AMENDMENT NUMBER ONE to the POOLING AND SERVICING AGREEMENT Dated as of February 1, 2007 among ACE SECURITIES CORP. Depositor OCWEN LOAN SERVICING, LLC a Servicer COUNTRYWIDE HOME LOANS SERVICING LP a Servicer WELLS FARGO BANK, NATIONAL ASSOCIATION...
EXHIBIT
4.2
AMENDMENT
NUMBER ONE
to
the
Dated
as
of February 1, 2007
among
ACE
SECURITIES CORP.
Depositor
OCWEN
LOAN SERVICING, LLC
a
Servicer
COUNTRYWIDE
HOME LOANS SERVICING LP
a
Servicer
XXXXX
FARGO BANK, NATIONAL ASSOCIATION
Master
Servicer and Securities Administrator
and
HSBC
BANK
USA, NATIONAL ASSOCIATION
Trustee
______________________________________
ASSET
BACKED PASS-THROUGH CERTIFICATES
______________________________________
THIS
AMENDMENT NUMBER ONE, dated as of February 25, 2008 (this “Amendment Number
One”), to the Pooling and Servicing Agreement, dated as of February 1, 2007 (the
“Pooling and Servicing Agreement”), among ACE SECURITIES CORP., as depositor
(the “Depositor”), OCWEN LOAN SERVICING, LLC, as a servicer (“Ocwen”),
COUNTRYWIDE HOME LOANS SERVICING LP, as a servicer (“Countrywide” and together
with Ocwen, the “Servicers”), XXXXX FARGO BANK, NATIONAL ASSOCIATION, as master
servicer (the “Master Servicer”) and securities administrator (the “Securities
Administrator”) and HSBC BANK USA, NATIONAL ASSOCIATION (the
“Trustee”).
WITNESSETH
WHEREAS,
the Depositor, the Servicers, the Master Servicer, the Securities Administrator
and the Trustee entered into the Pooling and Servicing Agreement;
WHEREAS,
the Depositor desires to amend certain provisions of the Pooling and Servicing
Agreement as set forth in this Amendment Number One; and
WHEREAS,
Section 12.01 of the Pooling and Servicing Agreement provides that the Pooling
and Servicing Agreement may be amended from time to time by the Depositor,
the
Servicers, the Master Servicer, the Securities Administrator and the Trustee,
without the consent of any of the Certificateholders, to cure any ambiguity
or
defect contained therein upon the satisfaction of certain conditions set
forth
therein.
1
NOW,
THEREFORE, the parties hereto agree as follows:
SECTION
1. Defined
Terms.
For
purposes of this Amendment Number One, unless the context clearly requires
otherwise, all capitalized terms which are used but not otherwise defined
herein
shall have the respective meanings assigned to such terms in the Pooling
and
Servicing Agreement.
SECTION
2. The
Amendments.
2.1 Section
1.01 is hereby amended by deleting the definition of “Custodial Agreement” and
replacing it with the following:
“Custodial
Agreement”: Either of (i) the DBNTC Custodial Agreement or (ii) the Xxxxx Fargo
Custodial Agreement, or any other custodial agreement entered into after
the
date hereof with respect to any Mortgage Loan subject to this Agreement.
All
references to “Custodial Agreement” shall be deemed to refer to “the Custodial
Agreements”, “the applicable Custodial Agreement”, “the related Custodial
Agreement” or “a Custodial Agreement”, as the context shall require.
2.2 Section
1.01 is hereby amended by deleting the definition of “Custodian” and replacing
it with the following:
“Custodian”:
Either Xxxxx Fargo or DBNTC or any other custodian appointed under any custodial
agreement entered into after the date of this Agreement. All references to
“Custodian” shall be deemed to refer to “the Custodians”, “the applicable
Custodian”, “the related Custodian” or “a Custodian”, as the context shall
require.
2.3 Section
1.01 is hereby amended by deleting the definition of “Xxxxx Fargo” and replacing
it with the following:
“Xxxxx
Fargo”: Xxxxx Fargo Bank, National Association in its capacity as a Custodian
under the Xxxxx Fargo Custodial Agreement or any successor thereto.
2.4 Section
1.01 is hereby amended by adding the following definitions:
“DBNTC”:
Deutsche Bank National Trust Company, a national banking association, or
its
successor in interest.
“DBNTC
Custodial Agreement”: The Custodial Agreement, dated as of February 1, 2007,
among the Trustee, DBNTC and Countrywide, as may be amended or supplemented
from
time to time.
2
“Xxxxx
Fargo Custodial Agreement”: The Custodial Agreement dated as of February 1,
2007, among the Trustee, Xxxxx Fargo and the Servicers, as may be amended
or
supplemented from time to time.
2.5 Section
2.04(viii) is hereby deleted in its entirety and replaced with the following:
(viii) There
are
no affiliations, relationships or transactions relating to the Master Servicer
of a type that are described under Item 1119 of Regulation AB with DBNTC,
the
Depositor, the Sponsor, the Servicers, the Credit Risk Manager, the Cap
Counterparty, the Swap Provider or the Trustee.
2.6 Section
9.05 is hereby deleted in its entirety and replaced with the
following:
SECTION
9.05 Fees and Expenses of Trustee, Custodians and Securities
Administrator.
The
fees
of the Trustee and the Securities Administrator hereunder, of Xxxxx Fargo
as the
Custodian under the Xxxxx Fargo Custodial Agreement and of DBNTC as the
Custodian under the DBNTC Custodial Agreement shall be paid in accordance
with a
side letter agreement with the Master Servicer and at the sole expense of
the
Master Servicer. In addition, the Trustee, the Securities Administrator,
the
Custodians and any director, officer, employee or agent of the Trustee, the
Securities Administrator and the Custodians shall be indemnified by the Trust
and held harmless against any loss, liability or expense (including reasonable
attorney’s fees and expenses) incurred by the Trustee, the Custodians or the
Securities Administrator in connection with any claim or legal action or
any
pending or threatened claim or legal action arising out of or in connection
with
the acceptance or administration of its respective obligations and duties
under
this Agreement, including the Swap Agreement, the applicable Custodial Agreement
and any and all other agreements related hereto, other than any loss, liability
or expense, as applicable (i) solely with respect to the Trustee, for which
the
Trustee is indemnified by the Master Servicer or the Servicers, (ii) solely
with
respect to the Trustee and the Securities Administrator, that constitutes
a
specific liability of the Trustee or the Securities Administrator, as
applicable, pursuant to Section 11.01(g) of this Agreement or (iii) solely
with
respect to the Trustee and the Securities Administrator, any loss, liability
or
expense incurred by reason of willful misfeasance, bad faith or negligence
in
the performance of duties hereunder by the Trustee or the Securities
Administrator, as applicable, or (iv) by reason of reckless disregard of
its
obligations and duties hereunder or, as applicable, in accordance with the
related Custodial Agreement. In no event shall the Trustee, the Custodians,
the
Master Servicer or the Securities Administrator be liable for special, indirect
or consequential loss or damage of any kind whatsoever (including but not
limited to lost profits), even if it has been advised of the likelihood of
such
loss or damage and regardless of the form of action. The Master Servicer
agrees
to indemnify the Trustee, from, and hold the Trustee harmless against, any
loss,
liability or expense (including reasonable attorney’s fees and expenses)
incurred by the Trustee by reason of the Master Servicer’s willful misfeasance,
bad faith or gross negligence in the performance of its duties under this
Agreement or by reason of the Master Servicer’s reckless disregard of its
obligations and duties under this Agreement. In addition, the Sponsor agrees
to
indemnify the Trustee for, and to hold the Trustee harmless against, any
loss,
liability or expense arising out of, or in connection with, the provisions
set
forth in the last paragraph of Section 2.01 of this Agreement, including,
without limitation, all costs, liabilities and expenses (including reasonable
legal fees and expenses) of investigating and defending itself against any
claim, action or proceeding, pending or threatened, relating to the provisions
of such paragraph. The indemnities in this Section 9.05 shall survive the
termination or discharge of this Agreement and the resignation or removal
of the
Master Servicer, the Trustee, the Securities Administrator or the Custodians.
Any payment under this Section 9.05 made by the Master Servicer to the Trustee
in respect of the Trustee’s fees or the Master Servicer’s indemnification
obligation to the Trustee shall be from the Master Servicer’s own funds, without
reimbursement from REMIC I therefor.
3
SECTION
3. Conditions
Precedent.
The
following conditions precedent to the effectiveness of this Amendment have
been
fulfilled:
3.1 The
Trustee has received an Opinion of Counsel as required by Section 12.01 of
the
Pooling and Servicing Agreement stating that this Amendment Number One is
permitted under the Pooling and Servicing Agreement, that this Amendment
Number
One will not adversely affect in any material respect the interests of any
Certificateholder, that this Amendment Number One will not result in the
imposition of any tax on any Trust REMIC pursuant to the REMIC Provisions
or
cause any Trust REMIC to fail to qualify as a REMIC at any time that any
Certificates are outstanding and that this Amendment Number One is authorized
or
permitted by the Pooling and Servicing Agreement.
SECTION
4. Effect
of Amendment.
Upon
execution of this Amendment Number One, the Pooling and Servicing Agreement
shall be, and be deemed to be, modified and amended in accordance herewith
and
the respective rights, limitations, obligations, duties, liabilities and
immunities of the Depositor, the Servicers, the Master Servicer, the Securities
Administrator and the Trustee shall hereafter be determined, exercised and
enforced subject in all respects to such modifications and amendments, and
all
the terms and conditions of this Amendment Number One shall be deemed to
be part
of the terms and conditions of the Pooling and Servicing Agreement for any
and
all purposes. Except as modified and expressly amended by this Amendment
Number
One, the Pooling and Servicing Agreement is in all respects ratified and
confirmed, and all the terms, provisions and conditions thereof shall be
and
remain in full force and effect.
4
SECTION
5. Binding
Effect.
The
provisions of this Amendment Number One shall be binding upon and inure to
the
benefit of the respective successors and assigns of the parties hereto, and
all
such provisions shall inure to the benefit of the Depositor, the Servicers,
the
Master Servicer, the Securities Administrator and the Trustee.
SECTION
6. Governing
Law.
This
Amendment Number One shall be construed in accordance with the substantive
laws
of the State of New York (without regard to conflict of law principles other
than Section 5-1401 of the New York General Obligations Law which shall govern)
and the obligations, rights and remedies of the parties hereto shall be
determined in accordance with such laws.
SECTION
7. Severability
of Provisions.
If
any
one or more of the provisions or terms of this Amendment Number One shall
be for
any reason whatsoever held invalid, then such provisions or terms shall be
deemed severable from the remaining provisions or terms of this Amendment
Number
One and shall in no way affect the validity or enforceability of the other
provisions or terms of this Amendment Number One.
SECTION
8. Section
Headings.
The
section headings herein are for convenience of reference only, and shall
not
limit or otherwise affect the meaning hereof.
SECTION
9. Counterparts.
This
Amendment Number One may be executed in several counterparts, each of which
shall be an original and all of which shall constitute but one and the same
instrument.
[signature
pages follow]
5
IN
WITNESS WHEREOF, the Depositor, the Servicers, the Master Servicer, the
Securities Administrator and the Trustee have caused their names to be signed
hereto by their respective officers thereunto duly authorized as of the day
and
year first above written.
| ACE
SECURITIES CORP.
as
Depositor
|
OCWEN
LOAN SERVICING, LLC
as
a Servicer
|
|||
| |
|
|
||
| By: | /s/ Xxxxxx Xxxxxxxxxx | By: |
/s/
Xxxxx Xxxxxxxx
|
|
| Name: | Xxxxxx Xxxxxxxxxx |
Name:
|
Xxxxx
Xxxxxxxx
|
|
| Title: | Vice President | Title: |
Authorized
Representative
|
|
| By: | /s/ Xxxxx Xxxxx | |||
| Name: | Xxxxx Xxxxx | |||
| Title: | Vice President | |||
|
COUNTRYWIDE
HOME LOANS SERVICING LP
as
a Servicer
|
XXXXX
FARGO BANK, NATIONAL ASSOCIATION
as
Master Servicer and Securities
Administrator
|
|||
| |
|
|
||
| By: | /s/ Xxxx Xxxxxx | By: |
/s/
Xxxxxxx Xxx Xxxxxx
|
|
| Name: | Xxxx Xxxxxx |
Name:
|
Xxxxxxx
Xxx Xxxxxx
|
|
| Title: | 1st Vice President | Title: |
Vice
President
|
|
|
HSBC
BANK USA, NATIONAL ASSOCIATION
as
Trustee
|
|
|||
| |
|
|
||
| By: | /s/ Xxxxxxxxx Xxxxx |
|
||
| Name: | Xxxxxxxxx Xxxxx |
|
|
|
| Title: | Vice President |
|
||
