Exhibit 4.2.1
ACE SECURITIES CORP.
Depositor
[
]
Servicer
[
]
Master Servicer
and Securities Administrator
[
]
Trustee
FORM
OF
POOLING AND
SERVICING AGREEMENT
Dated as of [
], 200[
]
ACE Securities
Corp. [
]
Asset Backed Pass-Through Certificates
TABLE OF
CONTENTS
ARTICLE I
DEFINITIONS
4
SECTION
1.01.
Defined
Terms.
4
SECTION
1.02.
Allocation of
Certain Interest Shortfalls.
51
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE
OF
CERTIFICATES
54
SECTION
2.01.
Conveyance of
the Mortgage Loans.
54
SECTION
2.02.
Acceptance of
REMIC I by Trustee.
55
SECTION
2.03.
Repurchase or
Substitution of Mortgage Loans.
55
SECTION
2.04.
Representations
and Warranties of the Master Servicer.
58
SECTION
2.05.
Representations,
Warranties and Covenants of the Servicer.
60
SECTION
2.06.
Issuance of the
REMIC I Regular Interests and the Class
[____]
Interest.
62
SECTION
2.07.
Conveyance of
the REMIC I [____________]; Acceptance of
REMIC
II and REMIC III
by the Trustee.
62
SECTION
2.08.
Issuance of
Residual Certificates.
63
SECTION
2.09.
Establishment of
the Trust.
63
SECTION
2.10.
Purposes and
Powers of the Trust .
63
ARTICLE III
ADMINISTRATION AND SERVICING OF THE MORTGAGE
LOANS;
ACCOUNTS
65
SECTION
3.01.
The Servicer to
Act as Servicer.
65
SECTION
3.02.
Sub-Servicing
Agreements Between the Servicer and
Sub-Servicers.
68
SECTION
3.03.
Successor
Sub-Servicers.
68
SECTION
3.04.
No Contractual
Relationship Between Sub-Servicer, Trustee or
the
Certificateholders.
69
SECTION
3.05.
Assumption or
Termination of Sub-Servicing Agreement by
Successor
Servicer.
69
SECTION
3.06.
Collection of
Certain Mortgage Loan Payments.
69
SECTION
3.07.
Collection of
Taxes, Assessments and Similar Items;
Servicing
Accounts.
70
SECTION
3.08.
Collection
Account and Distribution Account.
71
SECTION
3.09.
Withdrawals from
the Collection Account and Distribution
Account.
73
SECTION
3.10.
Investment of
Funds in the Investment Accounts.
75
SECTION
3.11.
Maintenance of
Hazard Insurance, Errors and Omissions and
Fidelity
Coverage and
Primary Mortgage Insurance.
77
SECTION
3.12.
Enforcement of
Due-on-Sale Clauses; Assumption Agreements
79
SECTION
3.13.
Realization Upon
Defaulted Mortgage Loans.
80
SECTION
3.14.
Trustee to
Cooperate; Release of Mortgage Files.
82
SECTION
3.15.
Servicing
Compensation.
83
SECTION
3.16.
Collection
Account Statements.
83
SECTION
3.17.
Annual Statement
as to Compliance.
84
SECTION
3.18.
Assessments of
Compliance and Attestation Reports.
84
SECTION
3.19.
[Reserved].
87
SECTION
3.20.
Access to
Certain Documentation.
87
SECTION
3.21.
Title,
Management and Disposition of REO
Property.
87
SECTION
3.22.
Obligations of
the Servicer in Respect of Prepayment
Interest
Shortfalls;
Relief Act Interest Shortfalls.
91
SECTION
3.23.
Obligations of
the Servicer in Respect of Mortgage Rates and
Monthly
Payments.
91
SECTION
3.24.
Reserve
Fund.
91
SECTION
3.25.
Advance
Facility.
93
SECTION
3.26.
The Servicer
Indemnification.
95
SECTION
3.27.
Intention of
the Parties and Interpretation .
95
ARTICLE IV
ADMINISTRATION AND MASTER SERVICING OF THE
MORTGAGE
LOANS BY THE
MASTER SERVICER
96
SECTION
4.01.
Master
Servicer.
96
SECTION
4.02.
REMIC-Related
Covenants.
97
SECTION
4.03.
Monitoring of
Servicer and Interim Servicer.
97
SECTION
4.04.
Fidelity
Bond.
99
SECTION
4.05.
Power to Act;
Procedures.
99
SECTION
4.06.
Due-on-Sale
Clauses; Assumption Agreements.
100
SECTION
4.07.
Documents,
Records and Funds in Possession of Master Servicer
To
Be Held for
Trustee.
100
SECTION
4.08.
Standard Hazard
Insurance and Flood Insurance Policies.
101
SECTION
4.09.
Presentment of
Claims and Collection of Proceeds.
101
SECTION
4.10.
Maintenance of
Primary Mortgage Insurance Policies.
101
SECTION
4.11.
Trustee to
Retain Possession of Certain Insurance Policies
and
Documents.
102
SECTION
4.12.
Realization Upon
Defaulted Mortgage Loans.
102
SECTION
4.13.
Compensation for
the Master Servicer.
102
SECTION
4.14.
REO
Property.
103
SECTION
4.15.
[Reserved].
103
SECTION
4.16.
[Reserved].
103
SECTION
4.17.
[Reserved.]
103
SECTION
4.18.
Obligation of
the Master Servicer in Respect of Prepayment
Interest
Shortfalls.
103
SECTION
4.19.
Prepayment
Penalty Verification.
104
ARTICLE V
PAYMENTS TO CERTIFICATEHOLDERS
105
SECTION
5.01.
Distributions.
105
SECTION
5.02.
Distribution
Date Statements to Certificateholders.
117
SECTION
5.03.
Servicer
Reports; P&I Advances.
120
SECTION
5.04.
Allocation of
Realized Losses.
122
SECTION
5.05.
Compliance with
Withholding Requirements.
124
SECTION
5.06.
Reports Filed
with Securities and Exchange Commission.
124
SECTION
5.07.
Supplemental
Interest Trust.
130
SECTION
5.08.
Tax Treatment of
Swap Payments and Swap Termination
Payments.
132
ARTICLE VI THE
CERTIFICATES
133
SECTION
6.01.
The
Certificates.
133
SECTION
6.02.
Registration of
Transfer and Exchange of Certificates.
135
SECTION
6.03.
Mutilated,
Destroyed, Lost or Stolen Certificates.
141
SECTION
6.04.
Persons Deemed
Owners.
141
SECTION
6.05.
Certain
Available Information.
142
ARTICLE VII THE
DEPOSITOR, THE SERVICER AND THE MASTER
SERVICER
143
SECTION
7.01.
Liability of the
Depositor, the Servicer and the Master
Servicer.
143
SECTION
7.02.
Merger or
Consolidation of the Depositor, the Servicer or the
Master
Servicer.
143
SECTION
7.03.
Limitation on
Liability of the Depositor, the Servicer, the
Master
Servicer and
Others.
143
SECTION
7.04.
Limitation on
Resignation of the Servicer.
144
SECTION
7.05.
Limitation on
Resignation of the Master Servicer.
146
SECTION
7.06.
Assignment of
Master Servicing.
146
SECTION
7.07.
Rights of the
Depositor in Respect of the Servicer and the
Master
Servicer.
147
SECTION
7.08.
Duties of the
Credit Risk Manager.
148
SECTION
7.09.
Limitation Upon
Liability of the Credit Risk Manager.
148
SECTION
7.10.
Removal of the
Credit Risk Manager.
148
ARTICLE VIII
DEFAULT
149
SECTION
8.01.
Servicer Events
of Default.
149
SECTION
8.02.
Master Servicer
to Act; Appointment of Successor.
153
SECTION
8.03.
Notification to
Certificateholders.
154
SECTION
8.04.
Waiver of Events
of Default.
155
ARTICLE IX
CONCERNING THE TRUSTEE AND THE SECURITIES
ADMINISTRATOR
156
SECTION
9.01.
Duties of
Trustee and Securities Administrator.
156
SECTION
9.02.
Certain Matters
Affecting Trustee and Securities
Administrator.
157
SECTION
9.03.
Trustee and
Securities Administrator not Liable for Certificates
or
Mortgage
Loans.
159
SECTION
9.04.
Trustee and
Securities Administrator May Own
Certificates.
160
SECTION
9.05.
Fees and
Expenses of Trustee and Securities
Administrator.
160
SECTION
9.06.
Eligibility
Requirements for Trustee and Securities
Administrator.
161
SECTION
9.07.
Resignation and
Removal of Trustee and Securities
Administrator.
161
SECTION
9.08.
Successor
Trustee or Securities Administrator.
162
SECTION
9.09.
Merger or
Consolidation of Trustee or Securities
Administrator.
163
SECTION
9.10.
Appointment of
Co-Trustee or Separate Trustee.
163
SECTION
9.11.
Appointment of
Office or Agency.
164
SECTION
9.12.
Representations
and Warranties.
164
ARTICLE X
TERMINATION
166
SECTION
10.01.
Termination Upon
Repurchase or Liquidation of All Mortgage
Loans.
166
SECTION
10.02.
Additional
Termination Requirements.
168
ARTICLE XI REMIC
PROVISIONS
170
SECTION
11.01.
REMIC
Administration.
170
SECTION
11.02.
Prohibited
Transactions and Activities.
173
SECTION
11.03.
Indemnification.
173
ARTICLE XII
MISCELLANEOUS PROVISIONS
175
SECTION
12.01.
Amendment.
175
SECTION
12.02.
Recordation of
Agreement; Counterparts.
176
SECTION
12.03.
Limitation on
Rights of Certificateholders.
176
SECTION
12.04.
Governing
Law.
177
SECTION
12.05.
Notices.
177
SECTION
12.06.
Severability of
Provisions.
178
SECTION
12.07.
Notice to Rating
Agencies.
178
SECTION
12.08.
Article and
Section References.
179
SECTION
12.09.
Grant of
Security Interest.
179
SECTION
12.10.
Survival of
Indemnification.
180
SECTION
12.11.
Interim
Servicing Agreement.
180
Exhibits
Exhibit
A-1
Form of Class
[____] Certificate
Exhibit
A-2
Form of Class
[____] Certificate
Exhibit
B-1
Form of
Transferor Representation Letter and Form of Transferee
Representation Letter in Connection with Transfer of the Class
[____] 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
[____] 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-1]
Form of Initial
Certification of Custodian]
[Exhibit
[C-2]
Form of Final
Certification of Custodian]
Exhibit
[D]
Form of Power of
Attorney
Exhibit
[E]
[Form of
Assessment of Compliance and Form of Custodian’s Assessment
of Compliance]
Exhibit
[F]
Form 10-D
Disclosure, Form 10-K Disclosure and Form 8-K
Disclosure
Exhibit
[G]
Additional
Disclosure Notification
Schedule
1
Mortgage Loan
Schedule
Schedule
2
[Prepayment
Charge Schedule]
Schedule
3
[Reserved.]
Schedule
4
[Stnadard File
Layout – Delinquency Reporting]
Schedule
5
[Standard File
Layout – Master Servicing]
This Pooling and
Servicing Agreement, is dated and effective as of [_____________],
200[__], among ACE SECURITIES CORP., as Depositor,
[_________________], as Servicer, [_________________], as Master
Servicer and Securities Administrator and [_________________], 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 [__] 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)
|
|
|
[____________]
|
|
[____________](2)
|
|
|
[____________]
|
|
[____________]
|
|
|
[____________]
|
|
[____________](2)
|
|
|
[____________]
|
|
[____________]
|
|
|
[____________]
|
|
[____________](2)
|
|
|
[____________]
|
|
[____________]
|
|
________________
|
(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 [__]
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)
|
|
[____________]
|
[____________](2)
|
[____________]
|
[____________]
|
|
[____________]
|
[____________](2)
|
[____________]
|
[____________]
|
|
[____________]
|
[____________](2)
|
[____________]
|
[____________]
|
___________________________
(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 [] WILL
NOT HAVE AN UNCERTIFICATED BALANCE, BUT WILL ACCRUE INTEREST ON ITS
UNCERTIFICATED NOTIONAL AMOUNT.]
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 [__]
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)
|
|
[____________]
|
[____________](2)
|
[____________]
|
[____________]
|
|
[____________]
|
[____________](2)
|
[____________]
|
[____________]
|
|
[____________]
|
[____________](2)
|
[____________]
|
[____________]
|
As of the
Cut-off Date, the [_________________] had an aggregate Scheduled
Principal Balance equal to approximately $[____________] and the
[_________________] had an aggregate Scheduled Principal Balance
equal to approximately $[____________].
_________________
(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 [] Certificates will not
accrue interest.]
(4)
[The Class [] 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 []). The
Class [] Certificates will not accrue interest on their Certificate
Principal Balance.]
(5)
[The Class [] 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 [].]
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 any
Servicer), or (y) as provided in Section 3.01 hereof, but in no
event below the standard set forth in clause
(x).
“Accountant’s
Attestation” : As
defined in Section 3.18(b)(i).
“
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 [__] Certificate, [______] 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
[__] Certificates, the [___] Certificates, or on the Notional
Amount in the case of the Class [__] Certificates, of such
Certificate immediately prior to such Distribution Date. The
Class [__] Certificates are not entitled to distributions in
respect of interest and, accordingly, will not accrue interest.
All distributions of interest on the Class [__] Certificates,
the [__________] Certificates and the Class [__] 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 [__] 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 [__] Certificate, [__________]
Certificate or Class [__] 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 3.21 or
Section 4.18 of this Agreement or pursuant to the Interim Servicing
Agreement and (b) the aggregate amount of any Relief Act Interest
Shortfall, if any, for such Distribution Date. In addition, Accrued
Certificate Interest with respect to each Distribution Date, as to
any Class [__] Certificate, shall be reduced by an amount equal to
the portion allocable to such Class [__] Certificate of Realized
Losses, if any, pursuant to Section 1.02 and Section 5.04
hereof.
“Additional Form 10-D
Disclosure” : As
defined in Section 5.06.
“Additional Form 10-K
Disclosure” : As
defined in Section 5.06.
“Additional Servicer”
: Each Affiliate of the Servicer
that services any of the Mortgage Loans and each person that is not
an Affiliate of the Servicer that services 10% or more of the
Mortgage Loans.
“
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
3.25(a).
“
Advance Financing Person ”: As defined in Section
3.25(a).
“
Advance Reimbursement Amounts ”: As defined in
Section 3.25(b).
“
Affiliate ”: With respect to any specified Person, any
other Person controlling or controlled by or under common control
with such specified Person. For the purposes of this definition,
“control” when used with respect to any specified
Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise, and the terms
“controlling” and “controlled” have
meanings correlative to the foregoing.
“
Aggregate Pool Principal Balance ”: As to any
Distribution Date, the aggregate of the scheduled principal
balances of the Mortgage Loans which were outstanding Mortgage
Loans on the Due Date in the month preceding the month of such
Distribution Date.
“
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 [____________] Certificates or Class [__] 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 Custodial
Account and 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(a).
“
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.
“Assessment of Compliance”
: As defined in Section
3.18(i)(a).
“
Available Distribution Amount ”: With respect to any
Distribution Date, an amount equal to (1) the sum of (a) the
aggregate of the amounts on deposit in the Custodial Account, the
Collection Account and the Distribution Account as of the close of
business on the related Servicer Remittance Date, (b) the aggregate
of any amounts deposited in the Distribution Account by the
Servicer or the Master Servicer in respect of Prepayment Interest
Shortfalls for such Distribution Date pursuant to Section 3.22 or
Section 4.18 of this Agreement or by the Interim Servicer pursuant
to the Interim Servicing 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 or by the Interim
Servicer pursuant to the Interim Servicing 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 or pursuant to the Interim
Servicing Agreement, reduced (to not less than [
]) 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 and Insurance Proceeds 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
or reimbursable or payable to the Interim Servicer under the
Interim Servicing Agreement, (v) the Credit Risk Management Fee,
(vi) amounts deposited in the Custodial Account, the Collection
Account or the Distribution Account in error, (vii) the amount of
any Prepayment Charges collected by the Servicer or the Interim
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 or pursuant to the Interim Servicing Agreement.
“
Balloon Mortgage Loan ”: A Mortgage Loan that
provides for the payment of the unamortized principal balance of
such Mortgage Loan in a single payment, that is substantially
greater than the preceding monthly payment at the maturity of such
Mortgage Loan.
“
Balloon Payment ”: A payment of the unamortized
principal balance of a Mortgage Loan in a single payment, that is
substantially greater than the preceding Monthly Payment at the
maturity of such Mortgage Loan.
“
Bankruptcy Code ”: The Bankruptcy Reform Act of 1978
(Title 11 of the United States Code), as
amended.
“
Book-Entry Certificates ”: The Offered Certificates
and Class [__] 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, Florida 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 [_____], Class [__] and
Class [__] 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
[__] 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 [__] 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 [__] Certificates) of such Class
of Certificates as of the Closing Date.
“
Certificate Margin ”: With respect to the Class [__]
Certificates and, for purposes of the definition of “Marker
Rate”, REMIC I Regular Interest [__],[__]% in the case of
each Distribution Date through and including the Optional
Termination Date and [ ]% 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 Seller, 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 Seller,
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 [__] Certificate, [_____] Certificate or Class [__]
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 [__] 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 [__]
Certificates, the [_________] Certificates and the Class [__]
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” : As specified in Section
5.06(b)(iv).
“Certification Parties”
: As defined in Section
5.06(b)(iv).
“Certifying Person”
: As defined in Section
5.06(b)(iv).
“
Class ”: Collectively, all of the Certificates bearing
the same class designation.
“
Class [__] Certificate ”: Any Class [__]
or Class [__] Certificate.
“
Class [__] Principal Distribution Amount ”: The
Class [__] Principal Distribution Amount is an amount equal to the
sum of: (i) the Class [__] Principal Distribution Amount and (ii)
the Class [__] Principal Distribution
Amount.
“
Class [__] 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 [__] Certificate ”: Any one of the
Class [__] Certificates executed and authenticated by the
Securities Administrator and delivered by the Trustee,
substantially in the form annexed hereto as Exhibit [__] and
evidencing a Regular Interest in REMIC III for purposes of the
REMIC Provisions.
“
Class [__] 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 [__] Certificates
immediately prior to such Distribution Date over (y) the lesser of
(A) the product of (i) [__]% 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) [__]% and (ii) the aggregate
principal balance of the Group I Mortgage Loans as of the Cut-off
Date.
“
Class [__] 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 [__] Certificate ”: Any one of the
Class [__] Certificates executed and authenticated by the
Securities Administrator and delivered by the Trustee,
substantially in the form annexed hereto as Exhibit [__] and
evidencing a Regular Interest in REMIC III for purposes of the
REMIC Provisions.
“
Class [__] 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 [__] and
Class [__] Certificates immediately prior to such Distribution Date
over (y) the lesser of (A) the product of (i) [__]% 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) [__]% and (ii) the
aggregate principal balance of the Group II Mortgage Loans as of
the Cut-off Date.
“
Class [__] Interest ”: The uncertificated
residual interest in REMIC [__].
“
Closing Date ”: [_____________],
200[__].
“
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 “[_________________]”. The Collection
Account must be an Eligible Account.
“
Commission ”: The Securities and Exchange
Commission.
“
Corporate Trust Office ”: The principal corporate
trust office of the Trustee or the Securities Administrator, as the
case may be, at which, at any particular time, its corporate trust
business in connection with this Agreement shall be administered,
which office at the date of the execution of this instrument is
located at (i) with respect to the Trustee, [_________________],
Attention: [_________________], 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, [_________________], Attention:
[_________________], and (B) for all other purposes,
[_________________], Attention: [_________________] (or for
overnight deliveries, at [_________________], Attention:
[_________________]), 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
|
|
[____________]
|
[__]
|
|
[____________]
|
[__]
|
|
[____________]
|
[__]
|
“
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 [____________] Certificates, the Class [__] Certificates and
the Class [__] 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, 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 ”: [__]% per
annum.
“
Credit Risk Manager ”: [____________], a
[____________] [____________], and its successors and
assigns.
“
Custodial Account ”: Shall mean the account maintained
by the Interim Servicer under the Interim Servicing
Agreement.
“
Custodial Agreement ”: Either (i) the [____________]
or (ii) the [____________], or any other custodial agreement
entered into after the date hereof with respect to any Mortgage
Loan subject to this Agreement.
“
Custodian ”: Either [____________] or [____________]
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,
[_____________], 200[__]. 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.
“ 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 [____________] ([__]) 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 [_________________], 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 [_________________]. 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 Moody’s (or, if such Rating Agencies are no longer
rating the Offered Certificates, comparable ratings by any other
nationally recognized statistical rating agency then rating the
Offered Certificates).
“
Depository Participant ”: A broker, dealer, bank or
other financial institution or other Person for whom from time to
time a Depository effects book-entry transfers and pledges of
securities deposited with the Depository.
“
Determination Date ”: With respect to each
Distribution Date and (i) the Servicer, the [15th] day of the
calendar month in which such Distribution Date occurs, or if such
[15th] day is not a Business Day, the Business Day immediately
preceding such [15th] day, and (ii) the Interim Servicer, as set
forth in the Interim Servicing Agreement. The Determination
Date for purposes of Article [__] 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 [Freddie 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
“[_________________]”. 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
[_____________], 200[__].
“Distribution Date Statement”
: The statement delivered to the
Certificateholders pursuant to Section
5.02.
“ 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 the Servicer and any
Distribution Date, the period commencing on the [second] day of the
month immediately preceding the month in which such Distribution
Date occurs and ending on the [first] day of the month in which
such Distribution Date occurs. With respect to any
Distribution Date and the Interim Servicer, the period as set forth
in the Interim Servicing Agreement.
“
Eligible Account ”: Any of (i) an account or accounts
maintained with a Depository Institution, (ii) an account or
accounts the deposits in which are fully insured by the FDIC or
(iii) a trust account or accounts maintained with a federal
depository institution or state chartered depository institution
acting in its fiduciary capacity. Eligible Accounts may bear
interest.
“
ERISA ”: The Employee Retirement Income Security Act
of 1974, as amended from time to time.
“
Estate in Real Property ”: A fee simple estate in a
parcel of land.
“
Excess Liquidation Proceeds ”: To the extent that such
amount is not required by law to be paid to the related mortgagor,
the amount, if any, by which Liquidation Proceeds with respect to a
liquidated Mortgage Loan exceed the sum of (i) the outstanding
principal balance of such Mortgage Loan and accrued but unpaid
interest at the related Net Mortgage Rate through the last day of
the month in which the related Liquidation Event occurs, plus (ii)
related liquidation expenses or other amounts to which the Servicer
or the Interim Servicer is entitled to be reimbursed from
Liquidation Proceeds with respect to such liquidated Mortgage Loan
pursuant to Section 3.09 of this Agreement or pursuant to the
Interim Servicing Agreement.
“
Exchange Act ”: The Securities Exchange Act of
1934, as amended.
“
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).
“ Extra
Principal Distribution Amount ”: With respect to any
Distribution Date, the lesser of (i) the Net Monthly Excess
Cashflow for such Distribution Date and (ii) the
Overcollateralization Increase Amount for such Distribution
Date.
“
Fannie Mae ”: Fannie Mae, formerly known as the
Federal National Mortgage Association, or any successor
thereto.
“
FDIC ”: Federal Deposit Insurance Corporation or any
successor thereto.
“Final
Certification” :
With respect to each Custodian, the certification required to
be delivered by the Custodian to the Depositor, the Trustee and the
Servicer in the form annexed hereto as Exhibit [C-2] pursuant to
Section 2.03 of this Agreement.
“ Final
Maturity Date ”: The Distribution Date occurring in
[_____________], 200[__].
“ 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 Seller 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 or the Interim
Servicer that all Insurance Proceeds, Liquidation Proceeds and
other payments or recoveries which the Servicer or the Interim
Servicer, in its reasonable good faith judgment, expects to be
finally recoverable in respect thereof have been so recovered,
which determination shall be evidenced by a certificate of a
Servicing Officer delivered to the Master Servicer and maintained
in its records.
“
Fitch ”: Fitch Ratings or any successor in
interest.
“Form
8-K Disclosure Information” : As defined in Section
5.06(c)(i).
“
Freddie Mac ”: Freddie Mac, formerly known as the
Federal Home Loan Mortgage Corporation, or any successor
thereto.
“ [____________] Assignment Agreement
”: The Assignment, Assumption and Recognition Agreement,
dated as of [_____________], 200[__], by and among the Seller, the
Depositor and the Interim Servicer evidencing the assignment of the
Interim Servicing Agreement to the
Depositor.
“[____________] Mortgage Loans ”:
The Mortgage Loans being serviced by the Interim Servicer as
of the Closing Date.
“ 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 or
the Servicer pursuant to this Agreement or the Custodial Agreements
or the Interim Servicer pursuant to the Interim Servicing
Agreement).
“ 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 or pursuant to the
Interim Servicing 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 Interim Servicer and (iv) the Class [__] Allocation
Percentage of the amount of any Overcollateralization Increase
Amount for such Distribution Date minus (v) the Class [__]
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 or
the Servicer pursuant to this Agreement or the Custodial Agreements
or payable or reimbursable to the Interim Servicer pursuant to the
Interim Servicing Agreement).
“ 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 or pursuant to the
Interim Servicing 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 Interim Servicer and (iv) the Class [__] Allocation
Percentage of the amount of any Overcollateralization Increase
Amount for such Distribution Date minus (v) the Class [__]
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 Seller, 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
Seller, any Originator or any Affiliate thereof, and (c) is not
connected with the Depositor, the Master Servicer, the Securities
Administrator, the Servicer, the Seller, any Originator or any
Affiliate thereof as an officer, employee, promoter, underwriter,
trustee, partner, director or Person performing similar functions;
provided, however, that a Person shall not fail to be Independent
of the Depositor, the Master Servicer, the Securities
Administrator, the Servicer, the Seller, 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 Seller, 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, [__]% 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.
“Initial Certification”
: With respect to each Custodian,
the certification required to be executed by the Custodian and
delivered to the Depositor and the Trustee in the form annexed
hereto as Exhibit [C-1] pursuant to Section 2.03 of this
Agreement.
“
Institutional Accredited Investor ”: As defined in
Section 6.01(c).
“
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 [__] Certificates, the
[____________] Certificates and the Class [__] 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 [__] 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 [__] Certificate, [____________]
Certificate or Class [__] 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 [__] Certificates, the [____________] Certificates, the Class
[__] Certificates, REMIC I Regular Interests and REMIC II Regular
Interests (other than REMIC I Regular Interest [__] and REMIC II
Regular Interest [__]) 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 [__] Certificates, any
[____________] Certificates, any Class [__] Certificates and any
Class [__] Certificates, the aggregate Accrued Certificate Interest
on the Certificates of such Class for such Distribution
Date.
“
Interim Servicer ”: [_________________], and any
successor thereto.
“
Interim Servicing Agreement ”: The Master
Mortgage Loan Purchase and Interim Servicing Agreement, dated as of
[_____________], 200[__], as amended by Amendment Number [__] dated
[_____________], 200[__] and Amendment Number [__] dated
[_____________], 200[__], between the Seller and the Interim
Servicer, as modified by the
[_________________].
“
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
[_____________], 200[__], as amended and supplemented from time to
time, between the Swap Provider and the
Trustee.
“ Last
Scheduled Distribution Date ”: The Distribution Date
occurring in [_____________], 200[__], 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 or the Interim Servicer in connection with
(i) the taking of all or a part of a Mortgaged Property by exercise
of the power of eminent domain or condemnation (other than amounts
required to be released to the Mortgagor or a senior lienholder),
(ii) the liquidation of a defaulted Mortgage Loan through a
trustee’s sale, foreclosure sale or otherwise, (iii) the
repurchase, substitution or sale of a Mortgage Loan or an REO
Property pursuant to or as contemplated by Section 2.03, Section
3.13(c), Section 3.21 or Section 10.01 of this Agreement 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 [__]
Certificates and any Distribution Date, a per annum rate equal to
[__] ([__]) times the weighted average of the REMIC II Remittance
Rate for each of REMIC II Regular Interest [__], REMIC II Regular
Interest [__], REMIC II Regular Interest [__], with the rate on
each such REMIC II Regular Interest (other than 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 and with the
rate on REMIC II Regular Interest [__] subject to a cap of [
] 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
[__].
“
Master Servicer ”: As of the Closing Date,
[_________________] 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 ”: [__]% per
annum.
“
Maximum [__] 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 [__] for such Distribution Date on a
balance equal to the Uncertificated Balance of REMIC II Regular
Interest [__] minus the REMIC II Overcollateralization Amount, in
each case for such Distribution Date, over (ii) Uncertificated
Interest on REMIC II Regular Interest [__] 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
[__].
“
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.]
“ [
] Certificate ”: Any Class [__]
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 or by the Interim
Servicer pursuant to the Interim Servicing Agreement; and (c) on
the assumption that all other amounts, if any, due under such
Mortgage Loan are paid when due.
“
Moody’s ”: Moody’s Investors
Service, Inc. or any successor in
interest.
“
Mortgage ”: The mortgage, deed of trust or other
instrument creating a first or second lien on, or first or second
priority security interest in, a Mortgaged Property securing a
Mortgage Note.
“
Mortgage File ”: The Mortgage Loan Documents
pertaining to a particular Mortgage
Loan.
“
Mortgage Loan ”: Each mortgage loan transferred and
assigned to the Trustee and the Mortgage Loan Documents for which
have been delivered to the applicable Custodian pursuant to Section
2.01 of this Agreement and pursuant to the related Custodial
Agreement, as held from time to time as a part of the Trust Fund,
the Mortgage Loans so held being identified in the Mortgage Loan
Schedule.
“
Mortgage Loan Documents ”: The documents
evidencing or relating to each Mortgage Loan delivered to the
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 [_____________],
200[__], between the Depositor and the
Seller.
“
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;
(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 or
Interim Servicer, if applicable;
(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
[__]% 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 [____] Certificates, (B) the aggregate Interest Distribution
Amounts payable to the holders of the [
] Certificates and the Class [____]
Certificates and (C) the Principal Remittance
Amount.
“ 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 [__]
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), after giving effect
to Principal Prepayments received during the related Prepayment
Period. For federal income tax purposes, the economic
equivalent of such rate shall be expressed as the weighted average
of (adjusted for the actual number of days elapsed in the related
Interest Accrual Period) the REMIC II Remittance Rate on REMIC II
Regular Interest [____], weighted on the basis of the
Uncertificated Balance of such REMIC II Regular Interest.
With respect to
the Class [__] 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), after
giving effect to Principal Prepayments received during the related
Prepayment Period. For federal income tax purposes, the
economic equivalent of such rate shall be expressed as the weighted
average of (adjusted for the actual number of days elapsed in the
related Interest Accrual Period) the REMIC II Remittance Rate on
REMIC II Regular Interest I[____], weighted on the basis of the
Uncertificated Balance of such REMIC II Regular
Interest.
“ Net WAC Rate Carryover Amount ”:
With respect to any Class [__] Certificate, [
] Certificate or Class [__] Certificate and
any Distribution Date on which the Pass-Through Rate is limited to
the applicable Net WAC Pass-Through Rate, an amount equal to the
sum of (i) the excess of (x) the amount of interest such Class
would have been entitled to receive on such Distribution Date if
the applicable Net WAC Pass-Through Rate would not have been
applicable to such Class on such Distribution Date over (y) the
amount of interest paid to such Class on such Distribution Date at
the applicable Net WAC Pass-Through Rate plus (ii) the related Net
WAC Rate Carryover Amount for the previous Distribution Date not
previously distributed to such Class together with interest thereon
at a rate equal to the Pass-Through Rate for such Class for the
most recently ended Interest Accrual Period without taking into
account the applicable Net WAC Pass-Through
Rate.
“ New
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, the Interim Servicer or a successor to the Servicer
or the Interim 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, the Interim Servicer or a successor to
the Servicer or the Interim 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 or in the Interim Servicing
Agreement.
“
Non-United States Person ”: Any Person other than a
United States Person.
“
Notional Amount ”: With respect to the Class [____]
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 [____] Certificates is equal
to $[____________].
[“ [
] ”: [
] Loan Servicing,
LLC or any successor thereto.]
“
Offered Certificates ”: The Class [__] Certificates
and the [ ] 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 [__]
Certificates, the [ ] Certificates, the
Class [__] Certificates, REMIC II Regular Interests (other than
REMIC II Regular Interest [__]) 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 [__] Certificates and, for purposes of the definition of
“Marker Rate”, REMIC II Regular Interest [__], a per
annum rate equal to One-Month LIBOR plus the related Certificate
Margin.
With respect to
the Class [__] Certificates and, for purposes of the definition of
“Marker Rate”, REMIC II Regular Interest [__], 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 is reduced to less than or equal to [__]% of the
aggregate principal balance of the Mortgage Loans as of the Cut-off
Date.
“
Originators ”: The Interim Servicer and various
other originators (each, an
“Originator”).
“
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 [__]
Certificates and the Class [__] 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 [__] Certificates and the Class [__] 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 [
].
“
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 3.25 of this Agreement
or in respect of any Distribution Date by a successor servicer
(including the Master Servicer) pursuant to Section 8.02 of this
Agreement, or the Interim Servicer pursuant to the Interim
Servicing Agreement (which advances shall not include principal or
interest shortfalls due to bankruptcy proceedings or application of
the Relief Act or similar state or local
laws.)
“
Pass-Through Rate ”: With respect to the Class [__]
Certificates and the Class [__] 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 [__] 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) and (ii) below, and the denominator of which is the
aggregate Uncertificated Balances of REMIC II Regular Interest
[__]. For purposes of calculating the Pass-Through Rate for the
Class [__] Certificates, the numerator is equal to the sum of the
following components:
(i) the REMIC II
Remittance Rate for REMIC II Regular Interest [__] minus the Marker
Rate, applied to an amount equal to the Uncertificated Balance of
REMIC II Regular Interest [__]; and
(ii)
[__]% of the interest on REMIC II Regular Interest
[__].
“PCAOB” : 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 [__] Certificates and the
Class [__] Certificates are issuable only in minimum Percentage
Interests corresponding to minimum initial Certificate Principal
Balances of $[_______] and integral multiples of $[__] 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 [__]% and integral multiples of [__]% 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, Fitch and
S&P and provided that each such investment has an original
maturity of no more than 365 days; and provided further that, if
the only Rating Agency is S&P and if the depository or trust
company is a principal subsidiary of a bank holding company and the
debt obligations of such subsidiary are not separately rated, the
applicable rating shall be that of the bank holding company; and,
provided further that, if the original maturity of such short-term
obligations of a domestic branch of a foreign depository
institution or trust company shall exceed [__] 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 [__] days with respect to any
security described in clause (i) above and entered into with a
depository institution or trust company (acting as principal) rated
[A-1+] or higher by S&P, [F-1] or higher by Fitch and [A2] or
higher by 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 [__]% of the cash transferred
by a party in exchange for such collateral and (C) be delivered to
such party or, if such party is supplying the collateral, an agent
for such party, in such a manner as to accomplish perfection of a
security interest in the collateral by possession of certificated
securities;
(iv)
securities
bearing interest or sold at a discount that are issued by any
corporation incorporated under the laws of the United States of
America or any state thereof and that are rated by each Rating
Agency that rates such securities in its highest long-term
unsecured rating categories at the time of such investment or
contractual commitment providing for such
investment;
(v)
commercial paper
(including both non-interest-bearing discount obligations and
interest-bearing obligations payable on demand or on a specified
date not more than 30 days after the date of acquisition thereof)
that is rated by each Rating Agency that rates such securities in
its highest short-term unsecured debt rating available at the time
of such investment;
(vi)
units of money
market funds that have been rated [“AAA”] by Fitch (if
rated by Fitch), [“AAA”] by S&P or
[“Aaa”] by 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 [__]
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
[__]% 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, Keogh 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 [__]% PPC, which represents (i) a
per annum prepayment rate of [__]% 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 [__]% per annum in each month thereafter through the
[__] month, (iii) building to a constant prepayment rate of [__]%
per annum beginning in the [__] month and remaining constant until
the [__] month, (iv) increasing to and remaining constant at a
prepayment rate of [__]% per annum beginning in the [____________]
month until the [____________] month and (v) decreasing and
remaining constant at a prepayment rate of [ ]% per
annum from the [__] month and thereafter; provided, however, the
prepayment rate will not exceed [__]% per annum in any period for
any percentage of PPC; and (b) the fixed-rate Mortgage Loans of
[__]% PPC, which represents (i) a per annum prepayment rate of
[__]% of the then outstanding principal balance of the fixed rate
Mortgage Loans in the [__] month of the life of such Mortgage
Loans, (ii) an additional [__]% per annum in each month thereafter
through the [__] month and (iii) a constant prepayment rate of
[__]% per annum beginning in the [__] month and in each month
thereafter during the life of the fixed rate Mortgage Loans.
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 or the Interim 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 3.21 and Section 4.18, respectively of this
Agreement. The obligations of the Interim Servicer in respect
of any Prepayment Interest Shortfalls are set forth in the Interim
Servicing Agreement.
“
Prepayment Period ”: (i) With respect to the
Servicer and any Distribution Date, the calendar month preceding
the month in which the related Distribution Date occurs with
respect to prepayments in part, and the period beginning on the
[____________] (1[__]) 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
[____________] ([__]) day of the month in which such Distribution
Date occurs with respect to prepayments in full and (ii) with
respect to the Interim Servicer, as set forth in the Interim
Servicing Agreement.
“
Principal Prepayment ”: Any voluntary payment of
principal made by the Mortgagor on a Mortgage Loan which is
received in advance of its scheduled Due Date and which is not
accompanied by an amount of interest representing the full amount
of scheduled interest due on any Due Date in any month or months
subsequent to the month of
prepayment.
“
Principal Distribution Amount ”: With respect to
any Distribution Date is the sum of the Group 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) [__]% 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 or the Interim
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 or the Interim Servicer through the end of the calendar
month immediately preceding the calendar month in which such REO
Property was acquired, plus (2) REO Imputed Interest for such REO
Property for each calendar month commencing with the calendar month
in which such REO Property was acquired and ending with the
calendar month in which such purchase is to be effected, net of the
total of all net rental income, Insurance Proceeds, Liquidation
Proceeds and P&I Advances that as of the date of purchase had
been distributed as or to cover REO Imputed Interest pursuant to
Section 5.01, (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 Interim
Servicer, 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.
“
QIB ”: As defined in Section
6.01(c).
“
Qualified Substitute Mortgage Loan ”: A mortgage loan
substituted for a Deleted Mortgage Loan pursuant to the terms of
this Agreement which must, on the date of such substitution, (i)
have an outstanding principal balance, after application of all
scheduled payments of principal and interest due during or prior to
the month of substitution, not in excess of the Scheduled Principal
Balance of the Deleted Mortgage Loan as of the Due Date in the
calendar month during which the substitution occurs, (ii) have a
Mortgage Rate not less than (and not more than [__] 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
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 ”: Fitch,
Moody’s and S&P or their successors. If such agencies or
their successors are no longer in existence, “Rating
Agencies” shall be such nationally recognized statistical
rating agencies, or other comparable Persons, designated by the
Depositor, notice of which designation shall be given to the
Trustee and the Servicer.
“
Realized Loss ”: With respect to each Mortgage Loan as
to which a Final Recovery Determination has been made, an amount
(not less than [
]), as reported by
the Servicer to the Master Servicer (in substantially the form of
Schedule 4 hereto) or by the Interim Servicer to the Master
Servicer pursuant to the Interim Servicing Agreement equal to (i)
the unpaid principal balance of such Mortgage Loan as of the
commencement of the calendar month in which the Final Recovery
Determination was made, plus (ii) accrued interest from the Due
Date as to which interest was last paid by the Mortgagor through
the end of the calendar month in which such Final Recovery
Determination was made, calculated in the case of each calendar
month during such period (A) at an annual rate equal to the annual
rate at which interest was then accruing on such Mortgage Loan and
(B) on a principal amount equal to the Stated Principal Balance of
such Mortgage Loan as of the close of business on the Distribution
Date during such calendar month, plus (iii) any amounts previously
withdrawn from the Collection Account or Custodial Account in
respect of such Mortgage Loan pursuant to Section 3.09(a)(ix) and
Section 3.13(b) of this Agreement or pursuant to the Interim
Servicing 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 or the Interim Servicer with
respect to such Mortgage Loan pursuant to Section 3.09(a)(iii) of
this Agreement or pursuant to the Interim Servicing
Agreement.
With respect to
any REO Property as to which a Final Recovery Determination has
been made, an amount (not less than [
]) 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 or Custodial Account in respect of the related Mortgage
Loan pursuant to Section 3.09(a)(ix) and Section 3.13(b) of this
Agreement or pursuant to the Interim Servicing 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 or
the Interim Servicer in respect of such REO Property or the related
Mortgage Loan for which the Servicer or the Interim Servicer has
been or, in connection with such Final Recovery Determination, will
be reimbursed pursuant to Section 3.21 of this Agreement or
pursuant to the Interim Servicing Agreement out of rental income,
Insurance Proceeds and Liquidation Proceeds received in respect of
such REO Property, minus (vi) the total of all net rental income,
Insurance Proceeds and Liquidation Proceeds received in respect of
such REO Property that has been, or in connection with such Final
Recovery Determination, will be transferred to the Distribution
Account pursuant to Section 3.21 of this Agreement or pursuant to
the Interim Servicing Agreement.
With respect to
each Mortgage Loan which has become the subject of a Deficient
Valuation, the difference between the principal balance of the
Mortgage Loan outstanding immediately prior to such Deficient
Valuation and the principal balance of the Mortgage Loan as reduced
by the Deficient Valuation.
With respect to
each Mortgage Loan which has become the subject of a Debt Service
Reduction, the portion, if any, of the reduction in each affected
Monthly Payment attributable to a reduction in the Mortgage Rate
imposed by a court of competent jurisdiction. Each such Realized
Loss shall be deemed to have been incurred on the Due Date for each
affected Monthly Payment.
To the extent
the Servicer or the Interim Servicer receives Subsequent
Recoveries, with respect to any Mortgage Loan, the amount of
Realized Loss with respect to that Mortgage Loan will be reduced to
the extent such recoveries are applied to reduce the Certificate
Principal Balance of any Class of Certificates on any Distribution
Date.
“
Record Date ”: With respect to each Distribution Date
and the Class [__] Certificates, the [ ]
Certificates and the Class [__] 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 ”: [_________________],
[_________________] and [_________________] 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 [__] Certificate, [
] Certificate, Class [__] Certificate,
Class [__] Certificate or Class [__]
Certificate.
“
Regular Interest ”: A “regular interest”
in a REMIC within the meaning of Section 860G(a)(1) of the
Code.
“
Regulation S Permanent Global Certificate ”: As
defined in Section 6.01(c).
“
Regulation S Temporary Global Certificate ”: As
defined in Section 6.01(c).
“
Release Date ”: The [__] day after the later of
(i) commencement of the offering of the Class [__] Certificates and
(ii) the Closing Date.
“Regulation AB” : 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”
: The Servicing Criteria applicable
to each party, as set forth on Exhibit [K] attached hereto.
Multiple parties can have responsibility for the same
Relevant Servicing Criteria. With respect to a Servicing
Function Participant engaged by any of the Master Servicer, the
Securities Administrator or each Servicer, the term Relevant
Servicing Criteria may refer to a portion of the Relevant Servicing
Criteria applicable to such
parties.
“
Relief Act ”: The Servicemembers Civil Relief Act, as
amended, or similar state or local
laws.
“
Relief Act Interest Shortfall ”: With respect to any
Distribution Date and any Mortgage Loan, any reduction in the
amount of interest collectible on such Mortgage Loan for the most
recently ended Due Period as a result of the application of the
Relief Act.
“
REMIC ”: A “real estate mortgage investment
conduit” within the meaning of Section 860D of the
Code.
“ REMIC
I ”: The segregated pool of assets subject hereto,
constituting the primary trust created hereby and to be
administered hereunder, with respect to which a REMIC election is
to be made, consisting of: (i) such Mortgage Loans and Prepayment
Charges as from time to time are subject to this Agreement,
together with the Mortgage Files relating thereto, and together
with all collections thereon and proceeds thereof; (ii) any REO
Property, together with all collections thereon and proceeds
thereof; (iii) the Trustee’s rights with respect to the
Mortgage Loans under all insurance policies required to be
maintained pursuant to this Agreement and any proceeds thereof;
(iv) the Depositor’s rights under the Mortgage Loan Purchase
Agreement (including any security interest created thereby), the [
]Assignment Agreement and the Interim
Servicing Agreement and (v) the Custodial Account, 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
[__] and REMIC I Regular Interest [__] through REMIC I Regular
Interest [__] in the Preliminary Statement
hereto.
“ REMIC
I Group II Regular Interests ”: REMIC I Regular
Interest [__] and REMIC I Regular Interest [__] through REMIC II
Regular Interest [__] as designated in the Preliminary Statement
hereto.
“ REMIC
I Regular Interest ”: Any of the [__] separate
non-certificated beneficial ownership interests in REMIC I issued
hereunder and designated as a “regular interest” in
REMIC I. Each REMIC I Regular Interest shall accrue interest at the
related REMIC I Remittance Rate in effect from time to time, and
shall be entitled to distributions of principal, subject to the
terms and conditions hereof, in an aggregate amount equal to its
initial Uncertificated Balance as set forth in the Preliminary
Statement hereto.
“ REMIC I Remittance
Rate ”: With respect to REMIC I Regular Interest [__], a
per annum rate equal to the weighted average of the Net Mortgage
Rates of the Group I Mortgage Loans. With respect to each REMIC I
Group I Regular Interest ending with the designation
“[____]”, 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 [__]%. With respect
to each REMIC I Group I Regular Interest ending with the
designation “[____]”, 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) [__]% and (y) [__]%. With respect to REMIC I
Regular Interest [__], a per annum rate equal to the weighted
average of the Net Mortgage Rates of the Group II Mortgage Loans
With respect to each REMIC I Group II Regular Interest ending with
the designation “[____]”, a 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 [__]%. With respect to each REMIC I Group II Regular
Interest ending with the designation “[____]”, 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) [__]% and (y) [__]%.
With respect to REMIC I Regular Interest P,
[__]%.
“ 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) [__]%
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 [____] minus the Marker Rate,
divided by (b) 12.
“ REMIC
II Marker Allocation Percentage ”: [__]% of any amount
payable or loss attributable from the Mortgage Loans, which shall
be allocated to REMIC II Regular Interest [____] and REMIC II
Regular Interest [____].
“ REMIC
II Overcollateralization Amount ”: With respect to any
date of determination, (i) [___]% of the aggregate Uncertificated
Balances of the REMIC II Regular Interests minus (ii) the aggregate
of the Uncertificated Balances of REMIC II Regular Interest [____],
REMIC II Regular Interest [____], 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)
[___]% of the aggregate Stated Principal Balance of the Mortgage
Loans and REO Properties then outstanding and (ii) [__] minus
a fraction, the numerator of which is [__] times the aggregate of
the Uncertificated Balances of REMIC II Regular Interest [____] and
REMIC II Regular Interest [____].
“ 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 [____] ”: 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 [____] 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 [____] ”: 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 [____] 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 [____], REMIC II Regular Interest [____] and REMIC
II Regular Interest [____], a per annum rate (but not less than [
]) equal to the
weighted average of: (w) with respect to REMIC I Regular Interest
[___] and REMIC I Regular Interest [___], the REMIC I Remittance
Rate for each such REMIC I Regular Interest for each such
Distribution Date, (x) with respect to each REMIC I Regular
Interest ending with the designation “[____]”, 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 “[____]”, 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:
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[__________]
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[________________________]
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[________________________]
|
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[__________]
|
[________________________]
|
[________________________]
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|
[__________]
|
[________________________]
|
[________________________]
|
With respect to
REMIC II Regular Interest [____], a per annum rate (but not less
than [ ]) equal to
the weighted average of: (w) with respect to REMIC I Regular
Interest [___], the REMIC I Remittance Rate for such REMIC 1
Regular Interest for each such Distribution Date, (x) with respect
to REMIC I Group I Regular Interests ending with the designation
“[____]”, 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 “[____]”, 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:
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[__________]
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[________________________]
|
[________________________]
|
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[__________]
|
[________________________]
|
[________________________]
|
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[__________]
|
[________________________]
|
[________________________]
|
With respect to
REMIC II Regular Interest [____], a per annum rate (but not less
than [ ]) equal to
the weighted average of: (w) with respect to REMIC I Regular
Interest [__], the REMIC I Remittance Rate for such REMIC 1 Regular
Interest for each such Distribution Date, (x) with respect to
REMIC I Group II Regular Interests ending with the designation
“[____]”, 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 “[____]”, 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:
|
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[__________]
|
[________________________]
|
[________________________]
|
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[__________]
|
[________________________]
|
[________________________]
|
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[__________]
|
[________________________]
|
[________________________]
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With respect to
REMIC II Regular Interest [____], and (i) the first Distribution
Date through the [ ] Distribution Date, the excess of
(x) the weighted average of the REMIC I Remittance Rates for REMIC
I Regular Interests including the designation “[____]”,
over (y) [2] multiplied by Swap LIBOR. and (ii) thereafter, [___]%.
With respect to REMIC II Regular Interest [___],
[___]%.
“ REMIC
II Sub WAC Allocation Percentage ”: [___]% of any amount
payable or loss attributable from the Mortgage Loans, which shall
be allocated to REMIC II Regular Interest [____], REMIC II Regular
Interest [____], REMIC II Regular Interest [____], REMIC II Regular
Interest [____] and REMIC II Regular Interest
[____].
“ 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 [____]
Certificates.
“ REMIC
II Required Overcollateralization Amount ”: [___]% 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
[____] 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 or the Interim Servicer
pursuant to the Interim Servicing
Agreement.
“ Rents
from Real Property ”: With respect to any REO Property,
gross income of the character described in Section 856(d) of the
Code as being included in the term “rents from real
property.”
“ REO
Account ”: The account or accounts maintained, or caused
to be maintained, by the Servicer in respect of an REO Property
pursuant to Section 3.21 of this Agreement or by the Interim
Servicer pursuant to the Interim Servicing
Agreement.
“ REO
Disposition ”: The sale or other disposition of an REO
Property on behalf of REMIC I.
“ REO
Imputed Interest ”: As to any REO Property, for any
calendar month during which such REO Property was at any time part
of REMIC I, [__] 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 3.21(d)
of this Agreement or the Interim Servicer pursuant to the Interim
Servicing Agreement for unpaid Servicing Fees in respect of the
related Mortgage Loan and unreimbursed Servicing Advances and
P&I Advances in respect of such REO Property or the related
Mortgage Loan, over (b) the REO Imputed Interest in respect of such
REO Property for such calendar
month.
“ REO
Property ”: A Mortgaged Property acquired by the Servicer
or its nominee on behalf of REMIC I through foreclosure or
deed-in-lieu of foreclosure, as described in Section 3.21 of this
Agreement or the Interim Servicer pursuant to the related Interim
Servicing Agreement.
“Reportable Event”
: As defined in Section
5.06(c)(i).
“
Required Overcollateralization Amount ”: With
respect to any Distribution Date (i) prior to the Stepdown Date,
the product of (A) [___]% 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) [___]% 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) [___]% 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 [____] Certificates, [____________] Certificates and Class
[____] Certificates to [___], the Required Overcollateralization
Amount shall be [__].
“
Reserve Fund ”: A fund created pursuant to Section
3.24 which shall be an asset of the Trust Fund but which shall not
be an asset of any Trust REMIC.
“
Reserve Interest Rate ”: With respect to any Interest
Determination Date, the rate per annum that the Securities
Administrator determines to be either (i) the arithmetic mean
(rounded upwards if necessary to the nearest whole multiple of
[___]%) 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 Fannie Mae 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
[____] Certificates.
“
Residual Interest ”: The sole class of “residual
interests” in a REMIC within the meaning of Section
860G(a)(2) of the Code.
“
Responsible Officer ”: When used with respect to the
Trustee, any officer of the Trustee having direct responsibility
for the administration of this Agreement and, with respect to a
particular matter, to whom such matter is referred because of such
officer’s knowledge of and familiarity with the particular
subject.
“ Rule
144A ”: As defined in Section
6.01(c).
“
S&P ”: Standard & Poor’s, a division of
the McGraw-Hill Companies, Inc.
“Sarbanes-Oxley Act”
: The Sarbanes-Oxley Act of 2002
and the rules and regulations of the Commission promulgated
thereunder (including any interpretations thereof by the
Commission’s staff).
“Sarbanes-Oxley Certification”
: As defined in Section
5.06(b)(iv).
“
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, [
]. 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 [
]) 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, [
].
“
Securities Act ”: The Securities Act of 1933, as
amended.
“
Securities Administrator ”: As of the Closing
Date, [ ] 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.
“
Seller ”: [_________________] or its successor in
interest, in its capacity as seller under the Mortgage Loan
Purchase Agreement.
“
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 [____] Certificates and (ii) the Interest Carry Forward
Amount, if any, for such Distribution Date for the Class [____]
Certificates.
“Servicing Function
Participant” : Any
Subservicer, Subcontractor or any other Person, other than the
Servicer, the Master Servicer and the Securities Administrator,
that is participating in the servicing function within the meaning
of Regulation AB, unless such Person’s activities relate only
to 5% or less of the Mortgage Loans (calculated by Aggregate Pool
Principal Balance).
“
Servicer ”: [_________________], 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. New York time on the [___] day of
the month in which such Distribution Date occurs; provided that if
such [___] day of a given month is not a Business Day, the Servicer
Remittance Date for such month shall be the Business Day
immediately preceding such [___]
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 or the
Interim Servicer pursuant to Section 5.03(a) of this Agreement or
pursuant to the Interim Servicing Agreement, as applicable, with
such additions, deletions and modifications as agreed to by the
Master Servicer, the Securities Administrator and the Servicer or
the Interim Servicer.
“
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 or the Interim Servicer with respect to any
Mortgage Loans that were transferred to the Servicer or the Interim
Servicer prior to the Cut-off Date and/or (b) the Depositor with
respect to any Mortgage Loans that were transferred to the Servicer
or the Interim Servicer after the Cut-off Date, as applicable) by
the Servicer or the Interim Servicer in connection with a default,
delinquency or other unanticipated event by the Servicer or the
Interim Servicer in the performance of its servicing obligations,
including, but not limited to, the cost of (i) the preservation,
restoration and protection of a Mortgaged Property, (ii) any
enforcement or judicial proceedings, including but not limited to
foreclosures, in respect of a particular Mortgage Loan, including
any expenses incurred in relation to any such proceedings that
result from the Mortgage Loan being registered on the [MERS®
System], (iii) the management (including reasonable fees in
connection therewith) and liquidation of any REO Property, (iv) the
performance of its obligations under Section 3.01,
Section 3.07, Section 3.11, Section 3.13 and
Section 3.21 of this Agreement and (v) obtaining any legal
documentation required to be included in the Mortgage File and/or
correcting any outstanding title issues (i.e., any lien or
encumbrance on the Mortgaged Property that prevents the effective
enforcement of the intended lien position) reasonably necessary for
the Servicer or the Interim Servicer to perform its obligations
under this Agreement or the related Interim Servicing Agreement.
Servicing Advances also include any reasonable
“out-of-pocket” cost and expenses (including legal
fees) incurred by the Servicer or the Interim Servicer in
connection with executing and recording instruments of
satisfaction, deeds of reconveyance or Assignments to the extent
not recovered from the Mortgagor or otherwise payable under this
Agreement or the Interim Servicing Agreement. Neither the
Servicer nor the Interim Servicer shall be required to make any
Nonrecoverable Servicing Advances.
“
Servicing Advance Schedule ”: With respect to
any Servicing Advances incurred prior to the Cut-off Date, the
schedule or schedules provided by (a) the Servicer or the Interim
Servicer with respect to any Mortgage Loans that were transferred
to the Servicer or the Interim Servicer prior to the Cut-off Date
and/or (b) the Depositor with respect to any Mortgage Loans that
were transferred to the Servicer or the Interim 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
earlier of the date on which the Servicer or the Interim Servicer
seeks reimbursement for a Servicing Advance made by the Servicer or
the Interim Servicer or [___] ([__]) Business Days following the
Servicing Transfer Date, which schedule or schedules shall contain
the information set forth on Schedule
6.
“
Servicing Fee ”: With respect to each Mortgage Loan
and for any calendar month, an amount equal to [____________] 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 ”: [__]% per
annum.
“
Servicing Officer ”: Any officer of the Servicer, the
Interim 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, the Interim Servicer or the Master
Servicer, to the Trustee, the Master Servicer (in the case of the
Servicer or the Interim Servicer), the Securities Administrator and
the Depositor on the Closing Date, as such list may from time to
time be amended.
“
Servicing Transfer Date ”: With respect to the
[_________________], [_____________],
200[__].
“
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 $[___]. With respect to the Residual
Certificates, a hypothetical Certificate of such Class evidencing a
[__]% Percentage Interest in such
Class.
“
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 the
Interim Servicer or a successor to the Servicer or the Interim
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
or the Interim Servicer as recoveries of principal in accordance
with the provisions of Section 3.13 of this Agreement or pursuant
to the Interim Servicing Agreement, to the extent distributed
pursuant to Section 5.01 of this Agreement on or before such date
of determination, and (iv) any Realized Loss incurred with respect
thereto as a result of a Deficient Valuation made during or prior
to the Prepayment Period for the most recent Distribution Date
coinciding with or preceding such date of determination; and (b) as
of any date of determination coinciding with or subsequent to the
Distribution Date on which the proceeds, if any, of a Liquidation
Event with respect to such Mortgage Loan would be distributed, [
]. 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 [___]) 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, the Interim
Servicer or a successor to the Servicer or the Interim 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,
[___].
“
Stepdown Date ”: The earlier to occur of (i) the later
to occur of (a) the Distribution Date occurring in [_____________],
200[__] 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 [___]% and (ii) the first
Distribution Date on which the aggregate Certificate Principal
Balance of the Class [____] Certificates has been reduced to
[___].
“Subcontractor” : Any outsourcer that performs one or more
discrete functions identified in Item 1122(d) of Regulation AB with
respect to more than 5% but less than 10% of the Mortgage Loans
under the direction or authority of the Master Servicer, the
Custodian, the Securities Administrator or the Servicer (measured
by Aggregate Pool Principal Balance of the Mortgage Loans, annually
at the commencement of the calendar year prior to the year in which
an Assessment of Compliance is required to be delivered, multiplied
by a fraction, the numerator of which is the number of months
during which such Subcontractor performs such discrete functions
and the denominator of which is 12, or, in the case of the year in
which the Closing Date occurs, the number of months elapsed in such
calendar year).
“
Subordinate Certificates ”: Collectively, the
[____________] Certificates, the Class [____] Certificates and the
Class [____] Certificates.
“
Subsequent Recoveries ”: As of any Distribution Date,
amounts received during the related Prepayment Period by the
Servicer or the Interim 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” : Any Person that (a) services Mortgage Loans
on behalf of the Servicer pursuant to a Sub-Servicing Agreement and
is responsible for the performance of the material servicing
functions required to be performed by the Servicer under the
Servicing Agreement that are identified in Item 1122(d) of
Regulation AB with respect to 10% or more of the Mortgage Loans
under the direction or authority of the Servicer (measured by
Aggregate Pool Principal Balance of the Mortgage Loans, annually at
the commencement of the calendar year prior to the year in which an
Assessment of Compliance is required to be delivered, multiplied by
a fraction, the numerator of which is the number of months during
which such Subservicer services the related Mortgage Loans and the
denominator of which is 12, or, in the case of the year in which
the Closing Date occurs, the number of months elapsed in such
calendar year).
“
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 [____] Interest and the
right to receive payments in respect of the Class [____]
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 [_____________], 200[__], between [_________________], 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.
The Trustee will provide a copy of the Swap Agreement to any
Certificateholder upon request.
“ Swap
LIBOR ”: LIBOR as determined pursuant to the Swap
Agreement.
“ Swap
Notional Amount ”: For each calculation period as defined
in the Swap Agreement, the amount set forth
below:
|
From and
including:
|
To but
excluding:
|
Swap Notional
Amount:
|
|
[________________]
|
[___________________]
|
[_______________]
|
“ 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
[_________________].
“ 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 Jones 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 [___]% 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
|
|
[___]
|
[__]% plus [__] of [__]% for
each month thereafter
|
|
[___]
|
[__]% plus [__] of [__]% for
each month thereafter
|
|
[___]
|
[__]% plus [__] of [__]% for
each month thereafter
|
|
[___]
|
[__]% plus [__] of [__]% for
each month thereafter
|
|
[___] and
thereafter
|
[__]%
|
“
Trust ”: [_________________], 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 ”: [_________________], 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 [____] 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
[___].
“
Uncertificated Interest ”: With respect to any REMIC
Regular Interest for any Distribution Date, [__] month’s
interest at the related REMIC Remittance Rate applicable to such
REMIC Regular Interest for such Distribution Date, accrued on the
Uncertificated Balance thereof immediately prior to such
Distribution Date. Uncertificated Interest in respect of the REMIC
Regular Interests shall accrue on the basis of a 360-day year
consisting of twelve 30-day months. Uncertificated Interest with
respect to each Distribution Date, as to any REMIC Regular
Interest, shall be reduced by an amount equal to the sum of (a) the
aggregate Prepayment Interest Shortfall, if any, for such
Distribution Date to the extent not covered by payments pursuant to
Section 3.22 or Section 4.18 of this Agreement or pursuant to the
Interim Servicing 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 [____] and each Distribution Date
listed below, the aggregate Uncertificated Balance of the REMIC
[___] Regular Interests ending with the designation
[“A”] listed below:
|
|
REMIC I Regular Interests
|
|
[_________]
|
[_________________________________]
|
With respect to
the Class [____] Interest and any Distribution Date, an amount
equal to the Uncertificated Notional Amount of the REMIC II Regular
Interest [____].
“
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 [____] 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 Fannie Mae and Freddie 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 Fannie Mae and
Freddie 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 [__] 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 [__] 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, [___]% of all Voting
Rights will be allocated among the holders of the Class [____]
Certificates, the [____________] Certificates and the Class [____]
Certificates in proportion to the then outstanding Certificate
Principal Balances of their respective Certificates, [___]% of all
Voting Rights will be allocated among the holders of the Class
[____] Certificates and [___]% of all Voting Rights will be
allocated among the holders of the Class [____] 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.
“[____________] Custodial Agreement
”: The Custodial Agreement dated as of [_____________],
200[__], among the Trustee, the Master Servicer and the Servicers,
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 [____]
Certificates, the [____________] Certificates, the Class [____]
Certificates and the Class [____] 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 3.21 of this Agreement or by the Master
Servicer pursuant to Section 4.18 of this Agreement or by the
Interim Servicer pursuant to the Interim Servicing 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 [____] Certificates, second, to the Class [____]
Certificates, on a pro rata basis, in each case based on, and to
the extent of, [__] month’s interest at the then applicable
respective Pass-Through Rate on the respective Certificate
Principal Balance or Notional Amount, as applicable, of each such
Certificate and (2) the aggregate amount of any Realized Losses
allocated to the Class [____] Certificates, the [____________]
Certificates and Net WAC Rate Carryover Amounts paid to the Class
[____] Certificates, the [____________] Certificates and the Class
[____] Certificates incurred for any Distribution Date shall be
allocated to the Class [____] Certificates on a pro rata basis
based on, and to the extent of, [__] 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 3.22 of
this Agreement or the Master Servicer pursuant to Section 4.18 or
by the Interim Servicer pursuant to the Interim Servicing
Agreement) and any Relief Act Interest Shortfalls incurred in
respect of Group I Mortgage Loans shall be allocated first, to
REMIC I Regular Interest [__] and to the REMIC I Group I
Regular Interests ending with the designation “[____]”,
pro rata based on, and to the extent of, [__] 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 “[____]”, pro
rata based on, and to the extent of, [__] 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 3.22 of
this Agreement or the Master Servicer pursuant to Section 4.18 or
by the Interim Servicer pursuant to the Interim Servicing
Agreement) and any Relief Act Interest Shortfalls incurred in
respect of Group II Mortgage Loans shall be allocated first, to
REMIC I Regular Interest [__] and to the REMIC I Group II Regular
Interests ending with the designation “[____]”, pro
rata based on, and to the extent of, [__] 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 “[____]”, pro rata based
on, and to the extent of, [__] 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 3.22 of this Agreement
or the Master Servicer pursuant to Section 4.18 or by the Interim
Servicer pursuant to the Interim Servicing Agreement) and the REMIC
II Marker Allocation Percentage of any Relief Act Interest
Shortfalls incurred in respect of the Mortgage Loans for any
Distribution Date shall be allocated among REMIC II Regular
Interest [____], REMIC II Regular Interest [____],pro rata based
on, and to the extent of, [
] 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 3.22 of this Agreement or by the
Master Servicer pursuant to Section 4.18 of this Agreement or by
the Interim Servicer pursuant to the Interim Servicing 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 [____], REMIC II
Regular Interest [____] , pro rata based on, and to the extent of,
[ ] 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 and the [
] Assignment 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, the
Servicer and the Interim 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, and to the Master Servicer and
the Trustee, a copy of the Interim Servicing Agreement and the [
] Assignment
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 Seller 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 Seller 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. Ann. Laws Ch. 183C) or as defined
in the Indiana Home Loan Practices Act, effective January 1, 2005
(Ind. Code Ann. 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 Seller 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. Ann. Laws Ch. 183C) or as defined in the Indiana Home Loan
Practices Act, effective January 1, 2005 (Ind. Code Ann. 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. Ann. Laws Ch. 183C) or as defined
in the Indiana Home Loan Practices Act, effective January 1, 2005
(Ind. Code Ann. 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 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 Seller 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 Seller and the Servicer of such defect,
missing document or breach and request that the Seller deliver such
missing document, cure such defect or breach within [________]
([__]) days from the date the Seller was notified of such missing
document, defect or breach, and if the Seller 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 Seller under the Mortgage Loan Purchase
Agreement to repurchase such Mortgage Loan from REMIC I at the
Purchase Price within [________] ([__]) days after the date on
which the Seller was notified of such missing document, defect or
breach, if and to the extent that the Seller 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 Seller 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 Seller shall furnish to it and as shall be
necessary to vest in the Seller 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 Seller 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 Seller 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 Seller 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 [____] Certificates in any
Prepayment Charge, the Servicer shall promptly notify the Seller
and the Trustee of such breach. The Trustee shall enforce the
obligations of the Seller 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 Seller substitutes a Qualified
Substitute Mortgage Loan or Loans, such substitution shall be
effected by the Seller 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
[________] ([__]) 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
Seller. 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 Seller 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 Seller 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 [ ]
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 Seller 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 Seller 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 Seller shall deliver to it and
as shall be necessary to vest therein any Deleted Mortgage Loan
released pursuant hereto.
In addition, the
Seller 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 Seller, 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 [________]
([__]) Business Days give written notice thereof to the other
parties. In connection therewith, the Seller shall repurchase or
substitute one or more Qualified Substitute Mortgage Loans for the
affected Mortgage Loan within [________] ([__]) 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 Seller 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 Seller 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
Seller the Mortgage Loan to be released pursuant hereto in the same
manner, and on the same terms and conditions, as it would a
Mortgage Loan repurchased for breach of a representation or
warranty.
(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 Seller shall be required to take the
actions set forth in this Section
2.03.
(e)
Within
[________] ([__]) 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 limited liability company duly organized and validly existing
under the laws of the jurisdiction of its formation, and is duly
authorized and qualified to transact any and all business
contemplated by this Agreement to be conducted by 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 [__]
Certificates, by depositing such amount into the Collection
Account within [___] 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
[________] ([__]) Business Days following such discovery) to the
Trustee. Subject to Section 8.01, unless such breach shall
not be susceptible of cure within [________] ([__]) 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 [____]
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 th
