement;
provided, however, that if the Master Servicer is prohibited by law or
regulation from obligating itself to make advances regarding delinquent
mortgage
loans, then the Master Servicer shall not be obligated to make P&I Advances
pursuant to Section 5.03 of this Agreement; and provided further, that
any
failure to perform such duties or responsibilities caused by the Servicer’s
failure to provide information required by Section 8.01 shall not be
considered
a default by the Master Servicer as successor to the Servicer hereunder;
provided, however, that (1) it is understood and acknowledged by the
parties
hereto that there will be a period of transition (not to exceed 120 days)
before
the actual servicing functions can be fully transferred to the Master
Servicer
or any successor servicer appointed in accordance with the following
provisions
and (2) any failure to perform such duties or responsibilities caused
by the
Servicer’s failure to provide information required by Section 8.01 of this
Agreement shall not be considered a default by the Master Servicer as
successor
to the Servicer. As compensation therefor, the Master Servicer shall
be entitled
to the Servicing Fee and all funds relating to the 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 may, if it shall be unwilling to so act,
or
shall, if it is unable to so act promptly appoint or petition a court
of
competent jurisdiction to appoint, a Person that satisfies the eligibility
criteria set forth below as the successor to the terminated Servicer
under this
Agreement in the assumption of all or any part of the responsibilities,
duties
or liabilities of the terminated Servicer under this Agreement.
Notwithstanding
anything herein to the contrary, in no event shall the Trustee or the
Master
Servicer be liable for any Servicing Fee or for any differential in the
amount
of the Servicing Fee paid hereunder and the amount necessary to induce
any
successor servicer to act as successor servicer under this Agreement
and the
transactions set forth or provided for herein.
Any
successor servicer appointed under this Agreement must (i) be an established
mortgage loan servicing institution that is a Xxxxxx Xxx and Xxxxxxx
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 Servicer (other than liabilities of the Servicer hereunder
incurred prior to termination of the 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) and incurred by the Trustee,
the
Master Servicer and any successor servicer under paragraph (b)(2) below)
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 the Servicer under this Agreement shall
be
effective until the assumption by the successor of all of the 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
Mortgage Loans as it and such successor shall agree; provided, however,
that no
such compensation shall be in excess of that permitted the 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 Servicer under
this
Agreement, the Master Servicer shall act in such capacity as hereinabove
provided.
SECTION
8.03. Notification
to Certificateholders.
(a) Upon
any termination of the Servicer or the Master Servicer pursuant to Section
8.01(a) or (b) or any appointment of a successor to the Servicer or the
Master
Servicer pursuant to Section 8.02, the Trustee shall give prompt written
notice
thereof to the Certificateholders at their respective addresses appearing
in the
Certificate Register.
(b) Not
later than the later of sixty (60) days after the occurrence of any event,
which
constitutes or which, with notice or lapse of time or both, would constitute
a
Servicer Event of Default or a Master Servicer Event of Default or five
(5) days
after a Responsible Officer of the Trustee becomes aware of the occurrence
of
such an event, the Trustee shall transmit by mail to all Holders of Certificates
notice of each such occurrence, unless such default or Servicer Event
of Default
or Master Servicer Event of Default shall have been cured or
waived.
SECTION
8.04. Waiver
of Events of Default.
The
Holders representing at least 66% of the Voting Rights evidenced by all
Classes
of Certificates affected by any default, Servicer Event of Default or
Master
Servicer Event of Default hereunder may waive such default, Servicer
Event of
Default or Master Servicer Event of Default; provided, however, that
a Servicer
Event of Default under clause (i) or (vii) of Section 8.01(a) 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 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:
(i) The
Trustee and the Securities Administrator may request and rely upon and
shall be
protected in acting or refraining from acting upon any resolution, Officers’
Certificate, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal,
bond or
other paper or document reasonably believed by it to be genuine and to
have been
signed or presented by the proper party or parties;
(ii) The
Trustee and the Securities Administrator may consult with counsel of
its
selection and any advice of such counsel or any Opinion of Counsel shall
be full
and complete authorization and protection in respect of any action taken
or
suffered or omitted by it hereunder in good faith and in accordance with
such
advice or Opinion of Counsel;
(iii) Neither
the Trustee nor the Securities Administrator shall be under any obligation
to
exercise any of the trusts or powers vested in it by this Agreement or
to
institute, conduct or defend any litigation hereunder or in relation
hereto at
the request, order or direction of any of the Certificateholders, pursuant
to
the provisions of this Agreement, unless such Certificateholders shall
have
offered to the Trustee or the Securities Administrator, as the case may
be,
reasonable security or indemnity satisfactory to it against the costs,
expenses
and liabilities which may be incurred therein or thereby; nothing contained
herein shall, however, relieve the Trustee of the obligation, upon the
occurrence of a Master Servicer Event of Default (which has not been
cured or
waived), to exercise such of the rights and powers vested in it by this
Agreement, and to use the same degree of care and skill in their exercise
as a
prudent person would exercise or use under the circumstances in the conduct
of
such person’s own affairs;
(iv) Neither
the Trustee nor the Securities Administrator shall be liable for any
action
taken, suffered or omitted by it in good faith and believed by it to
be
authorized or within the discretion or rights or powers conferred upon
it by
this Agreement;
(v) Prior
to the occurrence of a Master Servicer Event of Default hereunder and
after the
curing or waiver of all Master Servicer Events of Default which may have
occurred with respect to the Trustee and at all times with respect to
the
Securities Administrator, neither the Trustee nor the Securities Administrator
shall be bound to make any investigation into the facts or matters stated
in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or document, unless
requested in writing to do so by the Holders of Certificates entitled
to at
least 25% of the Voting Rights; provided, however, that if the payment
within a
reasonable time to the Trustee or the Securities Administrator of the
costs,
expenses or liabilities likely to be incurred by it in the making of
such
investigation is, in the opinion of the Trustee or the Securities Administrator,
as applicable, not reasonably assured to the Trustee or the Securities
Administrator by such Certificateholders, the Trustee or the Securities
Administrator, as applicable, may require reasonable indemnity satisfactory
to
it against such expense, or liability from such Certificateholders as
a
condition to taking any such action;
(vi) The
Trustee may execute any of the trusts or powers hereunder or perform
any duties
hereunder either directly or by or through agents or attorneys and the
Trustee
shall not be responsible for any misconduct or negligence on the part
of any
agent or attorney appointed with due care by it hereunder;
(vii) The
Trustee shall not be liable for any loss resulting from (a) the investment
of
funds held in the Collection 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
Trustee is hereby directed by the Depositor to execute the Swap Agreement
on
behalf of the Supplemental Interest Trust in the form presented to it
by the
Depositor and shall have no responsibility for the contents of the Swap
Agreement, including, without limitation, the representations and warranties
contained therein. Any funds payable by the Trustee on behalf of the
Supplemental Interest Trust under the Swap Agreement shall be paid from
funds of
the Supplemental Interest Trust in accordance with the terms and provisions
of
the Swap Agreement. Notwithstanding anything to the contrary contained
herein or
in the Swap Agreement, the Trustee shall not be required to make any
payments to
the counterparty under the Swap Agreement.
(d) None
of the Securities Administrator, the Master Servicer, the Servicer, 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)
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), 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 the Collection
Account
by the Servicer, other than with respect to the Securities Administrator
any
funds held by it or on behalf of the Trustee in accordance with Section
3.24 and
3.25.
SECTION
9.04. Trustee
and Securities Administrator May Own Certificates.
Each
of the Trustee and the Securities Administrator in its individual capacity
or
any other capacity may become the owner or pledgee of Certificates and
may
transact business with other interested parties and their Affiliates
with the
same rights it would have if it were not Trustee or the Securities
Administrator.
SECTION
9.05. Fees
and Expenses of Trustee and Securities Administrator.
The
fees of the Trustee and the Securities Administrator hereunder, of Xxxxx
Fargo
as the Custodian under the Xxxxx Fargo Custodial Agreement and of DBNT
as the
Custodian under the DBNT 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) or (iii) any loss, liability or expense
incurred by
reason of willful misfeasance, bad faith or negligence in the performance
of
duties hereunder by the Trustee or the Securities Administrator or by
reason of
reckless disregard of obligations and duties hereunder. In no event shall
the
Trustee or the Securities Administrator be liable for special, indirect
or
consequential loss or damage of any kind whatsoever (including but not
limited
to lost profits), even if it has been advised of the likelihood of such
loss or
damage and regardless of the form of action. The Master Servicer agrees
to
indemnify the Trustee, from, and hold the Trustee harmless against, any
loss,
liability or expense (including reasonable attorney’s fees and expenses)
incurred by the Trustee by reason of the Master Servicer’s willful misfeasance,
bad faith or gross negligence in the performance of its duties under
this
Agreement or by reason of the Master Servicer’s reckless disregard of its
obligations and duties under this Agreement. In addition, the Sponsor
agrees to
indemnify the Trustee for, and to hold the Trustee harmless against,
any loss,
liability or expense arising out of, or in connection with, the provisions
set
forth in the last paragraph of Section 2.01, including, without limitation,
all
costs, liabilities and expenses (including reasonable legal fees and
expenses)
of investigating and defending itself against any claim, action or proceeding,
pending or threatened, relating to the provisions of such paragraph.
The
indemnities in this Section 9.05 shall survive the termination or discharge
of
this Agreement and the resignation or removal of the Master Servicer,
the
Trustee, the Securities Administrator or the Custodians. Any payment
hereunder
made by the Master Servicer to the Trustee shall be from the Master Servicer’s
own funds, without reimbursement from REMIC I therefor.
SECTION
9.06. Eligibility
Requirements for Trustee and Securities Administrator.
The
Trustee and the Securities Administrator shall at all times be a corporation
or
an association (other than the Depositor, the Sponsor, the Master Servicer
or
any Affiliate of the foregoing) organized and doing business under the
laws of
any state or the United States of America, authorized under such laws
to
exercise corporate trust powers, having a combined capital and surplus
of at
least $50,000,000 (or a member of a bank holding company whose capital
and
surplus is at least $50,000,000) and subject to supervision or examination
by
federal or state authority. If such corporation or association publishes
reports
of conditions at least annually, pursuant to law or to the requirements
of the
aforesaid supervising or examining authority, then for the purposes of
this
Section the combined capital and surplus of such corporation or association
shall be deemed to be its combined capital and surplus as set forth in
its most
recent report of conditions so published. In case at any time the Trustee
or the
Securities Administrator, as applicable, shall cease to be eligible in
accordance with the provisions of this Section, the Trustee or the Securities
Administrator, as applicable, shall resign immediately in the manner
and with
the effect specified in Section 9.07.
SECTION
9.07. Resignation
and Removal of Trustee and Securities Administrator.
The
Trustee and the Securities Administrator may at any time resign and be
discharged from the trust hereby created by giving written notice thereof
to the
Depositor, to the Master Servicer, to the Securities Administrator (or
the
Trustee, if the Securities Administrator resigns) and to the Certificateholders.
Upon receiving such notice of resignation, the Depositor shall promptly
appoint
a successor trustee or successor securities administrator by written
instrument,
in duplicate, which instrument shall be delivered to the resigning Trustee
or
Securities Administrator, as applicable, and to the successor trustee
or
successor securities administrator, as applicable. A copy of such instrument
shall be delivered to the Certificateholders, the Trustee, the Securities
Administrator and the Master Servicer by the Depositor. If no successor
trustee
or successor securities administrator shall have been so appointed and
have
accepted appointment within thirty (30) days after the giving of such
notice of
resignation, the resigning Trustee or Securities Administrator, as the
case may
be, may, at the expense of the Trust Fund, petition any court of competent
jurisdiction for the appointment of a successor trustee, successor securities
administrator, Trustee or Securities Administrator, as applicable.
If
at any time the Trustee or the Securities Administrator shall cease to
be
eligible in accordance with the provisions of Section 9.06 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 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, 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 Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000, and presented for final distribution at
the
Corporate Trust Office of the Securities Administrator where notices
and demands
to or upon the Securities Administrator in respect of the Certificates
and this
Agreement may be served.
SECTION
9.12. Representations
and Warranties.
The
Trustee hereby represents and warrants to the Master Servicer, the Securities
Administrator, the Servicer and the Depositor as applicable, as of the
Closing
Date, that:
(i) It
is a national banking association duly organized, validly existing and
in good
standing under the laws of the United States of America.
(ii) The
execution and delivery of this Agreement by it, and the performance and
compliance with the terms of this Agreement by it, will not violate its
articles
of association or bylaws or constitute a default (or an event which,
with notice
or lapse of time, or both, would constitute a default) under, or result
in the
breach of, any material agreement or other instrument to which it is
a party or
which is applicable to it or any of its assets.
(iii) It
has the full power and authority to enter into and consummate all transactions
contemplated by this Agreement, has duly authorized the execution, delivery
and
performance of this Agreement, and has duly executed and delivered this
Agreement.
(iv) This
Agreement, assuming due authorization, execution and delivery by the
other
parties hereto, constitutes a valid, legal and binding obligation of
it,
enforceable against it in accordance with the terms hereof, subject to
(A)
applicable bankruptcy, insolvency, receivership, reorganization, moratorium
and
other laws affecting the enforcement of creditors’ rights generally, and (B)
general principles of equity, regardless of whether such enforcement
is
considered in a proceeding in equity or at law.
(v) It
is not in violation of, and its execution and delivery of this Agreement
and its
performance and compliance with the terms of this Agreement will not
constitute
a violation of, any law, any order or decree of any court or arbiter,
or any
order, regulation or demand of any federal, state or local governmental
or
regulatory authority, which violation, in its good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of it
to perform its obligations under this Agreement or its financial
condition.
(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
XXXXXXX
00.00. Xxxxxxxxxxx
Xxxx Xxxxxxxxxx or Liquidation of All Mortgage Loans.
(a) Subject
to Section 10.02, 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 and of the Servicer to make remittances
to the Securities Administrator and the Securities Administrator to make
payments in respect of the REMIC I Regular Interests, REMIC I Regular
Interests
or the Classes of Certificates as hereinafter set forth) shall terminate
upon
payment to the Certificateholders and the deposit of all amounts held
by or on
behalf of the Trustee and required hereunder to be so paid or deposited
on the
Distribution Date coinciding with or following the earlier to occur of
(i) the
purchase by the Terminator (as defined below) of all Mortgage Loans and
each REO
Property remaining in REMIC I and (ii) the final payment or other liquidation
(or any advance with respect thereto) of the last Mortgage Loan or REO
Property
remaining in REMIC I; provided, however, that in no event shall the trust
created hereby continue beyond the earlier of (i) the expiration of 21
years
from the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx,
the
late ambassador of the United States to the Court of St. Xxxxx, 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) amounts due and owing to the Swap Provider under
the Swap
Agreement as of the termination date plus (ii) any amounts due the Servicer
and
the Master Servicer in respect of unpaid Servicing Fees and outstanding
P&I
Advances and Servicing Advances.
(b) The
Master Servicer referred to herein as 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 Certificates. In the event the optional
termination right is exercised by the Master Servicer, the Servicer shall
remain
the servicer of record of the Mortgage Loans unless the Servicer was
terminated
as Servicer prior to the exercise of such optional termination right.
(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 the Certificates from
and after
the Interest Accrual Period relating to the final Distribution Date therefor
and
(iv) that the Record Date otherwise applicable to such Distribution Date
is not
applicable, payments being made only upon presentation and surrender
of the
Certificates at the office of the Securities Administrator. In the event
such
notice is given in connection with the purchase of all of the Mortgage
Loans and
each REO Property remaining in REMIC I by the Master Servicer, the Master
Servicer shall deliver to the Securities Administrator for deposit in
the
Distribution Account not later than the Business Day prior to the Distribution
Date on which the final distribution on the Certificates an amount in
immediately available funds equal to the above-described Termination
Price. The
Securities Administrator shall remit to the Servicer, the Master Servicer,
the
Trustee and the applicable Custodian from such funds deposited in the
Distribution Account (i) any amounts which the Servicer would be permitted
to
withdraw and retain from the Collection Account pursuant to Section 3.09
as if
such funds had been deposited therein (including all unpaid Servicing
Fees,
Master Servicing Fees and all outstanding P&I Advances and Servicing
Advances) and (ii) any other amounts otherwise payable by the Securities
Administrator to the Master Servicer, the Trustee, the applicable Custodian
and
the Servicer from amounts on deposit in the Distribution Account pursuant
to the
terms of this Agreement prior to making any final distributions pursuant
to
Section 10.01(d) below. Upon certification to the Trustee by the Securities
Administrator of the making of such final deposit, the Trustee shall
promptly
release or cause to be released to the Master Servicer the Mortgage Files
for
the remaining Mortgage Loans, and Trustee shall execute all assignments,
endorsements and other instruments delivered to it and necessary to effectuate
such transfer.
(d) Upon
presentation of the Certificates by the Certificateholders on the final
Distribution Date, the Securities Administrator shall distribute to each
Certificateholder so presenting and surrendering its Certificates the
amount
otherwise distributable on such Distribution Date in accordance with
Section
5.01 in respect of the Certificates so presented and surrendered. Any
funds not
distributed to any Holder or Holders of Certificates being retired on
such
Distribution Date because of the failure of such Holder or Holders to
tender
their Certificates shall, on such date, be set aside and held in trust
and
credited to the account of the appropriate non-tendering Holder or Holders.
If
any Certificates as to which notice has been given pursuant to this Section
10.01 shall not have been surrendered for cancellation within six months
after
the time specified in such notice, the Securities Administrator shall
mail a
second notice to the remaining non-tendering Certificateholders to surrender
their Certificates for cancellation in order to receive the final distribution
with respect thereto. If within one year after the second notice all
such
Certificates shall not have been surrendered for cancellation, the Securities
Administrator shall, directly or through an agent, mail a final notice
to the
remaining non-tendering Certificateholders concerning surrender of their
Certificates. The costs and expenses of maintaining the funds in trust
and of
contacting such Certificateholders shall be paid out of the assets remaining
in
the trust funds. If within one (1) year after the final notice any such
Certificates shall not have been surrendered for cancellation, the Securities
Administrator shall pay to the Depositor all such amounts, and all rights
of
non-tendering Certificateholders in or to such amounts shall thereupon
cease. No
interest shall accrue or be payable to any Certificateholder on any amount
held
in trust by the Securities Administrator as a result of such Certificateholder’s
failure to surrender its Certificate(s) on the final Distribution Date
for final
payment thereof in accordance with this Section 10.01. Any such amounts
held in
trust by the Securities Administrator shall be held uninvested in an
Eligible
Account.
SECTION
10.02. Additional
Termination Requirements.
(a) In
the event that the Terminator purchases all the Mortgage Loans and each
REO
Property or the final payment on or other liquidation of the last Mortgage
Loan
or REO Property remaining in REMIC I pursuant to Section 10.01, the Trust
Fund
shall be terminated in accordance with the following additional
requirements:
(i) The
Trustee shall specify the first day in the 90-day liquidation period
in a
statement attached to each Trust REMIC’s final Tax Return pursuant to Treasury
regulation Section 1.860F-1 and shall satisfy all requirements of a qualified
liquidation under Section 860F of the Code and any regulations thereunder,
as
evidenced by an Opinion of Counsel obtained by and at the expense of
the
Terminator;
(ii) During
such 90-day liquidation period and, at or prior to the time of making
of the
final payment on the Certificates, the Trustee shall sell all of the
assets of
REMIC I to the Terminator for cash; and
(iii) At
the time of the making of the final payment on the Certificates, the
Securities
Administrator shall distribute or credit, or cause to be distributed
or
credited, to the Holders of the Residual Certificates all cash on hand
in the
Trust Fund (other than cash retained to meet claims), and the Trust Fund
shall
terminate at that time.
(b) At
the expense of the Terminator (or, if the Trust Fund is being terminated
as a
result of the occurrence of the event described in clause (ii) of the
first
paragraph of Section 10.01, at the expense of the Trust Fund), the Terminator
shall prepare or cause to be prepared the documentation required in connection
with the adoption of a plan of liquidation of each Trust REMIC pursuant
to this
Section 10.02.
(c) By
their acceptance of Certificates, the Holders thereof hereby agree to
authorize
the Trustee to specify the 90-day liquidation period for each Trust REMIC,
which
authorization shall be binding upon all successor
Certificateholders.
ARTICLE
XI
REMIC
PROVISIONS
SECTION
11.01. REMIC
Administration.
(a) The
Trustee shall elect to treat each Trust REMIC as a REMIC under the Code
and, if
necessary, under applicable state law. Each such election will be made
by the
Securities Administrator on Form 1066 or other appropriate federal tax
or
information return or any appropriate state return for the taxable year
ending
on the last day of the calendar year in which the Certificates are issued.
For
the purposes of the REMIC election in respect of REMIC I, the REMIC I
Regular
Interests shall be designated as the “regular interests” in REMIC I and the
Class R-I Interest shall be designated as the “residual interest” 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 interest” in REMIC
II. The Class A Certificates, the Mezzanine Certificates, the Class P
Certificates, Class IO Interest and the Class CE 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 interest” in REMIC III. The Trustee shall not permit
the creation of any “interests” in each Trust REMIC (within the meaning of
Section 860G of the Code) other than the REMIC I Regular Interests, REMIC
II
Regular Interests, Class IO Interest 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, 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, 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 Servicer pursuant to Section 11.03, if such tax
arises
out of or results from a breach by the Servicer of any of its obligations
under
Article III or under this Article XI, or (v) in all other cases, against
amounts
on deposit in the Distribution Account and shall be paid by withdrawal
therefrom.
(h) The
Securities Administrator shall, for federal income tax purposes, maintain
books
and records with respect to each Trust REMIC on a calendar year and on
an
accrual basis.
(i) Following
the Startup Day, neither the Securities Administrator nor the Trustee
shall
accept any contributions of assets to any Trust REMIC other than in connection
with any Qualified Substitute Mortgage Loan delivered in accordance with
Section
2.03 unless it shall have received an Opinion of Counsel to the effect
that the
inclusion of such assets in the Trust Fund will not cause the related
REMIC to
fail to qualify as a REMIC at any time that any Certificates are outstanding
or
subject such REMIC to any tax under the REMIC Provisions or other applicable
provisions of federal, state and local law or ordinances.
(j) Neither
the Trustee nor the Securities Administrator shall knowingly enter into
any
arrangement by which any Trust REMIC will receive a fee or other compensation
for services nor permit either REMIC to receive any income from assets
other
than “qualified mortgages” as defined in Section 860G(a)(3) of the Code or
“permitted investments” as defined in Section 860G(a)(5) of the
Code.
(k) The
Securities Administrator shall apply for an employer identification number
with
the Internal Revenue Service via a Form SS-4 or other comparable method
for each
REMIC. In connection with the foregoing, the Securities Administrator
shall
provide the name and address of the person who can be contacted to obtain
information required to be reported to the holders of Regular Interests
in each
REMIC as required by IRS Form 8811.
SECTION
11.02. Prohibited
Transactions and Activities.
None
of the Depositor, the 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 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
Servicer
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) The
Servicer agrees to indemnify the Trust Fund, the Depositor, the Master
Servicer,
the Securities Administrator 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 the Servicer’s failure to perform its covenants set
forth in Article III in accordance with the standard of care of the Servicer
set
forth in this Agreement.
(c) The
Master Servicer agrees to indemnify the Trust Fund, the Depositor, the
Servicer
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 Servicer 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.
(d) The
Securities Administrator agrees to be liable for any taxes and costs
incurred by
the Trust Fund, the Depositor, the Servicer or the Trustee including,
without
limitation, any reasonable attorneys’ fees imposed on or incurred by the Trust
Fund, the Depositor, the 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 Servicer,
the
Master Servicer, the Securities Administrator and the Trustee, but without
the
consent of any of the Certificateholders, (i) to cure any ambiguity or
defect,
(ii) to correct, modify or supplement any provisions herein (including
to give
effect to the expectations of Certificateholders), (iii) to ensure compliance
with Regulation AB or (iv) to make any other provisions with respect
to matters
or questions arising under this Agreement which shall not be inconsistent
with
the provisions of this Agreement and that such action shall not, as evidenced
by
an Opinion of Counsel delivered to the Trustee, adversely affect in any
material
respect the interests of any Certificateholder (or the Swap Provider
unless the
Swap Provider shall have consented to the amendment); 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, the
Servicer,
the Master Servicer, the Securities Administrator and the Trustee with
the
consent of 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 (or if such amendment
modifies
the rights of the Swap Provider hereunder, with the consent of the Swap
Provider); 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 the
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, 0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxx Xxxxxxxx
00000, Attention: Xxxxxxx Xxxxxxx (telecopy number: (000) 000-0000),
or such
other address or telecopy number as may hereafter be furnished to the
Servicer,
the Master Servicer, the Securities Administrator and the Trustee in
writing by
the Depositor, (b) in the case of the Servicer, Saxon Mortgage Services,
Inc.,
0000 Xxxxxxxxxx Xxxxx, Xxxx Xxxxx, Xxxxx 00000, Attention: Mr. Xxxxx
Xxxx,
President (telecopy number: (000) 000-0000), 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 the Servicer,
(c) in
the case of the Master Servicer and the Securities Administrator, X.X.
Xxx 00,
Xxxxxxxx, Xxxxxxxx 00000 and for overnight delivery to 0000 Xxx Xxxxxxxxx
Xxxx,
Xxxxxxxx, Xxxxxxxx 00000, Attention: Ace Securities Corp., 2006-ASAP1
(telecopy
number: (000) 000-0000), or such other address or telecopy number as
may
hereafter be furnished to the Trustee, the Depositor and the Servicer
in writing
by the Master Servicer or the Securities Administrator and (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 Servicer, the Master
Servicer, the Securities Administrator and the Depositor in writing by
the
Trustee. Any notice required or permitted to be given to a Certificateholder
shall be given by first class mail, postage prepaid, at the address of
such
Holder as shown in the Certificate Register. Any notice so mailed within
the
time prescribed in this Agreement shall be conclusively presumed to have
been
duly given when mailed, whether or not the Certificateholder receives
such
notice. A copy of any notice required to be telecopied hereunder also
shall be
mailed to the appropriate party in the manner set forth above.
SECTION
12.06. Severability
of Provisions.
If
any one or more of the covenants, agreements, provisions or terms of
this
Agreement shall be for any reason whatsoever held invalid, then such
covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall
in no way
affect the validity or enforceability of the other provisions of this
Agreement
or of the Certificates or the rights of the Holders thereof.
SECTION
12.07. Notice
to Rating Agencies.
The
Trustee shall use its best efforts promptly to provide notice to the
Rating
Agencies with respect to each of the following of which a Responsible
Officer
has actual knowledge:
1. Any
material change or amendment to this Agreement;
2. The
occurrence of any Servicer Event of Default or Master Servicer Event
of Default
that has not been cured or waived;
3. The
resignation or termination of the Servicer, the Master Servicer or the
Trustee;
4. The
repurchase or substitution of Mortgage Loans pursuant to or as contemplated
by
Section 2.03;
5. The
final payment to the Holders of any Class of Certificates;
6. Any
change in the location of the Distribution Account; and
7. Any
event that would result in the inability of the Trustee as successor
servicer to
make advances regarding delinquent Mortgage Loans.
In
addition, the Securities Administrator shall promptly make available
to each
Rating Agency copies of each report to Certificateholders described in
Section
5.02.
The
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.
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 XxXxxx-Xxxx Companies, Inc., 00 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000; to Xxxxx’x Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000; and to Dominion Bond Rating Service, 00 Xxxxxxxx,
00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 or such other addresses as the Rating
Agencies
may designate in writing to the parties hereto.
SECTION
12.08. Article
and Section References.
All
article and section references used in this Agreement, unless otherwise
provided, are to articles and sections in this Agreement.
SECTION
12.09. Grant
of Security Interest.
It
is the express intent of the parties hereto that the conveyance of the
Mortgage
Loans by the Depositor to the Trustee, on behalf of the Trust and for
the
benefit of the Certificateholders, be, and be construed as, a sale of
the
Mortgage Loans by the Depositor and not a pledge of the Mortgage Loans
to secure
a debt or other obligation of the Depositor. However, in the event that,
notwithstanding the aforementioned intent of the parties, the Mortgage
Loans are
held to be property of the Depositor, then, (a) it is the express intent
of the
parties that such conveyance be deemed a pledge of the Mortgage Loans
by the
Depositor to the Trustee, on behalf of the Trust and for the benefit
of the
Certificateholders, to secure a debt or other obligation of the Depositor
and
(b)(1) this Agreement shall also be deemed to be a security agreement
within the
meaning of Articles 8 and 9 of the Uniform Commercial Code as in effect
from
time to time in the State of New York; (2) the conveyance provided for
in
Section 2.01 shall be deemed to be a grant by the Depositor to the Trustee,
on
behalf of the Trust and for the benefit of the Certificateholders, of
a security
interest in all of the Depositor’s right, title and interest in and to the
Mortgage Loans and all amounts payable to the holders of the Mortgage
Loans in
accordance with the terms thereof and all proceeds of the conversion,
voluntary
or involuntary, of the foregoing into cash, instruments, securities or
other
property, including without limitation all amounts, other than investment
earnings, from time to time held or invested in the Collection Account
and the
Distribution Account, whether in the form of cash, instruments, securities
or
other property; (3) the obligations secured by such security agreement
shall be
deemed to be all of the Depositor’s obligations under this Agreement, including
the obligation to provide to the Certificateholders the benefits of this
Agreement relating to the Mortgage Loans and the Trust Fund; and (4)
notifications to persons holding such property, and acknowledgments,
receipts or
confirmations from persons holding such property, shall be deemed notifications
to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the Trustee for
the purpose
of perfecting such security interest under applicable law. Accordingly,
the
Depositor hereby grants to the Trustee, on behalf of the Trust and for
the
benefit of the Certificateholders, a security interest in the Mortgage
Loans and
all other property described in clause (2) of the preceding sentence,
for the
purpose of securing to the Trustee the performance by the Depositor of
the
obligations described in clause (3) of the preceding sentence. Notwithstanding
the foregoing, the parties hereto intend the conveyance pursuant to Section
2.01
to be a true, absolute and unconditional sale of the Mortgage Loans and
assets
constituting the Trust Fund by the Depositor to the Trustee, on behalf
of the
Trust and for the benefit of the Certificateholders.
SECTION
12.10. Survival
of Indemnification.
Any
and all indemnities to be provided by any party to this Agreement shall
survive
the termination and resignation of any party hereto and the termination
of this
Agreement.
SECTION
12.11. Intention
of the Parties and Interpretation.
Each
of the parties acknowledges and agrees that the purpose of Sections 3.17,
3.18,
3.20, 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
Commission
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 Commission from time to time. Therefore,
each of the parties agrees that (a) the obligations of the parties hereunder
shall be interpreted in such a manner as to accomplish that purpose,
(b) the
parties’ obligations hereunder will be supplemented and modified as necessary
to
be consistent with any such amendments, interpretive advice or guidance,
convention or consensus among active participants in the asset-backed
securities
markets, advice of counsel, or otherwise in respect of the requirements
of
Regulation AB, (c) the parties shall comply with requests made by the
Sponsor or
the Depositor for delivery of additional or different information as
the Sponsor
or the Depositor may determine in good faith is necessary to comply with
the
provisions of Regulation AB, and (d) no amendment of this Agreement shall
be
required to effect any such changes in the parties’ obligations as are necessary
to accommodate evolving interpretations of the provisions of Regulation
AB.
IN
WITNESS WHEREOF, the Depositor, the Servicer, 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.
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ACE
SECURITIES CORP.,
as
Depositor
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| By: | /s/ Xxxxxx Xxxxxxxxxx | |
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Name: Xxxxxx Xxxxxxxxxx
Title: Vice President
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| By: | /s/ Xxxxx X. Xxxxx | |
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Name: Xxxxx X. Xxxxx
Title: Vice President
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SAXON
MORTGAGE SERVICES, INC.
as
Servicer
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| By: | /s/ Xxxxx X. Xxxx | |
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Name: Xxxxx X. Xxxx
Title: President
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HSBC
BANK USA, NATIONAL ASSOCIATION
not
in its individual capacity but solely as
Trustee
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| By: | /s/ Xxxxx Xxx | |
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Name: Xxxxx Xxx
Title: Vice President
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XXXXX
FARGO BANK, NATIONAL ASSOCIATION
as
Master Servicer and Securities
Administrator
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| By: | /s/ Xxxxxxxx Xxxxxxxxxx | |
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Name: Xxxxxxxx Xxxxxxxxxx
Title: Assistant Vice President
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Acknowledged
and Agreed for purposes of Section 9.05:
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DB
STRUCTURED PRODUCTS, INC
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| By: | /s/ Xxx Xxxxxxxxx | |
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Name: Xxx Xxxxxxxxx
Title: Director
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| By: | /s/ Xxxxx Xxxxxxx | |
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Name: Xxxxx Xxxxxxx
Title: Director
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Acknowledged
and Agreed for purposes of Sections 7.08, 7.09
and
7.10:
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XXXXXXX
FIXED INCOME SERVICES INC. (f/k/a THE MURRAYHILL
COMPANY)
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| By: | /s/ Xxxxx X. Xxxxxxx | |
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Name: Xxxxx X. Xxxxxxx
Title: President and General Counsel
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| STATE OF |
)
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| ) ss.: | |
| COUNTY OF |
)
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On
the ___ day of January 2006, before me, a notary public in and for
said State,
personally appeared _____________________ known to me to be a
_____________________ of ACE Securities Corp., one of the corporations
that
executed the within instrument, and also known to me to be the person
who
executed it on behalf of said corporation, and acknowledged to me that
such
corporation executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the
day and year in this certificate first above written.
|
Notary
Public
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| [Notarial Seal] | My commission expires |
| STATE OF |
)
|
| ) ss.: | |
| COUNTY OF |
)
|
On
the ___ day of January 2006, before me, a notary public in and for
said State,
personally appeared _____________________ known to me to be a
_____________________ of ACE Securities Corp., one of the corporations
that
executed the within instrument, and also known to me to be the person
who
executed it on behalf of said corporation, and acknowledged to me that
such
corporation executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the
day and year in this certificate first above written.
|
Notary
Public
|
|
| [Notarial Seal] | My commission expires |
| STATE OF |
)
|
| ) ss.: | |
| COUNTY OF |
)
|
On
the ___ day of January 2006, before me, a notary public in and for
said State,
personally appeared _____________________ known to me to be a
_____________________ of Saxon Mortgage Services, Inc., one of the
entities that
executed the within instrument, and also known to me to be the person
who
executed it on behalf of said entity, and acknowledged to me that such
entity
executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the
day and year in this certificate first above written.
|
Notary
Public
|
|
| [Notarial Seal] | My commission expires |
| STATE OF |
)
|
| ) ss.: | |
| COUNTY OF |
)
|
On
the ___ day of January 2006, before me, a notary public in and for
said State,
personally appeared _____________________ known to me to be a
_____________________ of Xxxxx Fargo Bank, National Association, one
of the
national banking associations that executed the within instrument,
and also
known to me to be the person who executed it on behalf of said national
banking
association, and acknowledged to me that such national banking association
executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the
day and year in this certificate first above written.
|
Notary
Public
|
|
| [Notarial Seal] | My commission expires |
| STATE OF |
)
|
| ) ss.: | |
| COUNTY OF |
)
|
On
the ___ day of January 2006, before me, a notary public in and for
said State,
personally appeared _____________________ known to me to be a
_____________________ of HSBC Bank USA, National Association, one of
the
national banking associations that executed the within instrument,
and also
known to me to be the person who executed it on behalf of said national
banking
association, and acknowledged to me that such national banking association
executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the
day and year in this certificate first above written.
|
Notary
Public
|
|
| [Notarial Seal] | My commission expires |
EXHIBIT A-1
FORM OF CLASS A-[1][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 (THE "CODE").
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY
TO THE DEPOSITOR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
PRIOR TO THE TERMINATION OF THE SUPPLEMENTAL INTEREST TRUST, ANY PERSON ACQUIRING A CERTIFICATE
SHALL BE DEEMED TO HAVE MADE THE REPRESENTATIONS IN SECTION 6.02(C) OF THE POOLING AND SERVICING
AGREEMENT.
Series 2006-ASAP1, Class A-[1][2A][2B][2C][2D] Aggregate Certificate Principal Balance of the Class
A-[1][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: Master Servicer: Xxxxx Fargo Bank, N.A.
January 1, 2006
First Distribution Date: February 27, 2006 Trustee: HSBC Bank USA, National Association
No.__ Issue Date: January 30, 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.
ACE SECURITIES CORP. HOME EQUITY LOAN TRUST, SERIES 2006-ASAP1
ASSET BACKED PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund") consisting primarily of a pool of
conventional one- to four-family, fixed and adjustable-rate first and second lien mortgage loans (the "Mortgage
Loans") formed and sold by
ACE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN ACE SECURITIES CORP., THE MASTER
SERVICER, THE SECURITIES ADMINISTRATOR, THE SERVICER, 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-[1][2A][2B][2C][2D]
Certificates as of the Issue Date) in that certain beneficial ownership interest evidenced by all the Class
A-[1][2A][2B][2C][2D] Certificates in REMIC II 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), Xxxxx Fargo Bank, N.A. as master servicer (the "Master Servicer")
and securities administrator (the "Securities Administrator"), Saxon Mortgage Services, Inc. as servicer (the
"Servicer") 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-[1][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 Business Days prior
to the Record Date immediately prior to such Distribution Date and is the registered owner of Class
A-[1][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-[1][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 Account 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
Servicer 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 Servicer with the consent of 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.
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 Servicer and any agent of
the Depositor, the Master Servicer, the Trustee, the Securities Administrator or the 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 Servicer 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 Scheduled 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:
XXXXX FARGO BANK, N.A.
as Securities Administrator
By:
------------------------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-[1][2A][2B][2C][2D] Certificates referred to in the within-mentioned Agreement.
XXXXX 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][11] CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL
ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND
860D OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE").
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY
TO THE DEPOSITOR OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
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 [AND] CLASS M-10 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-ASAP1, Class Aggregate Certificate Principal Balance of the
M-[1][2][3][4][5][6][7][8][9][10][11] Class M-[1][2][3][4][5][6][7][8][9][10][11]
Certificates as of the Issue Date: $______________
Pass-Through Rate: Variable Denomination: $______________
Date of Pooling and Servicing Agreement Master Servicer: Xxxxx Fargo Bank, N.A.
and Cut-off Date: January 1, 2006
First Distribution Date: February 27, 2006 Trustee: HSBC Bank USA, National Association
No.___ Issue Date: January 30, 2006
CUSIP:_________________
ACE SECURITIES CORP. HOME EQUITY LOAN TRUST, SERIES 2006-ASAP1
ASSET BACKED PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund") consisting primarily of a pool of
conventional one- to four-family, fixed and adjustable-rate first and second lien mortgage loans (the "Mortgage Loans")
formed and sold by
ACE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN ACE SECURITIES CORP., THE MASTER
SERVICER, THE SECURITIES ADMINISTRATOR, THE SERVICER, 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][11] Certificates as of the Issue Date) in that certain beneficial ownership interest
evidenced by all the Class M-[1][2][3][4][5][6][7][8][9][10][11] Certificates in REMIC II 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), Xxxxx Fargo Bank,
N.A. as master servicer (the "Master Servicer") and securities administrator (the "Securities Administrator"), Saxon
Mortgage Services, Inc. as servicer (the "Servicer") 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][11] 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 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][11] 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][11] 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 Account 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
Servicer 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 Servicer with the consent of 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 Servicer and any agent of
the Depositor, the Master Servicer, the Trustee, the Securities Administrator or the 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 Servicer 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:
XXXXX 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][11] Certificates referred to in the within-mentioned
Agreement.
XXXXX FARGO BANK, N.A.
as Securities Administrator
By:
------------------------------------------------------
Authorized Signatory
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this instrument, shall be construed as
though they were written out in full according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - CUSTODIAN
_____________________
(Cust) (Minor)
under Uniform Gifts
to Minors Act
TEN ENT - as tenants by the entireties _____________________
(State)
JT TEN - as joint tenants with right
if survivorship and not as
tenants in common
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto _____________________________
_________________________________________________________________________________________________________________________
_________________________________________________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer Identification Number of assignee)
a Percentage Interest equal to ____% evidenced by the within Asset Backed Pass-Through Certificate and hereby
authorize(s) the registration of transfer of such interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Securities Administrator to issue a new Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Certificate to the following address: ________________________________
_________________________________________________________________________________________________________________________
Dated:
________________________________________________
Signature by or on behalf of assignor
________________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately available funds to _________________
________________________________________________________________________________________________________________________
for the account of _____________________________________________________________________________________________________
account number ____________________________________________________________ or, if mailed by check, to
________________________________________________________________________________________________________________________
Applicable statements should be mailed to ______________________________________________________________________________
________________________________________________________________________________________________________________________
This information is provided by ________________________________________________________________________________________
assignee named above, or _______________________________________________________________________________________________
its agent.
EXHIBIT A-3
FORM OF CLASS CE CERTIFICATE
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR INTEREST" IN A "REAL
ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND
860D OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE IS SUBORDINATE TO THE 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 SECURITIES ACT AND OTHER APPLICABLE LAWS AND 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-ASAP1, Class CE Aggregate Certificate Principal Balance of the
Class CE Certificates as of the Issue Date:
$_____________
Pass-Through Rate: Variable Denomination: $_________________
Cut-off Date and date of Pooling and Servicing Agreement: Master Servicer: Xxxxx Fargo Bank, N.A.
January 1, 2006
First Distribution Date: February 27, 2006 Trustee: HSBC Bank USA, National Association
No. __ Issue Date: January 30, 2006
ACE SECURITIES CORP. HOME EQUITY LOAN TRUST, SERIES 2006-ASAP1
ASSET BACKED PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund") consisting primarily of a pool of
conventional one- to four-family, fixed and adjustable-rate, first and second lien mortgage loans (the "Mortgage Loans")
formed and sold by
ACE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN ACE SECURITIES CORP., THE MASTER
SERVICER, THE SECURITIES ADMINISTRATOR, THE SERVICER, 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 Certificates as of the
Issue Date) in that certain beneficial ownership interest evidenced by all the Class CE Certificates in REMIC II 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), Xxxxx
Fargo Bank, N.A. as master servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), Saxon Mortgage Services, Inc. as servicer (the "Servicer") 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
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 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 Business Days prior
to the Record Date immediately prior to such Distribution Date and is the registered owner of Class CE 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 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 Account 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
Servicer 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 Servicer with the consent of 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 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 Servicer and any agent of
the Depositor, the Master Servicer, the Trustee, the Securities Administrator or the 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 Servicer 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 Scheduled 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:
XXXXX FARGO BANK, N.A.
as Securities Administrator
By:
------------------------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class CE Certificates referred to in the within-mentioned Agreement.
XXXXX 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 (THE "CODE").
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), OR UNDER ANY STATE SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS
CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED
ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS AND 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-ASAP1, 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: Denomination: $100.00
January 1, 2006
First Distribution Date: February 27, 2006 Master Servicer: Xxxxx Fargo Bank, N.A.
No. __ Trustee: HSBC Bank USA, National Association
Issue Date: January 30, 2006
ACE SECURITIES CORP. HOME EQUITY LOAN TRUST, SERIES 2006-ASAP1
ASSET BACKED PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund") consisting primarily of a pool of
conventional one- to four-family, fixed and adjustable-rate, first and second lien mortgage loans (the "Mortgage Loans")
formed and sold by
ACE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN ACE SECURITIES CORP., THE
MASTER SERVICER, THE SECURITIES ADMINISTRATOR, THE SERVICER, THE TRUSTEE OR ANY OF THEIR
RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
This certifies that____________________ is the registered owner of a Percentage Interest (obtained by dividing
the denomination of this Certificate by the aggregate Certificate Principal Balance of the Class P Certificates as of
the Issue Date) in that certain beneficial ownership interest evidenced by all the Class P Certificates in REMIC II
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),
Xxxxx Fargo Bank, N.A. as master servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), Saxon Mortgage Services, Inc. as servicer (the "Servicer") 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 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 Account 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
Servicer 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 Servicer with the consent of 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 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 Servicer and any agent of
the Depositor, the Master Servicer, the Trustee, the Securities Administrator or the 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 Servicer 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 Scheduled 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:
XXXXX 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.
XXXXX 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 (THE "CODE").
ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 6.02 OF THE AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE RESOLD OR TRANSFERRED UNLESS IT IS
REGISTERED PURSUANT TO SUCH ACT AND LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT
FROM REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE
WITH THE PROVISIONS OF SECTION 6.02 OF THE AGREEMENT.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT SUBJECT
TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR THE CODE WILL BE REGISTERED
EXCEPT IN COMPLIANCE WITH THE PROCEDURES DESCRIBED IN SECTION 6.02(C) 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.
Series 2006-ASAP1, Class R Aggregate Percentage Interest of the Class R
Certificates as of the Issue Date: 100.00%
Date of Pooling and Servicing Agreement Master Servicer: Xxxxx Fargo Bank, N.A.
and Cut-off Date: January 1, 2006
First Distribution Date: February 27, 2006 Trustee: HSBC Bank USA, National Association
No __ Issue Date: January 30, 2006
ACE SECURITIES CORP. HOME EQUITY LOAN TRUST, SERIES 2006-ASAP1
ASSET BACKED PASS-THROUGH CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund (the "Trust Fund") consisting primarily of a pool of
conventional one- to four-family, fixed and adjustable-rate first and second lien mortgage loans (the "Mortgage Loans")
formed and sold by
ACE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN ACE SECURITIES CORP., THE MASTER
SERVICER, THE SECURITIES ADMINISTRATOR, THE SERVICER, 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 R Certificates as of the
Issue Date) in that certain beneficial ownership interest evidenced by all the Class R Certificates in REMIC II 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), Xxxxx
Fargo Bank, N.A. as master servicer (the "Master Servicer") and securities administrator (the "Securities
Administrator"), Saxon Mortgage Services, Inc. as servicer (the "Servicer") 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 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 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 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 Account 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
Servicer 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 Servicer with the consent of 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 and REMIC II, (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 Servicer and any agent of
the Depositor, the Master Servicer, the Trustee, the Securities Administrator or the 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 Servicer 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:
XXXXX 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.
XXXXX FARGO BANK, N.A.
as Securities Administrator
By:
------------------------------------------------------
Authorized Signatory
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this instrument, shall be construed as
though they were written out in full according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - CUSTODIAN
_____________________
(Cust) (Minor)
under Uniform Gifts
to Minors Act
TEN ENT - as tenants by the entireties _____________________
(State)
JT TEN - as joint tenants with right
if survivorship and not as
tenants in common
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto _____________________________
_________________________________________________________________________________________________________________________
_________________________________________________________________________________________________________________________
(Please print or typewrite name, address including postal zip code, and Taxpayer Identification Number of assignee)
a Percentage Interest equal to ____% evidenced by the within Asset Backed Pass-Through Certificate and hereby
authorize(s) the registration of transfer of such interest to assignee on the Certificate Register of the Trust Fund.
I (we) further direct the Securities Administrator to issue a new Certificate of a like Percentage Interest and
Class to the above named assignee and deliver such Certificate to the following address: ________________________________
_________________________________________________________________________________________________________________________
Dated:
________________________________________________
Signature by or on behalf of assignor
________________________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately available funds to _________________
________________________________________________________________________________________________________________________
for the account of _____________________________________________________________________________________________________
account number ____________________________________________________________ or, if mailed by check, to
________________________________________________________________________________________________________________________
Applicable statements should be mailed to ______________________________________________________________________________
________________________________________________________________________________________________________________________
This information is provided by _______________________________________________________________________________
assignee named above, or _______________________________________________________________________________________________
its agent.
EXHIBIT B-1
FORM OF TRANSFEROR REPRESENTATION LETTER
[Date]
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust ACE 2006-ASAP1
Re: ACE Securities Corp. Home Equity Loan Trust, Series 2006-ASAP1 Asset Backed
Pass-Through Certificates
Class CE, Class P and Class R Certificates
------------------------------------------------------------------------------
Ladies and Gentlemen:
In connection with the transfer by ______________________ (the "Transferor") to ___________________ (the
"Transferee") of the captioned mortgage pass-through certificates (the "Certificates"), the Transferor hereby certifies
as follows:
Neither the Transferor nor anyone acting on its behalf has (a) offered, pledged, sold, disposed of or otherwise
transferred any Certificate, any interest in any Certificate or any other similar security to any person in any manner,
(b) has solicited any offer to buy or to accept a pledge, disposition or other transfer of any Certificate, any interest
in any Certificate or any other similar security from any person in any manner, (c) has otherwise approached or
negotiated with respect to any Certificate, any interest in any Certificate or any other similar security with any
person in any manner, (d) has made any general solicitation by means of general advertising or in any other manner, (e)
has taken any other action, that (in the case of each of subclauses (a) through (e) above) would constitute a
distribution of the Certificates under the Securities Act of 1933, as amended (the "1933 Act"), or would render the
disposition of any Certificate a violation of Section 5 of the 1933 Act or any state securities law or would require
registration or qualification pursuant thereto. The Transferor will not act, nor has it authorized or will it authorize
any person to act, in any manner set forth in the foregoing sentence with respect to any Certificate. The Transferor
will not sell or otherwise transfer any of the Certificates, except in compliance with the provisions of that certain
Pooling and Servicing Agreement, dated as of January 1, 2006, among ACE Securities Corp. as Depositor, Xxxxx Fargo Bank,
N.A. as Master Servicer and Securities Administrator, Saxon Mortgage Services, Inc. as 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]
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust ACE 2006-ASAP1
Re: ACE Securities Corp. Home Equity Loan Trust, Series 2006-ASAP1
Asset Backed Pass-Through Certificates
Class CE, 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. ss. 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 Servicer 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 Servicer 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 January 1, 2006, among ACE Securities Corp. as Depositor, Xxxxx Fargo
Bank, N.A. as Master Servicer and Securities Administrator, Saxon Mortgage Services, Inc. as 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 Xxxxx 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.
(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.
___ 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.
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 Xxxxx 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
--------------------------------------------------------------------------
EXHIBIT B-2
FORM OF TRANSFEROR REPRESENTATION LETTER
____________, 20__
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust ACE 2006-ASAP1
Re: ACE Securities Corp. Home Equity Loan Trust, Series 2006-ASAP1
Asset Backed Pass-Through Certificates,
Class CE, 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__
Xxxxx Fargo Bank, N.A.
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust ACE 2006-ASAP1
Re: ACE Securities Corp. Home Equity Loan Trust, Series 2006-ASAP1
Asset Backed Pass-Through Certificates,
Class CE, 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. ss. 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 Servicer
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 Servicer 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 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-ASAP1 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 and the Class P Certificates any amounts in
excess of par received in connection with such termination. Accordingly, in the event of such
termination, the Securities Administrator is hereby authorized to withhold any such amounts in excess
of par and to pay such amounts directly to the Holders of the Class CE and the Class P Certificates.
This agreement shall bind and be enforceable against any successor, transferee or assigned of the
undersigned in the Class R Certificate. In connection with any transfer of the Class R Certificate,
the Owner shall obtain an agreement substantially similar to this clause from any subsequent owner.
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-ASAP1
I, [identify the certifying individual], certify to ACE Securities Corp. (the "Depositor"), HSBC Bank USA, National
Association (the "Trustee") and Xxxxx 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 Servicer provided in accordance with Item 1123 of
Regulation AB (the "Compliance Statement"), the report on assessment of the Servicer's compliance with the
servicing criteria set forth in Item 1122(d) of Regulation AB (the "Servicing Criteria"), provided in
accordance with Rules 13a-18 and 15d-18 under Securities Exchange Act of 1934, as amended (the "Exchange Act")
and Item 1122 of Regulation AB (the "Servicing Assessment"), the registered public accounting firm's
attestation report provided in accordance with Rules 13a-18 and 15d-18 under the Exchange Act and Section
1122(b) of Regulation AB (the "Attestation Report"), and all servicing reports, officer's certificates and
other information relating to the servicing of the Mortgage Loans by the Servicer during 200[ ] that were
delivered by the Servicer to the Master Servicer pursuant to the Agreement (collectively, the "Servicer
Servicing Information");
(2) Based on my knowledge, the Servicer Servicing Information, taken as a whole, does not contain any untrue
statement of a material fact or omit to state a material fact necessary to make the statements made, in the
light of the circumstances under which such statements were made, not misleading with respect to the period of
time covered by the Servicer Servicing Information;
(3) Based on my knowledge, all of the Servicer Servicing Information required to be provided by the Servicer under
the Agreement has been provided to the Master Servicer;
(4) I am responsible for reviewing the activities performed by the Servicer as servicer under the Agreement, and
based on my knowledge and the compliance review conducted in preparing the Compliance Statement and except as
disclosed in the Compliance Statement, the Servicing Assessment or the Attestation Report, the Servicer has
fulfilled its obligations under the Agreement in all material respects; and
(5) The Compliance Statement required to be delivered by the Servicer pursuant to the Agreement, and the Servicing
Assessment and Attestation Report required to be provided by the Servicer and by any Subservicer or
Subcontractor pursuant to the Agreement, have been provided to the Master Servicer. Any material instances of
noncompliance described in such reports have been disclosed to the Master Servicer. Any material instance of
noncompliance with the Servicing Criteria has been disclosed in such reports.
Capitalized terms used and not otherwise defined herein have the meanings assigned thereto in the Pooling and Servicing
Agreement (the "Agreement"), dated as of January 1, 2006, among ACE Securities Corp., Saxon Mortgage Services, Inc.,
Xxxxx Fargo Bank, National Association and HSBC Bank USA, National Association.
Date:
-----------------------------------------------
-----------------------------------------------------
[Signature]
-----------------------------------------------------
[Title]
EXHIBIT D
FORM OF POWER OF ATTORNEY
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO
Saxon Mortgage Services, Inc.
0000 Xxxxxxxxxx Xxxxx
Xxxx Xxxxx, Xxxxx 00000
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"),
Xxxxx Fargo Bank, National Association, as Master Servicer and Securities Administrator, Saxon Mortgage Services, Inc.
as the Servicer (the "Servicer") and the Trustee, dated as of January 1, 2006 (the "Pooling and Servicing Agreement"),
hereby constitutes and appoints 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,
Xxxxx Fargo Bank, National Association, Saxon Mortgage Services, Inc. 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":
-----------------------------------------------------------------------------------------------------------------
RELEVANT SERVICING
SERVICING CRITERIA 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 X
transaction agreements.
-----------------------------------------------------------------------------------------------------------------
1122(d)(1)(ii) If any material servicing activities are outsourced to third
parties, policies and procedures are instituted to monitor the X
third party's performance and compliance with such servicing
activities.
-----------------------------------------------------------------------------------------------------------------
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 X
otherwise in accordance with the terms of the transaction
agreements.
-----------------------------------------------------------------------------------------------------------------
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 X
than two business days following receipt, or such other number of
days specified in the transaction agreements.
-----------------------------------------------------------------------------------------------------------------
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor or to X
an investor are made only by authorized personnel.
-----------------------------------------------------------------------------------------------------------------
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash flows
or distributions, and any interest or other fees charged for such X
advances, are made, reviewed and approved as specified in the
transaction agreements.
-----------------------------------------------------------------------------------------------------------------
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 X
respect to commingling of cash) as set forth in the transaction
1122(d)(2)(iv) agreements.
-----------------------------------------------------------------------------------------------------------------
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 X
a foreign financial institution that meets the requirements of Rule
13k-1(b)(1) of the Securities Exchange Act.
-----------------------------------------------------------------------------------------------------------------
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized X
access.
-----------------------------------------------------------------------------------------------------------------
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 X
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.
-----------------------------------------------------------------------------------------------------------------
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 X
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.
-----------------------------------------------------------------------------------------------------------------
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in accordance
with timeframes, distribution priority and other terms set forth in X
the transaction agreements.
-----------------------------------------------------------------------------------------------------------------
Disbursements made to an investor are posted within two business
days to the Servicer's investor records, or such other number of X
1122(d)(3)(iii) days specified in the transaction agreements.
-----------------------------------------------------------------------------------------------------------------
Amounts remitted to investors per the investor reports agree with
cancelled checks, or other form of payment, or custodial bank X
1122(d)(3)(iv) statements.
-----------------------------------------------------------------------------------------------------------------
POOL ASSET ADMINISTRATION X
-----------------------------------------------------------------------------------------------------------------
1122(d)(4)(i) Collateral or security on mortgage loans is maintained as required X
by the transaction agreements or related mortgage loan documents.
-----------------------------------------------------------------------------------------------------------------
Mortgage loan and related documents are safeguarded as required by X
1122(d)(4)(ii) the transaction agreements
-----------------------------------------------------------------------------------------------------------------
1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool are
made, reviewed and approved in accordance with any conditions or X
requirements in the transaction agreements.
-----------------------------------------------------------------------------------------------------------------
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 X
transaction agreements, and allocated to principal, interest or
other items (e.g., escrow) in accordance with the related mortgage
loan documents.
-----------------------------------------------------------------------------------------------------------------
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 X
balance.
-----------------------------------------------------------------------------------------------------------------
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, X
reviewed and approved by authorized personnel in accordance with
the transaction agreements and related pool asset documents.
-----------------------------------------------------------------------------------------------------------------
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 X
concluded in accordance with the timeframes or other requirements
established by the transaction agreements.
-----------------------------------------------------------------------------------------------------------------
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 X
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).
-----------------------------------------------------------------------------------------------------------------
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 X
documents.
-----------------------------------------------------------------------------------------------------------------
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) X
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.
-----------------------------------------------------------------------------------------------------------------
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or insurance X
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.
-----------------------------------------------------------------------------------------------------------------
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 X
not charged to the obligor, unless the late payment was due to the
obligor's error or omission.
-----------------------------------------------------------------------------------------------------------------
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 X
1122(d)(4)(xiii) agreements.
-----------------------------------------------------------------------------------------------------------------
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts are
recognized and recorded in accordance with the transaction X
agreements.
-----------------------------------------------------------------------------------------------------------------
Any external enhancement or other support, identified in Item
1114(a)(1) through (3) or Item 1115 of Regulation AB, is maintained
1122(d)(4)(xv) 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 CRITERIA(1)
-------------------------------------------------------------------------------------------------------------------------
Reg. AB Item 1122(d) Servicing Paying Master Securities
Criteria Depositor Seller Servicer Trustee Custodian Agent Servicer Administrator
-------------------------------------------------------------------------------------------------------------------------
(1) GENERAL SERVICING
CONSIDERATIONS
-------------------------------------------------------------------------------------------------------------------------
(i) monitoring performance or
other triggers and events of X X X
default
-------------------------------------------------------------------------------------------------------------------------
(ii) monitoring performance
of vendors of activities X X
outsourced
-------------------------------------------------------------------------------------------------------------------------
(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 X X X
personnel
-------------------------------------------------------------------------------------------------------------------------
(iii) advances or guarantees
made, reviewed and approved as X X
required
-------------------------------------------------------------------------------------------------------------------------
(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 X X X X
statements
-------------------------------------------------------------------------------------------------------------------------
(4) POOL ASSET ADMINISTRATION
-------------------------------------------------------------------------------------------------------------------------
(i) maintenance of pool collateral
X X
-------------------------------------------------------------------------------------------------------------------------
(ii) safeguarding of pool
assets/documents X X
-------------------------------------------------------------------------------------------------------------------------
(iii) additions, removals and
substitutions of pool assets X X X
-------------------------------------------------------------------------------------------------------------------------
(iv) posting and allocation
of pool asset payments to pool X
assets
-------------------------------------------------------------------------------------------------------------------------
(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 X
or insurance)
-------------------------------------------------------------------------------------------------------------------------
(xii) late payment penalties
with respect to payments made X
on behalf of obligors
-------------------------------------------------------------------------------------------------------------------------
(xiii)records with respect to
payments made on behalf of X
obligors
-------------------------------------------------------------------------------------------------------------------------
(xiv) recognition and
recording of delinquencies, X X
charge-offs and uncollectible
accounts
-------------------------------------------------------------------------------------------------------------------------
(xv) maintenance of external
credit enhancement or other X
support
-------------------------------------------------------------------------------------------------------------------------
----------------------------
* 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
MORTGAGE
LOAN PURCHASE AGREEMENT
This
is a Mortgage Loan Purchase Agreement (this “Agreement”), dated January 30,
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-ASAP1, Asset Backed Pass-Through
Certificates (the “Certificates”). The Certificates will consist of nineteen
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-ASAP1, Asset Backed Pass-Through Certificates, dated as of January 1,
2006
(the “Pooling and Servicing Agreement”), among the Purchaser as depositor, Xxxxx
Fargo Bank, National Association as master servicer (the “Master Servicer”) and
securities administrator (the “Securities Administrator”), Saxon
Mortgage Services, Inc. as servicer (the “Servicer”)
and HSBC Bank USA, National Association as trustee (the “Trustee”). The
Purchaser will sell the Class A-1 Certificates and, the Class A-2A, Class A-2B,
Class A-2C and Class A-2D Certificates (collectively, the “Class A-2
Certificates”) and the Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5,
Class M-6, Class M-7, Class M-8, Class M-9, Class M-10 and Class M-11
Certificates (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 January
27, 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 January 30,
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 January 1, 2006 (the “Cut-off Date”) of approximately $493,170,821
(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, 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 1.0% 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 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
first lien Mortgage Loan), pledge, charge, claim or security interest and
immediately upon the sale, assignment and endorsement of the Mortgage Loans
from
the Seller to the Purchaser, the Purchaser shall have good and indefeasible
title to and be the sole legal owner of the Mortgage Loans subject only to
any
encumbrance, equity, lien, pledge, charge, claim or security interest arising
out of the Purchaser’s actions;
(xiii) Each
Mortgage Loan is covered by a valid and binding American Land Title Association
lender’s title insurance policy issued by a title insurer qualified to do
business in the jurisdiction where the Mortgaged Property is located. No claims
have been filed under such lender’s title insurance policy, and the Seller has
not done, by act or omission, anything that would impair the coverage of the
lender’s title insurance policy;
(xiv) There
is no material default, breach, violation event or event of acceleration
existing under the Mortgage or the Mortgage Note and no event which, with the
passage of time or with notice and the expiration of any grace or cure period,
would constitute a material default, breach, violation or event of acceleration,
and the Seller has not, nor has its predecessors, waived any material default,
breach, violation or event of acceleration;
(xv) There
are no mechanics’ or similar liens or claims which have been filed for work,
labor or material provided to the related Mortgaged Property prior to the
origination of the Mortgage Loan which are or may be liens prior to, or equal
or
coordinate with, the lien of the related Mortgage, except as may be disclosed
in
the related title policy;
(xvi) Except
with respect to approximately 4.91% of the Mortgage Loans by aggregate principal
balance as of the Cut-off Date, which are balloon loans and approximately 65.68%
of the 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 of principal and interest (subject
to
adjustment in the case of the adjustable rate Mortgage Loans), with interest
calculated on a 30/360 basis and payable in arrears, sufficient to amortize
the
Mortgage Loan fully by the stated maturity date over an original term from
commencement of amortization to not more than 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 underwriting guidelines
in effect at the time the Mortgage Loans were purchased by the Seller (the
“Seller’s Underwriting Guidelines”), except with respect to certain of those
Mortgage Loans which had compensating factors permitting a deviation from the
Seller’s 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 Seller’s 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 I Mortgage Loan, no borrower obtained a prepaid
single-premium credit-life, credit-disability, credit unemployment or credit
property insurance policy in connection with the origination of such Group
I
Mortgage Loan;
(xxxix) With
respect to any Group I Mortgage Loan that contains a provision permitting
imposition of a premium upon a prepayment prior to maturity: (i) prior to such
Group I 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 I 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 I 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
I
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 the mortgage debt is accelerated as a result of the borrower’s
default in making the loan payments;
(xl) No
Mortgage Loan is subject to the Home Ownership and Equity Protection Act of
1994
or any comparable law and no Mortgage Loan is classified and/or defined as
“high
cost”, “covered” (excluding home loans defined as “covered home loans” in the
New Jersey Home Ownership Security Act of 2002 that were originated between
November 26, 2003 and July 7, 2004) “high risk home” or “predatory” loan under
any other federal, state or local law (or a similarly classified loan using
different terminology under a law imposing heightened regulatory scrutiny or
additional legal liability for residential mortgage loans having high interest
rates, points and/or fees);
(xli) There
is no Mortgage Loan that was originated or modified on or after October 1,
2002
and before March 7, 2003, which is secured by property located in the State
of
Georgia. There is no such Mortgage Loan underlying the Certificate that was
originated on or after March 7, 2003, which is a “high cost home loan” as
defined under the Georgia Fair Lending Act;
(xlii) With
respect to any Mortgage Loan 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;
(xliii) 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;
(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 I 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 I Mortgage Loan which is secured by
a
first or second lien on the related Mortgaged Property is within Xxxxxxx 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. Xxx. §§ 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 Xxxx
383 X.X. 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 Xxxx
1574;
(lvi) With
respect to any Group I 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(c) Revised, Appendix E (attached hereto as
Exhibit 2)) and no Mortgage Loan originated on or after October 1, 2002 through
March 6, 2003 is governed by the Georgia Fair Lending Act;
(lviii) With
respect to the Group I Mortgage Loans, no borrower was encouraged or required
to
select a mortgage loan product offered by the mortgage loan’s originator which
is a higher cost product designed for less creditworthy borrowers, unless at
the
time of such Group I 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 mortgage loan’s originator or any affiliate
of the mortgage loan’s 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 mortgage loan originator, the mortgage loan’s
originator referred the borrower’s application to such affiliate for
underwriting consideration;
(lix) With
respect to a Group I Mortgage Loan which is a second lien, (a) such second
lien
Group I 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
I Mortgage Loan did not exceed one-half of the one-unit limitation set forth
by
Xxxxxxx 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 Xxxxxxx Mac’s applicable loan limits for first lien mortgage loans for
properties of the same type as the related Mortgaged Property;
(lx) 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; and
(lxi) The
information set forth in the Closing Schedule is true and correct in all
material respects as of the Cut-Off Date.
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 (xxxiv), (xxxviii), (xxxix), (xl), (xli), (xlvi), (xlvii), (lvi),
(lviii) and/or (lix) 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 Agreements, 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 Servicer for deposit in the
Collection Account, prior to the next succeeding Servicer Remittance Date,
the
amount of the Prepayment Charge indicated on the applicable part of the Closing
Schedule to be due from the Mortgagor in the circumstances less any amount
collected and remitted to the 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 Xxxxxxx Xxxxxxxx & Xxxx llp
at 10:00 a.m. New York City time on the Closing Date.
The
closing shall be subject to each of the following conditions:
(a) All
of the representations and warranties of the Seller under this Agreement shall
be true and correct in all material respects as of the date as of which they
are
made and no event shall have occurred which, with notice or the passage of
time,
would constitute a default under this Agreement;
(b) The
Purchaser shall have received, or the attorneys of the Purchaser shall have
received in escrow (to be released from escrow at the time of closing), all
closing documents as specified in Section 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 the Servicer’s loan
loss, foreclosure and delinquency experience, and the costs and expenses
incurred in connection with obtaining the documents referred to in Sections
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 Servicer, 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. 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. 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 Servicer. For so long as the
Master Servicer master services the Mortgage Loans and the Servicer services
the
Mortgage Loans, the Master Servicer shall be entitled to the Master Servicing
Fee and the Servicer shall be entitled to the Servicing Fee and such other
payments as provided for under the terms of the Pooling and Servicing
Agreement.
SECTION
12. Mandatory
Delivery; Grant of Security Interest. The
sale and delivery on the Closing Date of the Mortgage Loans described on the
Closing Schedule in accordance with the terms and conditions of this Agreement
is mandatory. It is specifically understood and agreed that each
Mortgage Loan is unique and identifiable on the date hereof and that an award
of
money damages would be insufficient to compensate the Purchaser for the losses
and damages incurred by the Purchaser in the event of the Seller’s failure to
deliver the Mortgage Loans on or before the Closing Date. The Seller
hereby grants to the Purchaser a lien on and a continuing security interest
in
the Seller’s interest in each Mortgage Loan and each document and instrument
evidencing each such Mortgage Loan to secure the performance by the Seller
of
its obligation hereunder, and the Seller agrees that it holds such Mortgage
Loans in custody for the Purchaser, subject to the Purchaser’s (i) right, prior
to the Closing Date, to reject any Mortgage Loan to the extent permitted by
this
Agreement and (ii) obligation to deliver or cause to be delivered the
consideration for the Mortgage Loans pursuant to Section 8
hereof. Any Mortgage Loans rejected by the Purchaser shall
concurrently therewith be released from the security interest created
hereby. All rights and remedies of the Purchaser under this Agreement
are distinct from, and cumulative with, any other rights or remedies under
this
Agreement or afforded by law or equity and all such rights and remedies may
be
exercised concurrently, independently or successively.
Notwithstanding
the foregoing, if on the Closing Date, each of the conditions set forth in
Section 8 hereof shall have been satisfied and the Purchaser shall not have
paid
or caused to be paid the Purchase Price, or any such condition shall not have
been waived or satisfied and the Purchaser determines not to pay or cause to
be
paid the Purchase Price, the Purchaser shall immediately effect the redelivery
of the Mortgage Loans, if delivery to the Purchaser has occurred, and the
security interest created by this Section 12 shall be deemed to have been
released.
SECTION
13. Notices. All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given if personally delivered to or mailed by
registered mail, postage prepaid, or transmitted by fax and, receipt of which
is
confirmed by telephone, if to the Purchaser, addressed to the Purchaser at
0000
Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, fax: (000)
000-0000, Attention: Xxxxx Xxxxx, 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 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
fax: (000) 000-0000, Attention: Xxxxxxx Xxxxxxxxx, 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.
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DB
STRUCTURED PRODUCTS, INC.
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Name:
Title:
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Name:
Title:
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ACE
SECURITIES CORP.
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Name:
Title:
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Name:
Title:
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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:
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1.
The Seller’s address
is:
___________________________
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| ___________________________ | |
| ___________________________ | |
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2.
The Seller previously delivered to the Purchaser a signed Initial
Certification with respect to such Mortgage and/or Assignment of
Mortgage;
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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
_____________;
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4.
Such Mortgage Note and/or Assignment of Mortgage is not outstanding
pursuant to a request for release of Documents;
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5.
Aforesaid Mortgage Note and/or Assignment of Mortgage (the “Original”) has
been lost;
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6.
Deponent has made or caused to be made a diligent search for the
Original
and has been unable to find or recover same;
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7.
The Seller was the Seller of the Original at the time of the loss;
and
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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.
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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.
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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.
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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.
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Executed
this _ day of _______, 200_.
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Name:
Title:
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On
this __ day of ______, 200_, before me appeared ______________________ to me
personally known, who being duly sworn did say that he is the
_______________________ of ____________________, a ______________________ and
that said Affidavit of Lost Note was signed and sealed on behalf of such
corporation and said acknowledged this instrument to be the free act and deed
of
said entity.
Signature:
[Seal]
EXHIBIT
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 "5.02 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 5.02
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.
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MASTER SECURITIES
FORM ITEM DESCRIPTION SERVICERS SERVICER ADMINISTRATOR CUSTODIAN TRUSTEE DEPOSITOR SPONSOR
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10-D Must be filed within 15 days of the distribution date for the asset-backed
securities.
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1 DISTRIBUTION AND POOL
PERFORMANCE
INFORMATION
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ITEM 1121(A) -
DISTRIBUTION AND POOL
PERFORMANCE
INFORMATION
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(1) Any applicable X
record dates, accrual
dates, determination (5.02 STATEMENT)
dates for calculating
distributions and
actual distribution
dates for the
distribution period.
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(2) Cash flows X
received and the
sources thereof for (5.02 STATEMENT)
distributions, fees
and expenses.
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(3) Calculated X
amounts and
distribution of the (5.02 STATEMENT)
flow of funds for the
period itemized by
type and priority of
payment, including:
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(i) Fees or X
expenses accrued and
paid, with an (5.02 STATEMENT)
identification of the
general purpose of
such fees and the
party receiving such
fees or expenses.
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(ii) Payments X
accrued or paid with
respect to (5.02 STATEMENT)
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.
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(iii) X
Principal, interest
and other (5.02 STATEMENT)
distributions accrued
and paid on the
asset-backed
securities by type
and by class or
series and any
principal or interest
shortfalls or
carryovers.
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(iv) The X
amount of excess cash
flow or excess spread (5.02 STATEMENT)
and the disposition
of excess cash flow.
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(4) Beginning and X
ending principal
balances of the (5.02 STATEMENT)
asset-backed
securities.
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(5) Interest rates X
applicable to the
pool assets and the (5.02 STATEMENT)
asset-backed
securities, as
applicable. Consider
providing interest
rate information for
pool assets in
appropriate
distributional groups
or incremental ranges.
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(6) Beginning and X
ending balances of
transaction accounts, (5.02 STATEMENT)
such as reserve
accounts, and
material account
activity during the
period.
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(7) Any amounts drawn X
on any credit
enhancement or other (5.02 STATEMENT)
support identified in
Item 1114 of
Regulation AB, as
applicable, and the
amount of coverage
remaining under any
such enhancement, if
known and applicable.
-----------------------------------------------------------------------------------------------------------------------------------------
(8) Number and amount X Updated pool
of pool assets at the composition
beginning and ending (5.02 STATEMENT) information
of each period, and fields to be as
updated pool specified by
composition Depositor from
information, such as time to time
weighted average
coupon, weighted
average remaining
term, pool factors
and prepayment
amounts.
-----------------------------------------------------------------------------------------------------------------------------------------
(9) Delinquency and X X X
loss information for
the period. (5.02 STATEMENT)
-----------------------------------------------------------------------------------------------------------------------------------------
In addition, describe X X
any material changes
to the information
specified in Item
1100(b)(5) of
Regulation AB
regarding the pool
assets. (methodology)
-----------------------------------------------------------------------------------------------------------------------------------------
(10) Information on X X X
the amount, terms and
general purpose of (5.02 STATEMENT)
any advances made or
reimbursed during the
period, including the
general use of funds
advanced and the
general source of
funds for
reimbursements.
-----------------------------------------------------------------------------------------------------------------------------------------
(11) Any material X X X
modifications,
extensions or waivers (5.02 STATEMENT)
to pool asset terms,
fees, penalties or
payments during the
distribution period
or that have
cumulatively become
material over time.
-----------------------------------------------------------------------------------------------------------------------------------------
(12) Material X X X
breaches of pool
asset representations
or warranties or
transaction covenants.
-----------------------------------------------------------------------------------------------------------------------------------------
(13) Information on X
ratio, coverage or
other tests used for (5.02 STATEMENT)
determining any early
amortization,
liquidation or other
performance trigger
and whether the
trigger was met.
-----------------------------------------------------------------------------------------------------------------------------------------
(14) Information X
regarding any new
issuance of
asset-backed
securities backed by
the same asset pool,
-----------------------------------------------------------------------------------------------------------------------------------------
any pool asset X X X X
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.
-----------------------------------------------------------------------------------------------------------------------------------------
Disclose any X X
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.
-----------------------------------------------------------------------------------------------------------------------------------------
ITEM 1121(B) - X
PRE-FUNDING OR
REVOLVING PERIOD
INFORMATION
Updated pool
information as
required under Item
1121(b).
-----------------------------------------------------------------------------------------------------------------------------------------
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, X X
affiliated Servicer,
other Servicer
servicing 20% or more
of pool assets at
time of report, other
material servicers
-----------------------------------------------------------------------------------------------------------------------------------------
Securities X
Administrator
-----------------------------------------------------------------------------------------------------------------------------------------
Originator of 20% or X
more of pool assets
as of the Cut-off Date
-----------------------------------------------------------------------------------------------------------------------------------------
Custodian X
-----------------------------------------------------------------------------------------------------------------------------------------
3 SALES OF SECURITIES
AND USE OF PROCEEDS
-----------------------------------------------------------------------------------------------------------------------------------------
INFORMATION FROM ITEM X
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.
-----------------------------------------------------------------------------------------------------------------------------------------
4 DEFAULTS UPON SENIOR
SECURITIES
-----------------------------------------------------------------------------------------------------------------------------------------
INFORMATION FROM ITEM X X
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)
-----------------------------------------------------------------------------------------------------------------------------------------
5 SUBMISSION OF MATTERS
TO A VOTE OF SECURITY
HOLDERS
-----------------------------------------------------------------------------------------------------------------------------------------
INFORMATION FROM ITEM X X
4 OF PART II OF FORM
10-Q
-----------------------------------------------------------------------------------------------------------------------------------------
6 SIGNIFICANT OBLIGORS
OF POOL ASSETS
-----------------------------------------------------------------------------------------------------------------------------------------
ITEM 1112(B) - X X
SIGNIFICANT OBLIGOR
FINANCIAL INFORMATION*
-----------------------------------------------------------------------------------------------------------------------------------------
*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 X
applicable
disclosure
threshold
-----------------------------------------------------------------------------------------------------------------------------------------
Requesting X
required
financial
information or
effecting
incorporation by
reference
-----------------------------------------------------------------------------------------------------------------------------------------
ITEM 1115(B) -
DERIVATIVE
COUNTERPARTY
FINANCIAL INFORMATION*
-----------------------------------------------------------------------------------------------------------------------------------------
Determining X
current maximum
probable exposure
-----------------------------------------------------------------------------------------------------------------------------------------
Determining X
current
significance
percentage
-----------------------------------------------------------------------------------------------------------------------------------------
Requesting X
required
financial
information or
effecting
incorporation by
reference
-----------------------------------------------------------------------------------------------------------------------------------------
*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 The Responsible Party for the applicable Form 8-K item as indicated below.
INFORMATION REQUIRED
TO BE REPORTED ON
FORM 8-K DURING THE
PERIOD COVERED BY THE
FORM 10-D BUT NOT
REPORTED
-----------------------------------------------------------------------------------------------------------------------------------------
9 EXHIBITS
-----------------------------------------------------------------------------------------------------------------------------------------
Distribution report X
-----------------------------------------------------------------------------------------------------------------------------------------
EXHIBITS REQUIRED BY X
ITEM 601 OF
REGULATION S-K, SUCH
AS MATERIAL AGREEMENTS
-----------------------------------------------------------------------------------------------------------------------------------------
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 X X X (if Master X (if X (if Master X (if
required regarding Servicer is not Master Servicer is not Master
entry into or a party) Servicer a party) Servicer
amendment of any is not a is not a
definitive agreement party) party)
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
-----------------------------------------------------------------------------------------------------------------------------------------
1.02 TERMINATION OF A X X X (if Master X (if X (if Master X (if
MATERIAL DEFINITIVE Servicer is not Master Servicer is not Master
AGREEMENT a party) Servicer a party) Servicer
is not a is not a
party) 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 X X X X X X X
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
-----------------------------------------------------------------------------------------------------------------------------------------
2.04 TRIGGERING EVENTS
THAT ACCELERATE OR
INCREASE A DIRECT
FINANCIAL OBLIGATION
OR AN OBLIGATION
UNDER AN OFF-BALANCE
SHEET ARRANGEMENT
-----------------------------------------------------------------------------------------------------------------------------------------
Includes an early X X
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
-----------------------------------------------------------------------------------------------------------------------------------------
3.03 MATERIAL MODIFICATION
TO RIGHTS OF SECURITY
HOLDERS
-----------------------------------------------------------------------------------------------------------------------------------------
Disclosure is X X X X
required of any
material modification
to documents defining
the rights of
Certificateholders,
including the Pooling
and Servicing
Agreement
-----------------------------------------------------------------------------------------------------------------------------------------
5.03 AMENDMENTS TO
ARTICLES OF
INCORPORATION OR
BYLAWS; CHANGE IN
FISCAL YEAR
-----------------------------------------------------------------------------------------------------------------------------------------
Disclosure is X X
required of any
amendment "to the
governing documents
of the issuing entity"
-----------------------------------------------------------------------------------------------------------------------------------------
5.06 CHANGE IN SHELL
COMPANY STATUS
-----------------------------------------------------------------------------------------------------------------------------------------
[Not applicable to X
ABS issuers]
-----------------------------------------------------------------------------------------------------------------------------------------
6.01 ABS INFORMATIONAL AND
COMPUTATIONAL MATERIAL
-----------------------------------------------------------------------------------------------------------------------------------------
[Not included in X
reports to be filed
under Section 3.18]
-----------------------------------------------------------------------------------------------------------------------------------------
6.02 CHANGE OF SERVICER OR
TRUSTEE
-----------------------------------------------------------------------------------------------------------------------------------------
Requires disclosure X X X X X
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.
-----------------------------------------------------------------------------------------------------------------------------------------
Reg AB disclosure X X X
about any new
servicer (from entity
appointing new
servicer) or trustee
(from Depositor) is
also required.
-----------------------------------------------------------------------------------------------------------------------------------------
6.03 CHANGE IN CREDIT
ENHANCEMENT OR OTHER
EXTERNAL SUPPORT
-----------------------------------------------------------------------------------------------------------------------------------------
Covers termination of X X X
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.
-----------------------------------------------------------------------------------------------------------------------------------------
Reg AB disclosure X
about any new
enhancement provider
is also required.
-----------------------------------------------------------------------------------------------------------------------------------------
6.04 FAILURE TO MAKE A X X
REQUIRED DISTRIBUTION
-----------------------------------------------------------------------------------------------------------------------------------------
6.05 SECURITIES ACT
UPDATING DISCLOSURE
-----------------------------------------------------------------------------------------------------------------------------------------
If any material pool X
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.
-----------------------------------------------------------------------------------------------------------------------------------------
If there are any new X
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.
-----------------------------------------------------------------------------------------------------------------------------------------
7.01 REGULATION FD X X X X X X
DISCLOSURE
-----------------------------------------------------------------------------------------------------------------------------------------
8.01 OTHER EVENTS
-----------------------------------------------------------------------------------------------------------------------------------------
Any event, with X
respect to which
information is not
otherwise called for
in Form 8-K, that the
registrant deems of
importance to
security holders.
-----------------------------------------------------------------------------------------------------------------------------------------
9.01 FINANCIAL STATEMENTS The Responsible Party applicable to reportable event.
AND EXHIBITS
-----------------------------------------------------------------------------------------------------------------------------------------
10-K Must be filed within 90 days of the fiscal year end for the registrant.
-----------------------------------------------------------------------------------------------------------------------------------------
9B OTHER INFORMATION
-----------------------------------------------------------------------------------------------------------------------------------------
Disclose any The Responsible Party for the applicable Form 8-K as indicated above.
information required
to be reported on
Form 8-K during the
fourth quarter
covered by the Form
10-K but not reported
-----------------------------------------------------------------------------------------------------------------------------------------
15 EXHIBITS AND
FINANCIAL STATEMENT
SCHEDULES
-----------------------------------------------------------------------------------------------------------------------------------------
ITEM 1112(B) - X X
SIGNIFICANT OBLIGOR
FINANCIAL INFORMATION
-----------------------------------------------------------------------------------------------------------------------------------------
ITEM 1114(B)(2) -
CREDIT ENHANCEMENT
PROVIDER FINANCIAL
INFORMATION
-----------------------------------------------------------------------------------------------------------------------------------------
Determining X
applicable
disclosure
threshold
-----------------------------------------------------------------------------------------------------------------------------------------
Requesting X
required
financial
information or
effecting
incorporation by
reference
-----------------------------------------------------------------------------------------------------------------------------------------
ITEM 1115(B) -
DERIVATIVE
COUNTERPARTY
FINANCIAL INFORMATION
-----------------------------------------------------------------------------------------------------------------------------------------
Determining X
current maximum
probable exposure
-----------------------------------------------------------------------------------------------------------------------------------------
Determining X
current
significance
percentage
-----------------------------------------------------------------------------------------------------------------------------------------
Requesting X
required
financial
information or
effecting
incorporation by
reference
-----------------------------------------------------------------------------------------------------------------------------------------
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, X X
affiliated Servicer,
other Servicer
servicing 20% or more
of pool assets at
time of report, other
material servicers
-----------------------------------------------------------------------------------------------------------------------------------------
Securities X
Administrator
-----------------------------------------------------------------------------------------------------------------------------------------
Originator of 20% or X X
more of pool assets
as of the Cut-off Date
-----------------------------------------------------------------------------------------------------------------------------------------
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, X X
affiliated Servicer,
other Servicer
servicing 20% or more
of pool assets at
time of report, other
material servicers
-----------------------------------------------------------------------------------------------------------------------------------------
Securities X
Administrator
-----------------------------------------------------------------------------------------------------------------------------------------
Originator X X
-----------------------------------------------------------------------------------------------------------------------------------------
Custodian X (with
respect to
affiliations
only)
-----------------------------------------------------------------------------------------------------------------------------------------
Credit X X
Enhancer/Support
Provider
-----------------------------------------------------------------------------------------------------------------------------------------
Significant Obligor X X
-----------------------------------------------------------------------------------------------------------------------------------------
ITEM 1122 - X X X X
ASSESSMENT OF
COMPLIANCE WITH
SERVICING CRITERIA
-----------------------------------------------------------------------------------------------------------------------------------------
ITEM 1123 - SERVICER X X
COMPLIANCE STATEMENT
-----------------------------------------------------------------------------------------------------------------------------------------
EXHIBIT H
ADDITIONAL DISCLOSURE NOTIFICATION
**SEND VIA FAX TO [XXX-XXX-XXXX] AND VIA EMAIL TO [_______________] AND VIA OVERNIGHT MAIL TO THE ADDRESS IMMEDIATELY BELOW
Xxxxx Fargo Bank, N.A. as [Securities Administrator]
Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
E-mail: xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx
Attn: Corporate Trust Services - ACE 2006-ASAP1 - SEC REPORT PROCESSING
ACE Securities Corp.
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxx
Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx
Fax: (000) 000-0000
Attn: ACE 2006-ASAP1
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 January 1, 2006 (the
"Pooling and Servicing Agreement"), among Ace Securities Corp., as depositor, Saxon Mortgage Services, Inc., as
servicer, Xxxxx Fargo, National Association, as master servicer and as securities administrator, and HSBC Bank USA,
National Association, as trustee, the undersigned, as [_____________________] hereby notifies you that certain events
have come to our attention that [will][may] need to be disclosed on Form [10-D][10-K][8-K].
DESCRIPTION OF ADDITIONAL FORM [10-D][10-K][8-K] DISCLOSURE:
LIST OF ANY ATTACHMENTS HERETO TO BE INCLUDED IN THE ADDITIONAL FORM [10-D][10-K][8-K] DISCLOSURE:
Any inquiries related to this notification should be directed to [______________], phone number [__________];
email address [_______________].
[NAME OF PARTY]
As [role]
By:
--------------------------
Name:
Title:
EXHIBIT I
SWAP AGREEMENT
Deutsche
Bank
Aktiengesellschaft
|
Date:
|
January
30, 2006
|
|
To:
|
HSBC
Bank USA, National Association, not in its individual capacity, but
solely
as trustee for the supplemental interest trust created pursuant to
the
Pooling and Servicing Agreement, with respect to the ACE Securities
Corp.
Home Equity Loan Trust, Series 2006-ASAP1 Asset Backed Pass Through
Certificates
|
|
Attention:
|
|
|
Facsimile
no.:
|
|
|
Our
Reference:
|
Global
No. N444188N
|
|
Re:
|
Interest
Rate Swap Transaction
|
Ladies
and Gentlemen:
The
purpose of this letter agreement ("Agreement") is to confirm the terms and
conditions of the Transaction entered into on the Trade Date specified below
(the "Transaction") between Deutsche Bank AG ("DBAG") and HSBC Bank USA,
National Association, not individually, but solely as trustee of the
Supplemental Interest Trust (“Counterparty”) created under the Pooling and
Servicing Agreement, dated and effective as of January 1,
2006, among Ace Securities Corp., as Depositor, Saxon Mortgage Services, Inc.,
as Servicer, Xxxxx Fargo Bank, National Association, as Master Servicer and
Securities Administrator, and HSBC Bank USA, National Association, as Trustee
(the “Pooling and Servicing Agreement”). This Agreement, which evidences a
complete and binding agreement between you and us to enter into the Transaction
on the terms set forth below, constitutes a "Confirmation" as referred to in
the
"ISDA Form Master Agreement" (as defined below), as well as a “Schedule” as
referred to in the ISDA Form Master Agreement.
1. This
Agreement is subject to the 2000
ISDA Definitions (the
“Definitions”), as published by the International Swaps and Derivatives
Association, Inc. (“ISDA”). You and we have agreed to enter into this Agreement
in lieu of negotiating a Schedule to the 1992 ISDA Master Agreement
(Multicurrency—Cross Border) form (the "ISDA Form Master Agreement") but,
rather, an ISDA Form Master Agreement shall be deemed to have been executed
by
you and us on the date we entered into the Transaction. In the event of any
inconsistency between the provisions of this Agreement and the Definitions
or
the ISDA Form Master Agreement, this Agreement shall prevail for purposes of
the
Transaction. Terms capitalized but not defined herein shall have the meanings
attributed to them in the Pooling and Servicing Agreement.
2. The
terms of the particular Transaction to which this Confirmation relates are
as
follows:
|
Notional
Amount:
|
With
respect to any Calculation Period, the amount set forth for such
period in
Schedule I attached hereto.
|
|
|
Trade
Date:
|
January
25, 2006
|
|
|
Effective
Date:
|
January
30, 2006
|
|
|
Termination
Date:
|
July
25, 2009
|
Fixed
Amounts:
|
Fixed
Rate Payer:
|
Counterparty
|
|
|
Fixed
Rate Payer Period End Dates:
|
The
25th day of each month, commencing February 25, 2006, through and
including the Termination Date, subject to No
adjustment
|
|
|
Fixed
Rate Payer Payment Dates:
|
One
Business Day prior to each Floating Rate Payer Period End
Date.
|
|
|
Fixed
Rate:
|
4.73
%
|
|
|
Fixed
Rate Day Count Fraction:
|
30/360
|
|
|
Additional
Fixed Payment
|
On
Effective Date, Counterparty will make a payment to DBAG of
USD$580,000.
|
Floating
Amounts:
|
Floating
Rate Payer:
|
DBAG
|
|
|
Floating
Rate Payer Period End Dates:
|
The
25th day of each month, commencing February 25, 2006, through and
including the Termination Date, subject to adjustment in accordance
with
the Modified Following Business Day Convention.
|
|
|
Floating
Rate Payer Payment Dates:
|
One
Business Day prior to each Floating Rate Payer Period End
Date.
|
|
|
Floating
Rate Option:
|
USD-LIBOR-BBA
|
|
|
Designated
Maturity:
|
1
month
|
|
|
Spread:
|
None
|
|
|
Floating
Rate Day Count Fraction:
|
Actual/360
|
|
|
Reset
Dates:
|
The
first day of each Calculation Period
|
|
|
Compounding:
|
Inapplicable
|
|
|
Calculation
Agent:
|
DBAG
|
|
Business
Days:
|
New
York
|
|
3.
Additional Provisions:
|
Each
party hereto is hereby advised and acknowledges that the other party
has
engaged in (or refrained from engaging in) substantial financial
transactions and has taken (or refrained from taking) other material
actions in reliance upon the entry by the parties into the Transaction
being entered into on the terms and conditions set forth herein and
in the
Confirmation relating to such Transaction, as
applicable.
|
4.
Provisions
Deemed Incorporated in a Schedule to the ISDA Form Master
Agreement:
1)
The parties agree that subparagraph (ii) of Section 2(c) of the ISDA
Form
Master Agreement will apply to any Transaction.
2)
Termination
Provisions.
Subject to the provisions of paragraph 13 below, for purposes of the ISDA Form
Master Agreement:
(a) "Specified
Entity" is not applicable to DBAG or Counterparty for any purpose.
(b) “Breach
of Agreement” provision of Section 5(a)(ii) will not apply to DBAG or
Counterparty.
(c) “Credit
Support Default” provisions of Section 5(a)(iii) will not apply to Counterparty
and will not apply to DBAG unless DBAG has obtained a guarantee or posted
collateral pursuant to paragraph 12 below.
(d) “Misrepresentation”
provisions of Section 5(a)(iv) will not apply to DBAG or
Counterparty.
(e) "Specified
Transaction" is not applicable to DBAG or Counterparty for any purpose, and,
accordingly, Section 5(a)(v) shall not apply to DBAG or
Counterparty.
(f) The
"Cross Default" provisions of Section 5(a)(vi) will not apply to DBAG or to
Counterparty.
(g) With
respect to the Counterparty, the "Bankruptcy" provision of Section 5(a)(vii)(2)
will be deleted in its entirety.
(h) The
"Merger Without Assumption" provisions of Section 5(a)(viii) will not apply
to
Counterparty.
(i) The
"Tax Event Upon Merger" provisions of Section 5(b)(iii) will not apply to DBAG
as Burdened Party.
(j) The
"Credit Event Upon Merger" provisions of Section 5(b)(iv) will not apply to
DBAG
or to Counterparty.
(k) The
"Automatic Early Termination" provision of Section 6(a) will not apply to DBAG
or to Counterparty.
(l) Payments
on Early Termination. For the purpose of Section 6(e) of the ISDA Form Master
Agreement:
(i) Market
Quotation will apply.
(ii) The
Second Method will apply.
(m) "Termination
Currency" means United States Dollars.
3)
Tax Representations.
|
Payer
Representations. For the purpose of Section 3(e) of the
ISDA Form Master
Agreement, DBAG and Counterparty make the following
representations:
|
|
It
is not required by any applicable law, as modified by the practice
of any
relevant governmental revenue authority, of any Relevant Jurisdiction
to
make any deduction or withholding for or on account of any Tax from
any
payment (other than interest under Section 2(e), 6(d)(ii) or 6(e)
of
the
ISDA Form Master
Agreement) to be made by it to the other party under this Agreement.
In
making this representation, it may rely on (i) the accuracy of any
representations made by the other party pursuant to Section 3(f)
of
the
ISDA Form Master
Agreement, (ii) the satisfaction of the agreement contained in Section
4(a)(i) or 4(a)(iii) of the
ISDA Form Master
Agreement and the accuracy and effectiveness of any document provided
by
the other party pursuant to Section 4(a)(i) or 4(a)(iii) of the
ISDA Form Master
Agreement and (iii) the satisfaction of the agreement of the other
party
contained in Section 4(d) of the
ISDA Form Master
Agreement, provided that it shall not be a breach of this representation
where reliance is placed on clause (ii) and the other party does
not
deliver a form or document under Section 4(a)(iii) by reason of material
prejudice of its legal or commercial
position.
|
|
Payee
Representations. For the purpose of Section 3 (f) of the
ISDA Form Master
Agreement, DBAG and Counterparty make the following
representations:
|
(i) DBAG
represents that it
is a “foreign person” within the meaning of the applicable U.S. Treasury
Regulations concerning information reporting and backup withholding tax (as
in
effect on January 1, 2001), unless DBAG provides written notice to Counterparty
that it is no longer a foreign person. In respect of this Transaction it enters
into through an office or discretionary agent in the United States or which
otherwise is allocated for United States federal income tax purposes to such
United States trade or business, each payment received or to be received by
it
under such Transaction will be effectively connected with its conduct of a
trade
or business in the United States.
(ii)
Counterparty
represents that it is trustee for the Supplement Interest Trust created under
the Pooling and Servicing Agreement.
4)
The ISDA Form Master Agreement is hereby amended as follows:
(a)
The word “third” shall be replaced by the word “second” in the third line of
Section 5(a)(i) of the ISDA Form Master Agreement;
5)
Documents
to be Delivered.
For the purpose of Section 4(a)(i) and (ii) of the ISDA Form Master Agreement,
each party agrees to deliver the following documents, as
applicable:
(1) Tax
forms, documents, or certificates to be delivered are:
|
Party
required to deliver document
|
Form/Document/
Certificate
|
Date
by which to
be
delivered
|
|
DBAG
and
the
Counterparty
|
Any
document required or reasonably requested to allow the other party
to make
payments under this Agreement without any deduction or withholding
for or
on the account of any Tax or with such deduction or withholding at
a
reduced rate
|
Promptly
after the earlier of (i) reasonable demand by either party or (ii)
learning that such form or document is
required
|
(2) Other
documents to be delivered are:
|
Party
required to deliver document
|
Form/Document/
Certificate
|
Date
by which to
be
delivered
|
Covered
by Section 3(d) Representation
|
|
DBAG
and
the
Counterparty
|
Any
documents required by the receiving party to evidence the authority
of the
delivering party or its Credit Support Provider, if any, for it to
execute
and deliver this Agreement, any Confirmation, and any Credit Support
Documents to which it is a party, and to evidence the authority of
the
delivering party or its Credit Support Provider to perform its obligations
under this Agreement, such Confirmation and/or Credit Support Document,
as
the case may be
|
Upon
the execution and delivery of this Agreement and such
Confirmation
|
Yes
|
|
DBAG
and
the
Counterparty
|
A
certificate of an authorized officer of the party, as to the incumbency
and authority of the respective officers of the party signing this
Agreement, any relevant Credit Support Document, or any Confirmation,
as
the case may be
|
Upon
the execution and delivery of this Agreement and such
Confirmation
|
Yes
|
6)
Miscellaneous
|
(a)
|
Address
for Notices: For the purposes of Section 12(a) of the ISDA Form
Master Agreement:
|
|
Addresses
for notices or communications to DBAG:
|
|
|
Addresses
for notices to DBAG under Sections 5 or 6 (other than notices under
Section 5(a)(i)) shall be sent to:
|
|
|
Deutsche
Bank AG, Head Office
|
|
|
Xxxxxxxxxxxx
00
|
|
|
00000
Xxxxxxxxx
|
|
|
XXXXXXX
|
|
|
Attention:
Legal Department
|
|
|
Telex
No: 411836 or 416731 or 41233
|
|
|
Answerback:
DBF-D
|
|
|
All
other notices to DBAG shall be sent directly to the Office through
which
DBAG is acting for the relevant Transaction, using the address and
contact
particulars specified in the Confirmation of that Transaction or
otherwise
notified.
|
|
|
Address
for notices or communications to the
Counterparty:
|
| Address: |
HSBC Bank USA, National Association
000 Xxxxx Xxxxxx
Xxx
Xxxx, XX 00000
Attention:
ACE Securities Corp., 2006-ASAP1
|
|
| (For all purposes) | ||
|
With
copy to:
|
Xxxxx
Fargo Bank, N.A.
0000
Xxx Xxxxxxxxx Xxxx
Xxxxxxxx,
XX 00000
Attention:
Client Manager - Ace 2006-ASAP1
Tel:
000-000-0000
Fax:
000-000-0000
|
|
|
(b)
|
Process
Agent. For the purpose of Section 13(c):
|
|
|
|
DBAG
appoints as its Not
Applicable
|
|
|
|
The
Counterparty appoints as its
Not Applicable
|
|
|
(c)
|
Offices.
The provisions of Section 10(a) will not apply to this
Agreement.
|
|
|
(d)
|
Multibranch
Party. For the purpose of Section 10(c) of the ISDA Form Master
Agreement:
|
|
|
DBAG
is not a Multibranch Party.
|
||
|
The
Counterparty is not a Multibranch Party.
|
||
|
(e)
|
Calculation
Agent. The Calculation Agent is DBAG.
|
|
|
(f)
|
Credit
Support Document.
|
|
|
DBAG:
Not applicable, except for any guarantee or contingent agreement
delivered
pursuant to paragraph 12 below.
|
||
|
The
Counterparty: Not Applicable
|
||
|
(g)
|
Credit
Support Provider.
|
|
|
DBAG:Not
Applicable for so long as no Credit Support Document is delivered
under
paragraph 12 below, otherwise, to the party that is the primary obligor
under the Credit Support Document.
|
||
|
The
Counterparty:Not Applicable
|
||
(h) Governing
Law. The
parties to this Agreement hereby agree that the law of the State of New York
shall govern their rights and duties in whole without regard to conflict of
law
provisions thereof other than New York General Obligations Law Sections 5-1401
and 5-1402.
(i) Severability. If
any term, provision, covenant, or condition of this Agreement, or the
application thereof to any party or circumstance, shall be held to be invalid
or
unenforceable (in whole or in part) for any reason, the remaining terms,
provisions, covenants, and conditions hereof shall continue in full force and
effect as if this Agreement had been executed with the invalid or unenforceable
portion eliminated, so long as this Agreement as so modified continues to
express, without material change, the original intentions of the parties as
to
the subject matter of this Agreement and the deletion of such portion of this
Agreement will not substantially impair the respective benefits or expectations
of the parties.
The
parties shall endeavor to engage in good faith negotiations to replace any
invalid or unenforceable term, provision, covenant or condition with a valid
or
enforceable term, provision, covenant or condition, the economic effect of
which
comes as close as possible to that of the invalid or unenforceable term,
provision, covenant or condition.
(j) Consent
to Recording.
Each party hereto consents to the monitoring or recording, at any time and
from
time to time, by the other party of any and all communications between officers
or employees of the parties, waives any further notice of such monitoring or
recording, and agrees to notify its officers and employees of such monitoring
or
recording.
(k) Waiver
of Jury Trial. Each
party waives any right it may have to a trial by jury in respect of any
Proceedings relating to this Agreement or any Credit Support Document.
(l) Trustee
Capacity. It is expressly understood and agreed by the parties hereto that
insofar as this Confirmation is executed by the Trustee (i) this Confirmation
is
executed and delivered by HSBC Bank USA, National Association not in its
individual capacity but solely as trustee for the Supplement Interest Trust
created under the Pooling and Servicing Agreement referred to in this
Confirmation in the exercise of the powers and authority conferred and invested
in it thereunder (ii) each of the representations, undertakings and agreements
herein made on behalf of the Supplemental Interest Trust is made and intended
not as personal representations, undertakings and agreements by HSBC Bank,
National Association but is made and intended for the purposes of binding only
the Supplement Interest Trust, (iii) nothing herein contained shall be construed
as creating any liability on the part of HSBC Bank USA, National Association,
individually or personally, to perform any covenant either expressed or implied
contained herein, all such liability, if any, being expressly waived by the
parties hereto and by any Person claiming by, through or under the parties
hereto, (iv) under no circumstances shall HSBC Bank USA, National Association
in
its individual capacity be personally liable for the payment of any indebtedness
or expenses or be personally liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken under this Confirmation
or any other related documents, and (v) the parties hereto acknowledge and
agree
that under (a) the Pooling and Servicing Agreement, and (b) this Agreement,
the
Securities Administrator may act for Counterparty hereunder, and DBAG hereby
acknowledges and agrees that it will, unless otherwise directed by the
Supplemental Interest Trust Trustee or the Securities Administrator, make all
payments hereunder to the account specified below. DBAG shall be entitled to
rely, shall be fully protected in relying, and shall incur no liability from
relying in good faith, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, facsimile or telephone message,
statement or other document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by the Securities Administrator.
(m) Proceedings.
DBAG shall not institute against or cause any other person to institute against,
or join any other person in instituting against, Ace Securities Corp., Ace
Securities Corp. Home Equity Loan Trust, Series 2006-ASAP1 or HSBC Bank USA,
National Association, not individually, but solely as Trustee for the
Supplemental Interest Trust any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings under any federal
or
state bankruptcy or similar law for a period of one year and one day (or, if
longer, the applicable preference period) following payment in full of the
Certificates. This provision will survive the termination of this
Agreement.
(n) DBAG
hereby agrees that, notwithstanding any provision of this agreement to the
contrary, Counterparty’s obligations to pay any amounts owing under this
Agreement shall be subject to Section 5.01 of the Pooling and Servicing
Agreement and DBAG’s right to receive payment of such amounts shall be subject
to Section 5.01 of the Pooling and Servicing Agreement. This provision will
survive the termination of this Agreement.
7)
"Affiliate." DBAG and Counterparty shall be deemed to not have any Affiliates
for purposes of this Agreement, including for purposes of Section 6(b)(ii).
This
provision will survive the termination of this Agreement.
8)
Section 3 of the ISDA Form Master Agreement is hereby amended by adding at
the
end thereof the following subsection (g):
"(g) Relationship
Between Parties.
Each
party represents to the other party on each date when it enters into a
Transaction that:--
(1)
Nonreliance.
It is not relying on any statement or representation of the other party
regarding the Transaction (whether written or oral), other than the
representations expressly made in this Agreement or the Confirmation in respect
of that Transaction.
(2)
Evaluation
and Understanding.
(i)
DBAG is acting for its own account and HSBC Bank USA, National Association
is
acting as trustee for the Supplemental Interest Trust created under the Pooling
and Servicing Agreement and not for its own account. Each party has the capacity
to evaluate (internally or through independent professional advice) the
Transaction and has made its own decision to enter into the
Transaction;
(ii)
It understands the terms, conditions and risks of the Transaction and is willing
and able to accept those terms and conditions and to assume those risks,
financially and otherwise; and
(3) Purpose.
It is an “eligible swap participant” as such term is defined in Section
35.1(b)(2) of the regulations (17 C.F.R 35) promulgated under, and an “eligible
contract participant” as defined in Section 1(a)(12) of, the Commodity Exchange
Act, as amended, and it is entering into the Transaction for the purposes of
managing its borrowings or investments, hedging its underlying assets or
liabilities or in connection with a line of business.
(4) Status
of Parties.
The other party is not acting as an agent, fiduciary or advisor for it in
respect of the Transaction.”
9)
Set-off.
Notwithstanding any provision of this Agreement or any other existing or future
agreement, each party irrevocably waives any and all rights it may have to
set
off, net, recoup or otherwise withhold or suspend or condition payment or
performance of any obligation between it and the other party hereunder against
any obligation between it and the other party under any other agreements. The
provisions for Set-off set forth in Section 6(e) of the Agreement shall not
apply for purposes of this Transaction.
10)
Transfer,
Amendment and Assignment.
No transfer, amendment, waiver, supplement, assignment or other modification
of
this Transaction shall be permitted by either party unless each of Standard
& Poor’s Ratings Service, a division of The XxXxxx-Xxxx Companies, Inc.
(“S&P”), Dominion Bond Rating Service Limited (“DBRS”) and Xxxxx’x Investors
Service, Inc. (“Moody’s”) has been provided notice of the same and confirms in
writing (including by facsimile transmission) that it will not downgrade,
qualify, withdraw or otherwise modify its then-current rating of the
Certificates.
11)
Additional
Termination Events.
The following Additional Termination Events will apply, in each case with
respect Counterparty as the sole Affected Party (unless otherwise provided
below):
|
(i)
|
DBAG
fails to comply with the Rating Agency Downgrade provisions as set
forth
in Section 12 below. For all purposes of this Agreement, DBAG shall
be the
sole Affected Party with respect to the occurrence of a Termination
Event
described in this Section 11(i).
|
|
|
(ii)
|
With
respect to Counterparty only, any amendment to the Pooling and Servicing
Agreement which materially adversely affects any of DBAG's rights
thereunder is made without prior written consent of DBAG, where such
consent is required under the Pooling and Servicing
Agreement.
|
|
|
(iii)
|
If
the Trustee is unable to pay its Class A Certificates or fails or
admits
in writing its inability to pay its Class A Certificates as they
become
due.
|
|
|
(iv)
|
If,
at any time, the Master Servicer purchases the Mortgage Loans pursuant
to
Section 10.01 of the Pooling and Servicing Agreement, then an Additional
Termination Event shall have occurred and Counterparty shall be the
sole
Affected Party with respect thereto; provided, however, that
notwithstanding Section 6(b)(iv) of the ISDA Form Master Agreement,
only
Counterparty shall have the right to designate an Early Termination
Date
in respect of this Additional Termination Event.
|
|
|
(v)
|
If,
upon the occurrence of a Swap Disclosure Event (as defined in Part
13
below) DBAG has not, within 15 days after such Swap Disclosure Event
complied with any of the provisions set forth in Part 13(iii) below,
then
an Additional Termination Event shall have occurred with respect
to DBAG
and DBAG shall be the sole Affected Party with respect to such Additional
Termination Event.
|
12)
Rating
Agency Downgrade.
In the event that DBAG’s short-term unsecured and unsubordinated debt rating is
withdrawn or reduced below “A-1” by S&P or, if DBAG has both a long-term
credit rating and a short-term credit rating from Moody’s, and either its
long-term unsecured and unsubordinated debt rating is withdrawn or reduced
below
“A2” by Moody’s or its short-term credit rating is withdrawn or reduced below
“P-1” by Moody’s (and together with S&P and DBRS, the “Swap Rating
Agencies”, and such rating thresholds, “Approved Rating Thresholds”), then
within 30 days after such rating withdrawal or downgrade, DBAG shall, subject
to
the Rating Agency Condition and at its own expense, either (i) cause another
entity to replace DBAG as party to this Agreement that meets or exceeds the
Approved Rating Thresholds on terms substantially similar to this Agreement,
(ii) obtain a guaranty of, or a contingent agreement of another person with
the
Approved Rating Thresholds, to honor, DBAG’s obligations under this Agreement,
(iii) post collateral which will be sufficient to restore the immediately prior
ratings of the Certificates, or (iv) establish any other arrangement
satisfactory to the Swap Rating Agencies, which will be sufficient to restore
the immediately prior ratings of the Certificates. In the event that DBAG’s
long-term unsecured and unsubordinated debt rating is reduced below “BBB-” or
its short-term unsecured and unsubordinated debt rating is reduced below “A-3”
or is withdrawn by S&P, then within 10 days after such rating withdrawal or
downgrade, DBAG shall, subject to the Rating Agency Condition and at its own
expense, either (i) cause another entity to replace DBAG as party to this
Agreement that meets or exceeds the Approved Rating Thresholds on terms
substantially similar to this Agreement or (ii) obtain a guaranty of, or a
contingent agreement of another person with the Approved Rating Thresholds,
to
honor, DBAG’s obligations under this Agreement. For purposes of this provision,
“Rating Agency Condition” means, with respect to any particular proposed act or
omission to act hereunder that the party acting or failing to act must consult
with each of the Swap Rating Agencies then providing a rating of the
Certificates and receive from each of the Swap Rating Agencies a prior written
confirmation that the proposed action or inaction would not cause a downgrade
or
withdrawal of the then-current rating of the Certificates.
13)
Compliance
with Regulation AB.
|
(i)
|
DBAG
agrees and acknowledges that Ace Securities Corp. (“ACE”) is required
under Regulation AB under the Securities Act of 1933, as amended,
and the
Securities Exchange Act of 1934, as amended (the “Exchange Act”)
(“Regulation AB”), to disclose certain financial information regarding
DBAG or its group of affiliated entities, if applicable, depending
on the
aggregate “significant percentage” of this Agreement and any other
derivative contracts between DBAG or its group of affiliated entities,
if
applicable, and Counterparty, as calculated from time to time in
accordance with Item 1115 of Regulation AB.
|
|
|
(ii)
|
It
shall be a swap disclosure event (“Swap Disclosure Event”) if, on any
Business Day after the date hereof, ACE requests from DBAG the applicable
financial information described in Item 1115 of Regulation AB (such
request to be based on a reasonable determination by ACE, in good
faith,
that such information is required under Regulation AB) (the “Swap
Financial Disclosure”).
|
|
|
(iii)
|
Upon
the occurrence of a Swap Disclosure Event, DBAG, at its own expense,
shall
(a) provide to ACE the Swap Financial Disclosure, (b) secure another
entity to replace DBAG as party to this Agreement on terms substantially
similar to this Agreement which entity (or a guarantor therefore)
meets or
exceeds the Approved Rating Thresholds and which satisfies the Rating
Agency Condition and which entity is able to comply with the requirements
of Item 1115 of Regulation AB or (c) obtain a guaranty of the DBAG’s
obligations under this Agreement from an affiliate of the DBAG, subject
to
the Rating Agency Condition, that is able to comply with the financial
information disclosure requirements of Item 1115 of Regulation AB,
such
that disclosure provided in respect of the affiliate will satisfy
any
disclosure requirements applicable to the Swap Provider, and cause
such
affiliate to provide Swap Financial Disclosure. If permitted by Regulation
AB, any required Swap Financial Disclosure may be provided by
incorporation by reference from reports filed pursuant to the Exchange
Act.
|
|
|
(iv)
|
DBAG
and the primary obligor under any Credit Support Document agree that,
in
the event that DBAG provides Swap Financial Disclosure to ACE in
accordance with Part 13(iii)(a) or causes its affiliate to provide
Swap
Financial Disclosure to ACE in accordance with Part 13(iii)(c), DBAG
and
such primary obligor will indemnify and hold harmless ACE, its respective
directors or officers and any person controlling ACE, from and against
any
and all losses, claims, damages and liabilities caused by any untrue
statement or alleged untrue statement of a material fact contained
in such
Swap Financial Disclosure or caused by any omission or alleged omission
to
state in such Swap Financial Disclosure a material fact, when considered
in conjunction with any other information regarding Party A or the
derivative instrument being written by Party A in the final prospectus
for
ACE-2006-SL1, required to be stated therein or necessary to make
the
statements therein, in light of the circumstances under which they
were
made, not misleading.
|
14)
Third
Party Beneficiary.
ACE shall be an express third party beneficiary of this Agreement as if a party
hereto to the extent of ACE’s rights explicitly specified herein.
15)
Deduction
or Withholding for Tax.
The provisions of Section 2(d)(i)(4) and 2(d)(ii) of the ISDA Form Master
Agreement shall not apply to Counterparty and Counterparty shall not be required
to pay any additional amounts referred to therein.
5. Account
Details:
Account
Details for DBAG:
Deutsche
Bank Trust Company Americas,
New York
Acct#
01
473 969
Swift
Code: XXXXXX00
Account
Details for Counterparty:
Xxxxx
Fargo Bank, NA
ABA
# 000000000
Account
Name: SAS Clearing
Account
# 0000000000
FFC
to: 50892101
6. Offices:
The
Office of DBAG for this Transaction is New York
7. Please
confirm that the foregoing correctly sets forth the terms of our agreement
by
having an authorized officer sign this Confirmation and return it via facsimile
to:
|
Attention:
Derivative Documentation
|
||
|
Telephone:
00 00 0000 0000
|
||
|
Facsimile:
44 20 7545 9761
|
||
|
E-mail:
xxxxxxxxxx.xxxxxxxxxxxxx@xx.xxx
|
This
message will be the only form of Confirmation dispatched by us. If you wish
to
exchange hard copy forms of this Confirmation, please contact us.
Yours
sincerely,
DEUTSCHE
BANK AG - New York Branch
By: ____________________________________
Name: __________________________________
Title: Authorized
Signatory
By: ____________________________________
Name: __________________________________
Title: Authorized
Signatory
Confirmed
as of the date first written above:
HSBC
Bank USA, National Association, not in its individual capacity, but solely
as
trustee for the Supplemental Interest Trust, with respect to the ACE Securities
Corp. Home Equity Loan Trust, Series 2006-ASAP1 Asset Backed Pass Through
Certificates.
By: ____________________________________
Name: __________________________________
Title: ___________________________________
SCHEDULE
I
(With
respect to each Fixed Rate Payer Period End Date, all such dates are with No
Adjustment, and with respect to each Floating Rate Payer Period End Date, all
such dates are subject to adjustment in accordance with the Modified Following
Business Day Convention.)
|
Accrue
from Date
|
Accrue
to Date
|
Notional
|
|
1/30/2006
|
2/25/2006
|
493,170,820.66
|
|
2/25/2006
|
3/25/2006
|
483,835,599.99
|
|
3/25/2006
|
4/25/2006
|
473,180,426.09
|
|
4/25/2006
|
5/25/2006
|
461,243,495.38
|
|
5/25/2006
|
6/25/2006
|
448,074,867.45
|
|
6/25/2006
|
7/25/2006
|
433,738,140.19
|
|
7/25/2006
|
8/25/2006
|
418,338,956.35
|
|
8/25/2006
|
9/25/2006
|
402,007,921.51
|
|
9/25/2006
|
10/25/2006
|
385,140,827.31
|
|
10/25/2006
|
11/25/2006
|
368,966,512.53
|
|
11/25/2006
|
12/25/2006
|
353,472,178.12
|
|
12/25/2006
|
1/25/2007
|
338,629,343.24
|
|
1/25/2007
|
2/25/2007
|
324,410,581.53
|
|
2/25/2007
|
3/25/2007
|
310,789,622.49
|
|
3/25/2007
|
4/25/2007
|
297,741,302.63
|
|
4/25/2007
|
5/25/2007
|
285,233,673.14
|
|
5/25/2007
|
6/25/2007
|
273,195,799.14
|
|
6/25/2007
|
7/25/2007
|
261,019,481.54
|
|
7/25/2007
|
8/25/2007
|
249,021,222.28
|
|
8/25/2007
|
9/25/2007
|
232,405,131.39
|
|
9/25/2007
|
10/25/2007
|
195,026,717.76
|
|
10/25/2007
|
11/25/2007
|
164,077,802.44
|
|
11/25/2007
|
12/25/2007
|
138,624,822.44
|
|
12/25/2007
|
1/25/2008
|
119,843,370.76
|
|
1/25/2008
|
2/25/2008
|
114,088,521.80
|
|
2/25/2008
|
3/25/2008
|
108,756,918.50
|
|
3/25/2008
|
4/25/2008
|
103,676,905.52
|
|
4/25/2008
|
5/25/2008
|
98,836,538.26
|
|
5/25/2008
|
6/25/2008
|
94,224,399.96
|
|
6/25/2008
|
7/25/2008
|
89,829,657.28
|
|
7/25/2008
|
8/25/2008
|
85,642,003.43
|
|
8/25/2008
|
9/25/2008
|
81,651,573.18
|
|
9/25/2008
|
10/25/2008
|
77,849,272.99
|
|
10/25/2008
|
11/25/2008
|
74,226,505.09
|
|
11/25/2008
|
12/25/2008
|
70,774,107.29
|
|
12/25/2008
|
1/25/2009
|
67,483,990.83
|
|
1/25/2009
|
2/25/2009
|
64,348,465.22
|
|
2/25/2009
|
3/25/2009
|
61,360,199.25
|
|
3/25/2009
|
4/25/2009
|
58,512,216.56
|
|
4/25/2009
|
5/25/2009
|
55,797,892.91
|
|
5/25/2009
|
6/25/2009
|
53,210,879.95
|
|
6/25/2009
|
7/25/2009
|
50,745,152.52
|
SCHEDULE 1
MORTGAGE LOAN SCHEDULE
[PROVIDED UPON REQUEST]
SCHEDULE 2
PREPAYMENT CHARGE SCHEDULE
[FILED BY PAPER]
SCHEDULE 3
[RESERVED]
SCHEDULE 4
STANDARD FILE LAYOUT- DELINQUENCY REPORTING
EXHIBIT: STANDARD FILE LAYOUT - DELINQUENCY REPORTING
-----------------------------------------------------------------------------------------------------------------
COLUMN/HEADER NAME DESCRIPTION DECIMAL FORMAT
COMMENT
-----------------------------------------------------------------------------------------------------------------
SERVICER_LOAN_NBR A unique number assigned to a loan by the
Servicer. This may be different than the
LOAN_NBR
-----------------------------------------------------------------------------------------------------------------
LOAN_NBR A unique identifier assigned to each loan by the
originator.
-----------------------------------------------------------------------------------------------------------------
CLIENT_NBR Servicer Client Number
-----------------------------------------------------------------------------------------------------------------
SERV_INVESTOR_NBR Contains a unique number as assigned by an
external servicer to identify a group of loans
in their system.
-----------------------------------------------------------------------------------------------------------------
BORROWER_FIRST_NAME First Name of the Borrower.
-----------------------------------------------------------------------------------------------------------------
BORROWER_LAST_NAME Last name of the borrower.
-----------------------------------------------------------------------------------------------------------------
PROP_ADDRESS Street Name and Number of Property
-----------------------------------------------------------------------------------------------------------------
PROP_STATE The state where the property located.
-----------------------------------------------------------------------------------------------------------------
PROP_ZIP Zip code where the property is located.
-----------------------------------------------------------------------------------------------------------------
BORR_NEXT_PAY_DUE_DATE The date that the borrower's next payment is due MM/DD/YYYY
to the servicer at the end of processing cycle,
as reported by Servicer.
-----------------------------------------------------------------------------------------------------------------
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 MM/DD/YYYY
been approved by the courts
-----------------------------------------------------------------------------------------------------------------
BANKRUPTCY_DCHRG_DISM_DATE The Date The Loan Is Removed From Bankruptcy. MM/DD/YYYY
Either by Dismissal, Discharged and/or a Motion
For Relief Was Granted.
-----------------------------------------------------------------------------------------------------------------
LOSS_MIT_APPR_DATE The Date The Loss Mitigation Was Approved By The MM/DD/YYYY
Servicer
-----------------------------------------------------------------------------------------------------------------
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 MM/DD/YYYY
To End/Close
-----------------------------------------------------------------------------------------------------------------
LOSS_MIT_ACT_COMP_DATE The Date The Loss Mitigation Is Actually MM/DD/YYYY
Completed
-----------------------------------------------------------------------------------------------------------------
FRCLSR_APPROVED_DATE The date DA Admin sends a letter to the servicer MM/DD/YYYY
with instructions to begin foreclosure
proceedings.
-----------------------------------------------------------------------------------------------------------------
ATTORNEY_REFERRAL_DATE Date File Was Referred To Attorney to Pursue MM/DD/YYYY
Foreclosure
-----------------------------------------------------------------------------------------------------------------
FIRST_LEGAL_DATE Notice of 1st legal filed by an Attorney in a MM/DD/YYYY
Foreclosure Action
-----------------------------------------------------------------------------------------------------------------
FRCLSR_SALE_EXPECTED_DATE The date by which a foreclosure sale is expected MM/DD/YYYY
to occur.
-----------------------------------------------------------------------------------------------------------------
FRCLSR_SALE_DATE The actual date of the foreclosure sale. MM/DD/YYYY
-----------------------------------------------------------------------------------------------------------------
FRCLSR_SALE_AMT The amount a property sold for at the 2 No
foreclosure sale. commas(,)
or dollar
signs ($)
-----------------------------------------------------------------------------------------------------------------
EVICTION_START_DATE The date the servicer initiates eviction of the MM/DD/YYYY
borrower.
-----------------------------------------------------------------------------------------------------------------
EVICTION_COMPLETED_DATE The date the court revokes legal possession of MM/DD/YYYY
the property from the borrower.
-----------------------------------------------------------------------------------------------------------------
LIST_PRICE The price at which an REO property is marketed. 2 No
commas(,)
or dollar
signs ($)
-----------------------------------------------------------------------------------------------------------------
LIST_DATE The date an REO property is listed at a MM/DD/YYYY
particular price.
-----------------------------------------------------------------------------------------------------------------
OFFER_AMT The dollar value of an offer for an REO property. 2 No
commas(,)
or dollar
signs ($)
-----------------------------------------------------------------------------------------------------------------
OFFER_DATE_TIME The date an offer is received by DA Admin or by MM/DD/YYYY
the Servicer.
-----------------------------------------------------------------------------------------------------------------
REO_CLOSING_DATE The date the REO sale of the property is MM/DD/YYYY
scheduled to close.
-----------------------------------------------------------------------------------------------------------------
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 2
on brokers price opinion or appraisal.
-----------------------------------------------------------------------------------------------------------------
REPAIRED_PROP_VAL The amount the property would be worth if 2
repairs are completed pursuant to a broker's
price opinion or appraisal.
-----------------------------------------------------------------------------------------------------------------
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 MM/DD/YYYY
Mortgage Insurance Company.
-----------------------------------------------------------------------------------------------------------------
MI_CLAIM_AMT Amount of Mortgage Insurance Claim Filed No
commas(,)
or dollar
signs ($)
-----------------------------------------------------------------------------------------------------------------
MI_CLAIM_PAID_DATE Date Mortgage Insurance Company Disbursed Claim MM/DD/YYYY
Payment
-----------------------------------------------------------------------------------------------------------------
MI_CLAIM_AMT_PAID Amount Mortgage Insurance Company Paid On Claim 2 No
commas(,)
or dollar
signs ($)
-----------------------------------------------------------------------------------------------------------------
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 ($)
-----------------------------------------------------------------------------------------------------------------
POOL_CLAIM_PAID_DATE Date Claim Was Settled and The Check Was Issued MM/DD/YYYY
By The Pool Insurer
-----------------------------------------------------------------------------------------------------------------
POOL_CLAIM_AMT_PAID Amount Paid On Claim By Pool Insurance Company 2 No
commas(,)
or dollar
signs ($)
-----------------------------------------------------------------------------------------------------------------
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:
o ASUM- Approved Assumption
o BAP- Borrower Assistance Program
o CO- Charge Off
o DIL- Deed-in-Lieu
o FFA- Formal Forbearance Agreement
o MOD- Loan Modification
o PRE- Pre-Sale
o SS- Short Sale
o MISC- Anything else approved by the PMI or Pool Insurer
NOTE: Xxxxx Fargo Bank will accept alternative Loss Mitigation Types to those above, provided that they are consistent
with industry standards. If Loss Mitigation Types other than those above are used, the Servicer must supply Xxxxx Fargo
Bank with a description of each of the Loss Mitigation Types prior to sending the file.
The OCCUPANT CODE field should show the current status of the property code as follows:
o Mortgagor
o Tenant
o Unknown
o Vacant
The PROPERTY CONDITION field should show the last reported condition of the property as follows:
o Damaged
o Excellent
o Fair
o Gone
o Good
o Poor
o Special Hazard
o 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
---------------------------- ------------------------------- ------------------------------------
XXXXX FARGO BANK, N.A. LOAN NO._____________________________
Borrower's Name: _________________________________________________________
Property Address: _________________________________________________________
LIQUIDATION TYPE: REO SALE 3RD PARTY SALE SHORT SALE CHARGE OFF
WAS THIS LOAN GRANTED A BANKRUPTCY DEFICIENCY OR CRAMDOWN YES NO
If "Yes", provide deficiency or cramdown amount _______________________________
LIQUIDATION AND ACQUISITION EXPENSES:
(1) Actual Unpaid Principal Balance of Mortgage Loan $ ______________ (1)
(2)Interest accrued at Net Rate ________________ (2)
(3)Accrued Servicing Fees ________________ (3)
(4)Attorney's Fees ________________ (4)
(5)Taxes (see page 2) ________________ (5)
(6)Property Maintenance ________________ (6)
(7)MI/Hazard Insurance Premiums (see page 2) ________________ (7)
(8)Utility Expenses ________________ (8)
(9)Appraisal/BPO ________________ (9)
(10) Property Inspections ________________ (10)
(11) FC Costs/Other Legal Expenses ________________ (11)
(12) Other (itemize) ________________ (12)
Cash for Keys__________________________ ________________ (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 ________________ (18a) HUD Part A
________________ (18b) HUD Part B
(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 DATE PAID PERIOD OF TOTAL PAID BASE AMOUNT PENALTIES INTEREST
(TAX /INS.) COVERAGE
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------
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 Text up to 10 digits 20
Servicer to define a group
of loans.
------------------------------------------------------------------------------------------------------
LOAN_NBR A unique identifier assigned Text up to 10 digits 10
to each loan by the investor.
------------------------------------------------------------------------------------------------------
SERVICER_LOAN_NBR A unique number assigned to Text up to 10 digits 10
a loan by the Servicer.
This may be different than
the LOAN_NBR.
------------------------------------------------------------------------------------------------------
BORROWER_NAME The borrower name as Maximum length of 30 30
received in the file. It is (Last, First)
not separated by first and
last name.
------------------------------------------------------------------------------------------------------
SCHED_PAY_AMT Scheduled monthly principal 2 No commas(,) or dollar 11
and scheduled interest signs ($)
payment that a borrower is
expected to pay, P&I
constant.
------------------------------------------------------------------------------------------------------
NOTE_INT_RATE The loan interest rate as 4 Max length of 6 6
reported by the Servicer.
------------------------------------------------------------------------------------------------------
NET_INT_RATE The loan gross interest rate 4 Max length of 6 6
less the service fee rate as
reported by the Servicer.
------------------------------------------------------------------------------------------------------
SERV_FEE_RATE The servicer's fee rate for 4 Max length of 6 6
a loan as reported by the
Servicer.
------------------------------------------------------------------------------------------------------
SERV_FEE_AMT The servicer's fee amount 2 No commas(,) or dollar 11
for a loan as reported by signs ($)
the Servicer.
------------------------------------------------------------------------------------------------------
NEW_PAY_AMT The new loan payment amount 2 No commas(,) or dollar 11
as reported by the Servicer. signs ($)
------------------------------------------------------------------------------------------------------
NEW_LOAN_RATE The new loan rate as 4 Max length of 6 6
reported by the Servicer.
------------------------------------------------------------------------------------------------------
ARM_INDEX_RATE The index the Servicer is 4 Max length of 6 6
using to calculate a
forecasted rate.
------------------------------------------------------------------------------------------------------
ACTL_BEG_PRIN_BAL The borrower's actual 2 No commas(,) or dollar 11
principal balance at the signs ($)
beginning of the processing
cycle.
------------------------------------------------------------------------------------------------------
ACTL_END_PRIN_BAL The borrower's actual 2 No commas(,) or dollar 11
principal balance at the end signs ($)
of the processing cycle.
------------------------------------------------------------------------------------------------------
BORR_NEXT_PAY_DUE_DATE The date at the end of MM/DD/YYYY 10
processing cycle that the
borrower's next payment is
due to the Servicer, as
reported by Servicer.
------------------------------------------------------------------------------------------------------
SERV_CURT_AMT_1 The first curtailment amount 2 No commas(,) or dollar 11
to be applied. signs ($)
------------------------------------------------------------------------------------------------------
SERV_CURT_DATE_1 The curtailment date MM/DD/YYYY 10
associated with the first
curtailment amount.
------------------------------------------------------------------------------------------------------
CURT_ADJ_ AMT_1 The curtailment interest on 2 No commas(,) or dollar 11
the first curtailment signs ($)
amount, if applicable.
------------------------------------------------------------------------------------------------------
SERV_CURT_AMT_2 The second curtailment 2 No commas(,) or dollar 11
amount to be applied. signs ($)
------------------------------------------------------------------------------------------------------
SERV_CURT_DATE_2 The curtailment date MM/DD/YYYY 10
associated with the second
curtailment amount.
------------------------------------------------------------------------------------------------------
CURT_ADJ_ AMT_2 The curtailment interest on 2 No commas(,) or dollar 11
the second curtailment signs ($)
amount, if applicable.
------------------------------------------------------------------------------------------------------
SERV_CURT_AMT_3 The third curtailment amount 2 No commas(,) or dollar 11
to be applied. signs ($)
------------------------------------------------------------------------------------------------------
SERV_CURT_DATE_3 The curtailment date MM/DD/YYYY 10
associated with the third
curtailment amount.
------------------------------------------------------------------------------------------------------
CURT_ADJ_AMT_3 The curtailment interest on 2 No commas(,) or dollar 11
the third curtailment signs ($)
amount, if applicable.
------------------------------------------------------------------------------------------------------
PIF_AMT The loan "paid in full" 2 No commas(,) or dollar 11
amount as reported by the signs ($)
Servicer.
------------------------------------------------------------------------------------------------------
PIF_DATE The paid in full date as MM/DD/YYYY 10
reported by the Servicer.
------------------------------------------------------------------------------------------------------
Action Code Key: 2
15=Bankruptcy,
30=Foreclosure, , 60=PIF,
63=Substitution,
65=Repurchase,70=REO
------------------------------------------------------------------------------------------------------
ACTION_CODE The standard FNMA numeric
code used to indicate the
default/delinquent status of
a particular loan.
------------------------------------------------------------------------------------------------------
INT_ADJ_AMT The amount of the interest 2 No commas(,) or dollar 11
adjustment as reported by signs ($)
the Servicer.
------------------------------------------------------------------------------------------------------
SOLDIER_SAILOR_ADJ_AMT The Soldier and Sailor 2 No commas(,) or dollar 11
Adjustment amount, if signs ($)
applicable.
------------------------------------------------------------------------------------------------------
NON_ADV_LOAN_AMT The Non Recoverable Loan 2 No commas(,) or dollar 11
Amount, if applicable. signs ($)
------------------------------------------------------------------------------------------------------
LOAN_LOSS_AMT The amount the Servicer is 2 No commas(,) or dollar 11
passing as a loss, if signs ($)
applicable.
------------------------------------------------------------------------------------------------------
SCHED_BEG_PRIN_BAL The scheduled outstanding 2 No commas(,) or dollar 11
principal amount due at the signs ($)
beginning of the cycle date
to be passed through to
investors.
------------------------------------------------------------------------------------------------------
SCHED_END_PRIN_BAL The scheduled principal 2 No commas(,) or dollar 11
balance due to investors at signs ($)
the end of a processing
cycle.
------------------------------------------------------------------------------------------------------
SCHED_PRIN_AMT The scheduled principal 2 No commas(,) or dollar 11
amount as reported by the signs ($)
Servicer for the current
cycle -- only applicable for
Scheduled/Scheduled Loans.
------------------------------------------------------------------------------------------------------
SCHED_NET_INT The scheduled gross interest 2 No commas(,) or dollar 11
amount less the service fee signs ($)
amount for the current cycle
as reported by the Servicer
-- only applicable for
Scheduled/Scheduled Loans.
------------------------------------------------------------------------------------------------------
ACTL_PRIN_AMT The actual principal amount 2 No commas(,) or dollar 11
collected by the Servicer signs ($)
for the current reporting
cycle -- only applicable for
Actual/Actual Loans.
------------------------------------------------------------------------------------------------------
ACTL_NET_INT The actual gross interest 2 No commas(,) or dollar 11
amount less the service fee signs ($)
amount for the current
reporting cycle as reported
by the Servicer -- only
applicable for Actual/Actual
Loans.
------------------------------------------------------------------------------------------------------
PREPAY_PENALTY_ AMT The penalty amount received 2 No commas(,) or dollar 11
when a borrower prepays on signs ($)
his loan as reported by the
Servicer.
------------------------------------------------------------------------------------------------------
PREPAY_PENALTY_ WAIVED The prepayment penalty 2 No commas(,) or dollar 11
amount for the loan waived signs ($)
by the servicer.
------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------
MOD_DATE The Effective Payment Date MM/DD/YYYY 10
of the Modification for the
loan.
------------------------------------------------------------------------------------------------------
MOD_TYPE The Modification Type. Varchar - value can be 30
alpha or numeric
------------------------------------------------------------------------------------------------------
DELINQ_P&I_ADVANCE_AMT The current outstanding 2 No commas(,) or dollar 11
principal and interest signs ($)
advances made by Servicer.
------------------------------------------------------------------------------------------------------
SCHEDULE 6
DATA REQUIREMENTS OF SERVICING ADVANCES INCURRED PRIOR TO CUT-OFF DATE
----------------------------------------------------------------------------------------------------------
[LOAN NUMBER] [PRE-CUT-OFF DATE ADVANCE AMOUNT]
----------------------------------------------------------------------------------------------------------
[PROVIDED UPON REQUEST]
