STANWICH ASSET ACCEPTANCE COMPANY, L.L.C. Depositor HOMECOMINGS FINANCIAL NETWORK, INC. Servicer and WELLS FARGO BANK, N.A. Trustee POOLING AND SERVICING AGREEMENT Dated as of May 1, 2006 Carrington Mortgage Loan Trust, Series 2006-RFC1 Asset-Backed...
STANWICH
ASSET ACCEPTANCE COMPANY, L.L.C.
Depositor
HOMECOMINGS
FINANCIAL NETWORK, INC.
Servicer
and
XXXXX
FARGO BANK, N.A.
Trustee
Dated
as
of May 1, 2006
Xxxxxxxxxx
Mortgage Loan Trust, Series 2006-RFC1
Asset-Backed
Pass-Through Certificates
TABLE
OF CONTENTS
|
ARTICLE
I
|
DEFINITIONS
|
|
SECTION
1.01
|
Defined
Terms
|
|
SECTION
1.02
|
Allocation
of Certain Interest Shortfalls
|
|
ARTICLE
II
|
CONVEYANCE
OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES
|
|
SECTION
2.01
|
Conveyance
of the Mortgage Loans
|
|
SECTION
2.02
|
Acceptance
of REMIC I by Trustee
|
|
SECTION
2.03
|
Repurchase
or Substitution of Mortgage Loans by RFC and the Seller
|
|
SECTION
2.04
|
[Reserved].
|
|
SECTION
2.05
|
Representations,
Warranties and Covenants of the Servicer
|
|
SECTION
2.06
|
Issuance
of the REMIC I Regular Interests and the Class R-I
Interest
|
|
SECTION
2.07
|
Conveyance
of the REMIC I Regular Interests; Acceptance of REMIC II by the
Trustee
|
|
SECTION
2.08
|
Issuance
of Class R Certificates
|
|
ARTICLE
III
|
ADMINISTRATION
AND SERVICING OF THE MORTGAGE LOANS
|
|
SECTION
3.01
|
Servicer
to Act as Servicer
|
|
SECTION
3.02
|
Sub-Servicing
Agreements Between Servicer and Sub-Servicers
|
|
SECTION
3.03
|
Successor
Sub-Servicers
|
|
SECTION
3.04
|
Liability
of the Servicer
|
|
SECTION
3.05
|
No
Contractual Relationship Between Sub-Servicers, the Trustee or the
Certificateholders
|
|
SECTION
3.06
|
Assumption
or Termination of Sub-Servicing Agreements by the
Trustee
|
|
SECTION
3.07
|
Collection
of Certain Mortgage Loan Payments
|
|
SECTION
3.08
|
Sub-Servicing
Accounts
|
|
SECTION
3.09
|
Collection
of Taxes, Assessments and Similar Items; Servicing
Accounts
|
|
SECTION
3.10
|
Custodial
Account and Certificate Account
|
|
SECTION
3.11
|
Withdrawals
from the Custodial Account and Certificate Account
|
|
SECTION
3.12
|
Investment
of Funds in the Custodial Account and the Certificate
Account
|
|
SECTION
3.13
|
[Reserved].
|
|
SECTION
3.14
|
Maintenance
of Hazard Insurance and Errors and Omissions and Fidelity
Coverage
|
|
SECTION
3.15
|
Enforcement
of Due-On-Sale Clauses; Assumption Agreements
|
|
SECTION
3.16
|
Realization
Upon Defaulted Mortgage Loans
|
|
SECTION
3.17
|
Trustee
to Cooperate; Release of Mortgage Files
|
|
SECTION
3.18
|
Servicing
Compensation
|
|
SECTION
3.19
|
Reports
to the Trustee and Others; Custodial Account Statements
|
|
SECTION
3.20
|
[Reserved].
|
|
SECTION
3.21
|
[Reserved].
|
|
SECTION
3.22
|
Access
to Certain Documentation
|
|
SECTION
3.23
|
Title,
Management and Disposition of REO Property
|
|
SECTION
3.24
|
Obligations
of the Servicer in Respect of Prepayment Interest
Shortfalls
|
|
SECTION
3.25
|
Obligations
of the Servicer in Respect of Mortgage Rates and Monthly
Payments
|
|
SECTION
3.26
|
Advance
Facility
|
|
SECTION
3.27
|
Net
WAC Rate Carryover Reserve Account
|
|
SECTION
3.28
|
Solicitations
|
|
ARTICLE
IV
|
PAYMENTS
TO CERTIFICATEHOLDERS
|
|
SECTION
4.01
|
Distributions
|
|
SECTION
4.02
|
Statements
to Certificateholders
|
|
SECTION
4.03
|
Remittance
Reports; Advances
|
|
SECTION
4.04
|
Allocation
of Realized Losses
|
|
SECTION
4.05
|
Compliance
with Withholding Requirements
|
|
SECTION
4.06
|
Exchange
Commission; Additional Information
|
|
ARTICLE
V
|
THE
CERTIFICATES
|
|
SECTION
5.01
|
The
Certificates
|
|
SECTION
5.02
|
Registration
of Transfer and Exchange of Certificates
|
|
SECTION
5.03
|
Mutilated,
Destroyed, Lost or Stolen Certificates
|
|
SECTION
5.04
|
Persons
Deemed Owners
|
|
SECTION
5.05
|
Certain
Available Information
|
|
ARTICLE
VI
|
THE
DEPOSITOR AND THE SERVICER
|
|
SECTION
6.01
|
Respective
Liabilities of the Depositor and the Servicer
|
|
SECTION
6.02
|
Merger
or Consolidation of the Depositor or the Servicer
|
|
SECTION
6.03
|
Limitation
on Liability of the Depositor, the Servicer and Others
|
|
SECTION
6.04
|
Limitation
on Resignation of the Servicer
|
|
SECTION
6.05
|
Rights
of the Depositor in Respect of the Servicer
|
|
ARTICLE
VII
|
DEFAULT
|
|
SECTION
7.01
|
Servicer
Events of Default
|
|
SECTION
7.02
|
Trustee
to Act; Appointment of Successor
|
|
SECTION
7.03
|
Notification
to Certificateholders
|
|
SECTION
7.04
|
Waiver
of Servicer Events of Default
|
|
ARTICLE
VIII
|
CONCERNING
THE TRUSTEE
|
|
SECTION
8.01
|
Duties
of Trustee
|
|
SECTION
8.02
|
Certain
Matters Affecting the Trustee
|
|
SECTION
8.03
|
Trustee
Not Liable for Certificates or Mortgage Loans
|
|
SECTION
8.04
|
Trustee
May Own Certificates
|
|
SECTION
8.05
|
Trustee’s
Fees and Expenses
|
|
SECTION
8.06
|
Eligibility
Requirements for Trustee
|
|
SECTION
8.07
|
Resignation
and Removal of the Trustee
|
|
SECTION
8.08
|
Successor
Trustee
|
|
SECTION
8.09
|
Merger
or Consolidation of Trustee
|
|
SECTION
8.10
|
Appointment
of Co-Trustee or Separate Trustee
|
|
SECTION
8.11
|
Trustee
to Execute Cap Contract
|
|
SECTION
8.12
|
Appointment
of Office or Agency
|
|
SECTION
8.13
|
Representations
and Warranties of the Trustee
|
|
ARTICLE
IX
|
TERMINATION
|
|
SECTION
9.01
|
Termination
Upon Repurchase or Liquidation of All Mortgage Loans
|
|
SECTION
9.02
|
Additional
Termination Requirements
|
|
ARTICLE
X
|
REMIC
PROVISIONS
|
|
SECTION
10.01
|
REMIC
Administration
|
|
SECTION
10.02
|
Prohibited
Transactions and Activities
|
|
SECTION
10.03
|
Servicer
and Trustee Indemnification
|
|
ARTICLE
XI
|
TRUSTEE
COMPLIANCE WITH REGULATION AB
|
|
SECTION
11.01
|
Intent
of the Parties; Reasonableness
|
|
SECTION
11.02
|
Additional
Representations and Warranties of the Trustee
|
|
SECTION
11.03
|
Information
to Be Provided by the Trustee.
|
|
SECTION
11.04
|
Report
on Assessment of Compliance and Attestation
|
|
SECTION
11.05
|
Indemnification;
Remedies
|
|
ARTICLE
XII
|
SERVICER
COMPLIANCE WITH REGULATION AB
|
|
SECTION
12.01
|
Intent
of the Parties; Reasonableness
|
|
SECTION
12.02
|
Additional
Representations and Warranties of the Servicer
|
|
SECTION
12.03
|
Information
to Be Provided by the Servicer
|
|
SECTION
12.04
|
Servicer
Compliance Statement
|
|
SECTION
12.05
|
Report
on Assessment of Compliance and Attestation
|
|
SECTION
12.06
|
Use
of Sub-Servicers and Subcontractors
|
|
SECTION
12.07
|
Indemnification;
Remedies
|
|
ARTICLE
XIII
|
MISCELLANEOUS
PROVISIONS
|
|
SECTION
13.01
|
Amendment
|
|
SECTION
13.02
|
Recordation
of Agreement; Counterparts
|
|
SECTION
13.03
|
Limitation
on Rights of Certificateholders
|
|
SECTION
13.04
|
Governing
Law
|
|
SECTION
13.05
|
Notices
|
|
SECTION
13.06
|
Severability
of Provisions
|
|
SECTION
13.07
|
Notice
to Rating Agencies
|
|
SECTION
13.08
|
Article
and Section References
|
|
SECTION
13.09
|
Grant
of Security Interest
|
|
SECTION
13.10
|
Intention
of Parties
|
|
SECTION
13.11
|
Assignment
|
|
SECTION
13.12
|
Inspection
and Audit Rights
|
|
SECTION
13.13
|
Certificates
Nonassessable and Fully Paid
|
|
SECTION
13.14
|
Perfection
Representations
|
|
SECTION
13.15
|
Notice
to Holder of Class CE Certificate
|
|
ARTICLE
XIV
|
RIGHTS
OF THE CLASS CE CERTIFICATEHOLDER
|
|
SECTION
14.01
|
Reports
and Notices
|
|
SECTION
14.02
|
Class
CE Certificateholder’s Directions With Respect to Defaulted Mortgage
Loans
|
Exhibits
|
Exhibit
A-1
|
Form
of Class A-1 Certificates
|
|
Exhibit
A-2
|
Form
of Class A-2 Certificates
|
|
Exhibit
A-3
|
Form
of Class A-3 Certificates
|
|
Exhibit
A-4
|
Form
of Class A-4 Certificates
|
|
Exhibit
A-5
|
Form
of Class M-1 Certificates
|
|
Exhibit
A-6
|
Form
of Class M-2 Certificates
|
|
Exhibit
A-7
|
Form
of Class M-3 Certificates
|
|
Exhibit
A-8
|
Form
of Class M-4 Certificates
|
|
Exhibit
A-9
|
Form
of Class M-5 Certificates
|
|
Exhibit
A-10
|
Form
of Class M-6 Certificates
|
|
Exhibit
A-11
|
Form
of Class M-7 Certificates
|
|
Exhibit
A-12
|
Form
of Class M-8 Certificates
|
|
Exhibit
A-13
|
Form
of Class M-9 Certificates
|
|
Exhibit
A-14
|
Form
of Class M-10 Certificates
|
|
Exhibit
A-15
|
Form
of Class CE Certificate
|
|
Exhibit
A-16
|
Form
of Class P Certificate
|
|
Exhibit
A-17
|
Form
of Class R-I Certificate
|
|
Exhibit
A-18
|
Form
of Class R-II Certificate
|
|
Exhibit
B
|
[Reserved]
|
|
Exhibit
C-1
|
Form
of Trustee’s Initial Certification
|
|
Exhibit
C-2
|
Form
of Trustee’s Final Certification
|
|
Exhibit
D
|
Form
of Mortgage Loan Purchase Agreement
|
|
Exhibit
E
|
Request
for Release
|
|
Exhibit
F-1
|
Form
of Transferor Representation Letter and Form of Transferee Representation
Letter in Connection with Transfer of the Private Certificates Pursuant
to
Rule 144A Under the 1933 Act
|
|
Exhibit
F-2
|
Form
of Transfer Affidavit and Agreement and Form of Transferor Affidavit
in
Connection with Transfer of Residual Certificates
|
|
Exhibit
G
|
Form
of Certification with respect to ERISA and the Code
|
|
Exhibit
H
|
Form
of Lost Note Affidavit
|
|
Exhibit
I-1
|
Form
of 10-K Certificate
|
|
Exhibit
I-2
|
Form
of Certification to be Provided to Servicer by the
Trustee
|
|
Exhibit
J
|
Form
Servicing Criteria to be Addressed in Assessment of
Compliance
|
|
Exhibit
K
|
Form
of Cap Contract
|
|
Exhibit
L
|
Form
of Report Pursuant to Section 13.01
|
|
Schedule
1
|
Mortgage
Loan Schedule
|
|
Schedule
2
|
Prepayment
Charge Schedule
|
|
Schedule
3
|
Perfection
Representations, Warranties and Covenants
|
|
Schedule
4
|
Standard
File Layout Data Elements
|
This
Pooling and Servicing Agreement is dated and effective as of May 1, 2006, among
STANWICH ASSET ACCEPTANCE COMPANY, L.L.C., a Delaware limited liability company,
as Depositor, HOMECOMINGS FINANCIAL NETWORK, INC., a Delaware corporation,
as
Servicer, and XXXXX FARGO BANK, N.A., a national banking association, as
Trustee.
PRELIMINARY
STATEMENT:
The
Depositor intends to sell pass-through certificates to be issued hereunder
in
multiple classes, which in the aggregate will evidence the entire beneficial
ownership interest in each REMIC (as defined herein) created hereunder. The
Trust Fund (as defined herein) 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 (other than
any Servicer Prepayment Charge Payment Amounts, the Net WAC Rate Carryover
Reserve Account and the Cap Contracts) subject to this Agreement as a REMIC
for
federal income tax purposes, and such segregated pool of assets will be
designated as “REMIC I.” The Class R-I Interest will be the sole class of
“residual interests” in REMIC I for purposes of the REMIC Provisions (as defined
herein). The following table irrevocably sets forth the designation, the REMIC
I
Remittance Rate, the initial Uncertificated Balance and, for purposes of
satisfying Treasury regulation Section 1.860G-1(a)(4)(iii), the “latest possible
maturity date” for each of the REMIC I Regular Interests (as defined herein).
None of the REMIC I Regular Interests will be certificated.
|
Designation
|
REMIC
I
Remittance
Rate
|
Initial
Uncertificated
Balance
|
Latest
Possible
Maturity
Date(1)
|
||||
|
I-LTAA
|
Variable
(2)
|
$
|
753,081,917.42
|
April
25, 2036
|
|||
|
I-LTA1
|
Variable
(2)
|
$
|
3,203,330.00
|
April
25, 2036
|
|||
|
I-LTA2
|
Variable
(2)
|
$
|
1,340,740.00
|
April
25, 2036
|
|||
|
I-LTA3
|
Variable
(2)
|
$
|
875,090.00
|
April
25, 2036
|
|||
|
I-LTA4
|
Variable
(2)
|
$
|
409,540.00
|
April
25, 2036
|
|||
|
I-LTM1
|
Variable
(2)
|
$
|
299,700.00
|
April
25, 2036
|
|||
|
I-LTM2
|
Variable
(2)
|
$
|
280,480.00
|
April
25, 2036
|
|||
|
I-LTM3
|
Variable
(2)
|
$
|
165,220.00
|
April
25, 2036
|
|||
|
I-LTM4
|
Variable
(2)
|
$
|
149,850.00
|
April
25, 2036
|
|||
|
I-LTM5
|
Variable
(2)
|
$
|
146,010.00
|
April
25, 2036
|
|||
|
I-LTM6
|
Variable
(2)
|
$
|
126,790.00
|
April
25, 2036
|
|||
|
I-LTM7
|
Variable
(2)
|
$
|
122,950.00
|
April
25, 2036
|
|||
|
I-LTM8
|
Variable
(2)
|
$
|
107,580.00
|
April
25, 2036
|
|||
|
I-LTM9
|
Variable
(2)
|
$
|
76,850.00
|
April
25, 2036
|
|||
|
I-LTM10
|
Variable
(2)
|
$
|
88,370.00
|
April
25, 2036
|
|||
|
I-LTZZ
|
Variable
(2)
|
$
|
7,976,518.72
|
April
25, 0000
|
|||
|
X-XXX
|
Variable
(2)
|
$
|
100
|
April
25, 2036
|
|||
_______________
|
(1)
|
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the
Distribution Date immediately following the maturity date for the
Mortgage
Loan with the latest maturity date has been designated as the “latest
possible maturity date” for each REMIC I Regular
Interest.
|
|
(2)
|
Calculated
in accordance with the definition of “REMIC I Remittance Rate”
herein.
|
REMIC
II
As
provided herein, the Trustee will elect to treat the segregated pool of assets
consisting of the REMIC I Regular Interests as a REMIC for federal income tax
purposes, and such segregated pool of assets will be designated as “REMIC II.”
The Class R-II Interest will evidence the sole class of “residual interests” in
REMIC II for purposes of the REMIC Provisions under federal income tax law.
The
following table irrevocably sets forth the designation, the Pass-Through Rate,
the initial aggregate Certificate Principal Balance and, for purposes of
satisfying Treasury regulation Section 1.860G-1(a)(4)(iii), the “latest possible
maturity date” for the indicated Classes of Certificates.
|
Designation
|
Pass-Through
Rate
|
Initial
Aggregate Certificate Principal Balance
|
Latest
Possible Maturity Date(1)
|
||||
|
Class
A-1(2)
|
Variable(2)
|
$
|
320,333,000.00
|
April
25, 2036
|
|||
|
Class
A-2(2)
|
Variable(2)
|
$
|
134,074,000.00
|
April
25, 2036
|
|||
|
Class
A-3(2)
|
Variable(2)
|
$
|
87,509,000.00
|
April
25, 2036
|
|||
|
Class
A-4(2)
|
Variable(2)
|
$
|
40,954,000.00
|
April
25, 2036
|
|||
|
Class
M-1(2)
|
Variable(2)
|
$
|
29,970,000.00
|
April
25, 2036
|
|||
|
Class
M-2(2)
|
Variable(2)
|
$
|
28,048,000.00
|
April
25, 2036
|
|||
|
Class
M-3(2)
|
Variable(2)
|
$
|
16,522,000.00
|
April
25, 2036
|
|||
|
Class
M-4(2)
|
Variable(2)
|
$
|
14,985,000.00
|
April
25, 2036
|
|||
|
Class
M-5(2)
|
Variable(2)
|
$
|
14,601,000.00
|
April
25, 2036
|
|||
|
Class
M-6(2)
|
Variable(2)
|
$
|
12,679,000.00
|
April
25, 2036
|
|||
|
Class
M-7(2)
|
Variable(2)
|
$
|
12,295,000.00
|
April
25, 2036
|
|||
|
Class
M-8(2)
|
Variable(2)
|
$
|
10,758,000.00
|
April
25, 2036
|
|||
|
Class
M-9(2)
|
Variable(2)
|
$
|
7,685,000.00
|
April
25, 2036
|
|||
|
Class
M-10(2)
|
Variable(2)
|
$
|
8,837,000.00
|
April
25, 2036
|
|||
|
Class
CE(3)
|
Variable(4)
|
$
|
29,200,936.14
|
April
25, 2036
|
|||
|
Class
P
|
N/A(5)
|
$
|
100.00
|
April
25, 2036
|
|||
_______________
|
(1)
|
For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury regulations,
the
Distribution Date immediately following the maturity date for the
Mortgage
Loans 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 CE Certificates will be comprised of two REMIC II Regular Interests,
a principal only regular interest designated REMIC II Regular Interest
CE-PO and an interest only regular interest designated REMIC II Regular
Interest CE-IO, each of which will be entitled to distributions as
set
forth herein.
|
|
(4)
|
The
Class CE Certificates will accrue interest at its variable Pass-Through
Rate on the Notional Amount of the Class CE-IO outstanding from time
to
time which notional amount shall equal the aggregate Uncertificated
Balance of the REMIC I Regular Interests. The Class CE Certificates
will
not accrue interest on its Certificate Principal
Balance.
|
|
(5)
|
The
Class P Certificates will not accrue
interest.
|
As
of the
Cut-off Date, the Mortgage Loans had an aggregate Stated Principal Balance
equal
to $768,451,036.14.
In
consideration of the mutual agreements herein contained, the Depositor, the
Servicer 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, capitalized terms used but not otherwise defined
herein are defined in Appendix A hereto, which also contains rules as to usage
that shall be applicable herein. Unless otherwise specified, all calculations
described herein shall be made on the basis of a 360-day year consisting of
twelve 30-day months.
SECTION
1.02 Allocation
of Certain Interest Shortfalls.
For
purposes of calculating the amount of Accrued Certificate Interest and the
amount of the Interest Distribution Amount for the Class A Certificates, the
Mezzanine Certificates and the Class CE Certificates for any Distribution Date,
(1) the aggregate amount of any Prepayment Interest Shortfalls (to the extent
not covered by payments by the Servicer pursuant to Section
3.24)
and any
Relief Act Interest Shortfall incurred in respect of the Mortgage Loans for
any
Distribution Date shall be allocated first, to the Class CE Certificates based
on, and to the extent of, one month’s interest at the then applicable
Pass-Through Rate on the Notional Amount of the Class CE Certificates and,
thereafter, among the Class A Certificates and the Mezzanine Certificates on
a
pro
rata
basis
based on, and to the extent of, one month’s interest at the then applicable
respective Pass-Through Rate on the respective Certificate Principal Balance
of
each such Certificate and (2) the aggregate amount of any Realized Losses
incurred for any Distribution Date shall be allocated to the Class CE
Certificates based on, and to the extent of, one month’s interest at the then
applicable Pass-Through Rate on the Notional Amount of the Class CE
Certificates.
For
purposes of calculating the amount of Uncertificated Interest for the REMIC
I
Regular Interests for any Distribution Date, the aggregate amount of any
Prepayment Interest Shortfalls (to the extent not covered by payments by the
Servicer pursuant to Section
3.24)
and any
Relief Act Interest Shortfalls incurred in respect of the Mortgage Loans for
any
Distribution Date shall be allocated among REMIC I Regular Interest I-LTAA,
REMIC I Regular Interest I-LTA1, REMIC I Regular Interest I-LTA2, REMIC I
Regular Interest I-LTA3, REMIC I Regular Interest I-LTA4, REMIC I Regular
Interest I-LTM1, REMIC I Regular Interest I-LTM2, REMIC I Regular Interest
I-LTM3, REMIC I Regular Interest I-LTM4, REMIC I Regular Interest I-LTM5, REMIC
I Regular Interest I-LTM6, REMIC I Regular Interest I-LTM7, REMIC I Regular
Interest I-LTM8, REMIC I Regular Interest I-LTM9, REMIC I Regular Interest
I-LTM10 and REMIC I Regular Interest I-LTZZ pro
rata
based
on, and to the extent of, one month’s interest at the then applicable respective
Pass-Through Rate on the respective Uncertificated Balance of each such REMIC
I
Regular Interest.
ARTICLE
II
CONVEYANCE
OF MORTGAGE LOANS;
ORIGINAL
ISSUANCE OF CERTIFICATES
SECTION
2.01 Conveyance
of the Mortgage Loans.
On the
Closing Date, the Depositor will transfer, assign, set over and otherwise convey
to the Trustee 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 all other assets included or to be
included in REMIC I. Such assignment includes all interest and principal
received by the Depositor or the Servicer on or with respect to the Mortgage
Loans (other than payments of principal and interest due on such Mortgage Loans
on or before the Cut-off Date). The Depositor herewith delivers to the Trustee
an executed copy of the Mortgage Loan Purchase Agreement.
In
connection with such transfer and assignment, the Depositor shall deliver to
and
deposit with the Trustee the following documents or instruments with respect
to
each Mortgage Loan so transferred and assigned (in each case, a “Mortgage
File”):
(i) the
original Mortgage Note, endorsed in blank or in the following form “Pay to the
order of Xxxxx Fargo Bank, N.A., as Trustee under the applicable agreement,
without recourse,” with all prior and intervening endorsements showing a
complete chain of endorsement from the originator to the Person so endorsing
to
the Trustee;
(ii) the
original Mortgage (noting the presence of the MIN of the Mortgage Loan and
language indicating that the Mortgage Loan is a MOM Loan if the Mortgage Loan
is
a MOM Loan) with evidence of recording thereon, and the original recorded power
of attorney, if the Mortgage was executed pursuant to a power of attorney,
with
evidence of recording thereon;
(iii) unless
the Mortgage Loan is registered on the MERS® System, an original Assignment in
blank;
(iv) the
original recorded Assignment or Assignments showing a complete chain of
assignment from the originator to the Person assigning the Mortgage to the
Trustee (or to MERS if the Mortgage Loan is registered on the MERS® System and
noting the presence of MIN) as contemplated by the immediately preceding
clause
(iii);
and
(v) the
original or copies of each assumption, modification, consolidation or extension
agreements, if any.
With
respect to a maximum of approximately 2.0% of the Original Mortgage Loans by
outstanding Stated Principal Balance of the Original Mortgage Loans as of the
Cut-off Date, if any original Mortgage Note referred to in Section
2.01(i)
above
cannot be located, the obligations of the Depositor to deliver such documents
shall be deemed to be satisfied upon delivery to the Trustee of a photocopy
of
such Mortgage Note, if available, with a lost note affidavit substantially
in
the form of Exhibit
H
attached
hereto. If any of the original Mortgage Notes for which a lost note affidavit
was delivered to the Trustee is subsequently located, such original Mortgage
Note shall be delivered to
the
Trustee
within three Business Days.
If
any of
the documents referred to in Sections
2.01(ii),
(iii)
or
(iv)
above
has, as of the Closing Date, been submitted for recording but either (x) has
not
been returned from the applicable public recording office or (y) has been lost
or such public recording office has retained the original of such document,
the
obligations of the Depositor to deliver such documents shall be deemed to be
satisfied upon (1) delivery to the Trustee of a copy of each such document
certified by RFC in the case of (x) above or the applicable public recording
office in the case of (y) above to be a true and complete copy of the original
that was submitted for recording and (2) if such copy is certified by RFC,
delivery to the Trustee, promptly upon receipt thereof of either the original
or
a copy of such document certified by the applicable public recording office
to
be a true and complete copy of the original. Notice shall be provided to the
Trustee and the Rating Agencies by the Depositor if delivery pursuant to
clause
(2)
above
will be made more than 180 days after the Closing Date. If the original lender’s
title insurance policy was not delivered pursuant to Section
2.01(vi)
above,
the Depositor shall deliver or cause to be delivered to the Trustee, promptly
after receipt thereof, the original lender’s title insurance policy. The
Depositor shall deliver or cause to be delivered to the Trustee promptly upon
receipt thereof any other original documents constituting a part of a Mortgage
File received with respect to any Mortgage Loan, including, but not limited
to,
any original documents evidencing an assumption or modification of any Mortgage
Loan.
Except
with respect to any Mortgage Loan for which MERS is identified on the Mortgage,
the Trustee shall enforce the obligations of the Seller under the Mortgage
Loan
Purchase Agreement to promptly (within sixty Business Days following the later
of the Closing Date and the date of receipt by the Trustee of the recording
information for a Mortgage, but in no event later than ninety days following
the
Closing Date) submit or cause to be submitted for recording, at the expense
of
RFC and at no expense to the Trust Fund, the Trustee or the Depositor, in the
appropriate public office for real property records, each Assignment referred
to
in Sections
2.01(iii)
and
(iv)
above
and the Depositor shall execute each original Assignment or cause each original
Assignment to be executed in the following form: “Xxxxx Fargo Bank, N.A., as
Trustee under the applicable agreement.” In the event that any such Assignment
is lost or returned unrecorded because of a defect therein, the Seller shall
promptly prepare or cause to be prepared (at the expense of RFC) a substitute
Assignment or cure or cause to be cured such defect, as the case may be, and
thereafter cause each such Assignment to be duly recorded. If RFC is unable
to
pay the cost of recording the Assignments, such expense will be paid by the
Trustee and shall be reimbursable to the Trustee as an Extraordinary Trust
Fund
Expense. Notwithstanding the foregoing, the Trustee shall not be responsible
for
determining whether any Assignment delivered by the Depositor hereunder is
in
recordable form.
Notwithstanding
the foregoing, however, for administrative convenience and facilitation of
servicing and to reduce closing costs, the Assignments shall not be required
to
be submitted for recording (except with respect to any Mortgage Loan located
in
Maryland) unless the Trustee or the Depositor receives written notice that
failure to record would result in a withdrawal or a downgrading by any Rating
Agency of the rating on any Class of Certificates; provided,
however,
the
Trustee shall enforce the obligations of the Seller under the Mortgage Loan
Purchase Agreement to submit or cause to be submitted each Assignment for
recording in the manner described above, except with respect to any Mortgage
Loan for which MERS is identified on the Mortgage, at no expense to the Trust
Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction
by
Holders of Certificates entitled to at least 25% of the Voting Rights, (ii)
the
occurrence of a Servicer Event of Default, (iii) the occurrence of a bankruptcy,
insolvency or foreclosure relating to the Servicer, (iv) the occurrence of
a
servicing transfer as described in Section
7.02
hereof,
(v) with respect to any one Assignment, the occurrence of a bankruptcy,
insolvency or foreclosure relating to the Mortgagor under the related Mortgage
and (vi) any Mortgage Loan that is 90 days or more delinquent. Upon receipt
of
written notice by the Trustee from the Servicer that recording of the
Assignments is required pursuant to one or more of the conditions set forth
in
the preceding sentence, the Depositor shall be required to deliver such
Assignments or shall cause such Assignments to be delivered within 30 days
following receipt of such notice.
All
original documents relating to the Mortgage Loans that are not delivered to
the
Trustee are and shall be held by or on behalf of the Seller, the Depositor
or
the Servicer, as the case may be, in trust for the benefit of the Trustee on
behalf of the Certificateholders. In the event that any such original document
is required pursuant to the terms of this Section
2.01
to be a
part of a Mortgage File, such document shall be delivered promptly to the
Trustee. Any such original document delivered to or held by the Depositor that
is not required pursuant to the terms of this Section to be a part of a Mortgage
File, shall be delivered promptly to the Servicer.
The
parties hereto understand and agree that it is not intended that any Mortgage
Loans be included in the Trust that are (a) “high cost” loans under the Home
Ownership and Equity Protection Act of 1994 or (b) “high cost,” “threshold,”
“covered” or “predatory” loans under any other applicable federal, state or
local law (including without limitation any regulation or ordinance) (or a
similarly classified loan using different terminology under a law imposing
heightened regulatory scrutiny or additional legal liability for residential
mortgage loans having high interest rates, points and/or fees).
SECTION
2.02 Acceptance
of REMIC I by Trustee.
The
Trustee acknowledges receipt, subject to the provisions of Section
2.01
above
and subject to any exceptions noted on the exception report described in the
next paragraph below, of the documents referred to in Section
2.01
(other
than such documents described in Section
2.01(v))
and all
other assets included in the definition
of “REMIC I”
under
clauses
(i),
(iii),
(iv)
and
(v)
(to the
extent of amounts attributable thereto deposited into the Certificate Account)
and declares that it holds and will hold such documents and the other documents
delivered to it constituting a Mortgage File, and that it 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.
The
Trustee agrees, for the benefit of the Certificateholders, to review each
Mortgage File on or before the Closing Date, and to certify in substantially
the
form attached
hereto as Exhibit C-1 that,
as
to each Mortgage Loan listed in the Mortgage Loan Schedule (other than any
Mortgage Loan paid in full or any Mortgage Loan specifically identified in
the
exception report annexed thereto as not being covered by such certification),
(i) all documents constituting part of such Mortgage File (other than such
documents described in Section
2.01(v))
required
to be delivered to it pursuant to this Agreement are in its possession, (ii)
such documents have been reviewed by it and appear regular on their face and
relate to such Mortgage Loan and (iii) based on its examination and only as
to the foregoing, the information set forth in the Mortgage Loan Schedule that
corresponds to items
(i),
(iii),
(xii),
(xiii)
and
(xvi)
of the
definition
of “Mortgage Loan Schedule”
accurately reflects information set forth in the Mortgage File. It is herein
acknowledged that, in conducting such review, the Trustee was under no duty
or
obligation (i) to inspect, review or examine any such documents, instruments,
certificates or other papers to determine whether they are genuine, enforceable,
valid, legally binding, effective or appropriate for the represented purpose
or
whether they have actually been recorded or are in recordable form or that
they
are other than what they purport to be on their face, (ii) to determine whether
any Mortgage File should include any of the documents specified in clause
(v)
of
Section
2.01
or (iii)
to determine the perfection or priority of any security interest in any such
documents or instruments. Notwithstanding the foregoing, in conducting the
review described in this Section
2.02,
the
Trustee shall not be responsible for determining (i) if an Assignment is
sufficient under the laws of the jurisdiction wherein the related Mortgaged
Property is located to reflect of record the sale of the Mortgage or (ii) if
a
Mortgage creates a first or second lien on, or first or second priority security
interest in, a Mortgaged Property.
Prior
to
the first anniversary date of this Agreement, the Trustee shall deliver to
the
Depositor, the Trustee and the Servicer a final certification in the form
annexed hereto as Exhibit C-2 evidencing the completeness of the Mortgage Files,
with any applicable exceptions noted thereon, and the Servicer shall forward
a
copy thereof to any Sub-Servicer.
If
in the
process of reviewing the Mortgage Files and making or preparing, as the case
may
be, the certifications referred to above, the Trustee, finds any document or
documents constituting a part of a Mortgage File to be missing or defective
in
any material respect, at the conclusion of its review the Trustee shall so
notify the Depositor and the Servicer. In addition, upon the discovery by the
Depositor, the Servicer or the Trustee of a breach of any of the representations
and warranties made by either RFC or the Seller in the related Mortgage Loan
Purchase Agreement in respect of any Mortgage Loan which materially adversely
affects such Mortgage Loan or the interests of the Certificateholders in such
Mortgage Loan, the party discovering such breach shall give prompt written
notice to the other parties.
The
Trustee shall, at the written request and expense of any Certificateholder,
provide a written report to such Certificateholder of all Mortgage Files
released to the Servicer for servicing purposes.
The
Depositor and the Trustee intend that the assignment and transfer herein
contemplated is absolute and constitutes a sale of the Mortgage Loans, the
related Mortgage Notes and the related documents, conveying good title thereto
free and clear of any liens and encumbrances, from the Depositor to the Trustee
in trust for the benefit of the Certificateholders and that such property not
be
part of the Depositor’s estate or property of the Depositor in the event of any
insolvency by the Depositor. In the event that such conveyance is deemed to
be,
or to be made as security for, a loan, the parties intend that the Depositor
shall be deemed to have granted and does hereby grant to the Trustee a first
priority perfected security interest in all of the Depositor’s right, title and
interest in and to the Mortgage Loans, the related Mortgage Notes and the
related documents, and that this Agreement shall constitute a security agreement
under applicable law.
SECTION
2.03 Repurchase
or Substitution of Mortgage Loans by RFC and the Seller.
(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 the breach by RFC or the
Seller of any representation, warranty or covenant under the Mortgage Loan
Purchase Agreement in respect of any Mortgage Loan that materially adversely
affects the value of such Mortgage Loan or the interest therein of the
Certificateholders, the Trustee shall promptly notify the Seller, RFC and the
Servicer of such defect, missing document or breach and request that RFC or
the
Seller, as applicable, deliver such missing document or cure such defect or
breach within 60 days from the date RFC or the Seller, as applicable, was
notified of such missing document, defect or breach, and if RFC or the Seller,
as applicable, 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 RFC or the Seller, as applicable, under the Mortgage Loan
Purchase Agreement to repurchase such Mortgage Loan from REMIC I at the Purchase
Price within 90 days after the date on which RFC or the Seller, as applicable,
was notified (subject to Section
2.03(c))
of such
missing document, defect or breach, if and to the extent that RFC or the Seller,
as applicable, 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 Custodial Account and the Trustee, upon receipt
of
written certification from the Servicer of such deposit, shall release to RFC
or
the Seller, as applicable, the related Mortgage File and the Trustee shall
execute and deliver such instruments of transfer or assignment, in each case
without recourse, as RFC or the Seller, as applicable, shall furnish to it
and
as shall be necessary to vest in RFC or the Seller, as applicable, any Mortgage
Loan released pursuant hereto. 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, RFC or the Seller, as applicable, 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);
provided,
however,
RFC
may
not substitute a Qualified Substitute Mortgage Loan for any Deleted Mortgage
Loan that violates any predatory or abusive lending law. In furtherance of
the
foregoing, if RFC or the Seller, as applicable, is not a member of MERS and
repurchases a Mortgage Loan which is registered on the MERS® System, RFC or the
Seller, as applicable, at its own expense and without any right of
reimbursement, shall cause MERS to execute and deliver an assignment of the
Mortgage in recordable form to transfer the Mortgage from MERS to RFC or the
Seller, as applicable, and shall cause such Mortgage to be removed from
registration on the MERS® System in accordance with MERS’ rules and regulations.
It is understood and agreed that the obligation of RFC or the Seller, as
applicable, 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.
(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 RFC or the Seller, as applicable, substitutes
a
Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected
by RFC or the Seller, as applicable, delivering to 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
2.01,
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 Trustee shall acknowledge receipt for such Qualified
Substitute Mortgage Loan or Loans and, within ten Business Days thereafter,
shall review such documents as specified in Section
2.02
and
deliver to the Depositor and the Servicer, with respect to such Qualified
Substitute Mortgage Loan or Loans, a certification substantially in the form
attached hereto as Exhibit C-1, with any applicable exceptions noted thereon.
Within one year of the date of substitution, the Trustee shall deliver to the
Depositor and the Servicer a certification substantially in the form of Exhibit
C-2 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 RFC or the Seller, as applicable. 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 RFC or the Seller, as applicable, 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. Upon such substitution, such Qualified Substitute
Mortgage Loan or Loans shall constitute part of the Mortgage Pool 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 in the Mortgage Loan Purchase Agreement.
For
any
month in which RFC or the Seller, as applicable, 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 Stated Principal Balance thereof as of the date of substitution, together
with one month’s interest on such Stated Principal Balance at the applicable
Expense Adjusted Mortgage Rate, plus
all
outstanding Advances and Servicing Advances (including Nonrecoverable Advances
and Nonrecoverable Servicing Advances) related thereto. On the date of such
substitution, RFC or the Seller, as applicable, will deliver or cause to be
delivered to the Servicer for deposit in the Custodial Account an amount equal
to the Substitution Shortfall Amount, if any, and upon receipt of the related
Qualified Substitute Mortgage Loan or Loans and certification by the Servicer
of
such deposit, release to RFC or the Seller, as applicable, the related Mortgage
File or Files and the Trustee shall execute and deliver such instruments of
transfer or assignment, in each case without recourse, RFC or the Seller, as
applicable, shall deliver to it and as shall be necessary to vest therein any
Deleted Mortgage Loan released pursuant hereto.
In
addition, RFC or the Seller, as applicable, 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 Servicer or the Trustee that any Mortgage Loan
does not constitute a “qualified mortgage” within the meaning of Section
860G(a)(3) of the Code, the party discovering such fact shall within two
Business Days give written notice thereof to the other parties. In connection
therewith, RFC shall repurchase or, subject to the limitations set forth in
Section
2.03(b),
substitute one or more Qualified Substitute Mortgage Loans for the affected
Mortgage Loan within 90 days of the earlier of discovery or receipt of such
notice with respect to such affected Mortgage Loan. Such repurchase or
substitution shall be made by (i) RFC or the Seller, as the case may be, 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 RFC or the Seller,
as
the case may be, under the Mortgage Loan Purchase Agreement, or (ii) the
Depositor, if the affected Mortgage Loan’s status as a non-qualified mortgage is
a breach of no 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 RFC 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.
SECTION
2.04 [Reserved].
SECTION
2.05 Representations,
Warranties and Covenants of the Servicer.
The
Servicer hereby represents, warrants and covenants to the Trustee, for the
benefit of the Certificateholders and to the Depositor that as of the Closing
Date or as of such date specifically provided herein:
(i) The
Servicer is duly organized, validly existing, and in good standing under the
laws of the jurisdiction of its formation and has all licenses necessary to
carry on its business as now being conducted and is licensed, qualified and
in
good standing in the states where the Mortgaged Property is located if the
laws
of such state require licensing or qualification in order to conduct business
of
the type conducted by the Servicer or to ensure the enforceability or validity
of each Mortgage Loan; the Servicer has the power and authority to execute and
deliver this Agreement and to perform in accordance herewith; the execution,
delivery and performance of this Agreement (including all instruments of
transfer to be delivered pursuant to this Agreement) by the Servicer and the
consummation of the transactions contemplated hereby have been duly and validly
authorized; this Agreement evidences the valid, binding and enforceable
obligation of the Servicer, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement
of
creditors’ rights generally; and all requisite corporate action has been taken
by the Servicer to make this Agreement valid and binding upon the Servicer
in
accordance with its terms;
(ii) The
consummation of the transactions contemplated by this Agreement is in the
ordinary course of business of the Servicer and will not result in the breach
of
any term or provision of the charter or by-laws of the Servicer or result in
the
breach of any term or provision of, or conflict with or constitute a default
under or result in the acceleration of any obligation under, any agreement,
indenture or loan or credit agreement or other instrument to which the Servicer
or its property is subject, or result in the violation of any law, rule,
regulation, order, judgment or decree to which the Servicer or its property
is
subject;
(iii) The
execution and delivery of this Agreement by the Servicer and the performance
and
compliance with its obligations and covenants hereunder do not require the
consent or approval of any governmental authority or, if such consent or
approval is required, it has been obtained;
(iv) This
Agreement, and all documents and instruments contemplated hereby which are
executed and delivered by the Servicer, constitute and will constitute valid,
legal and binding obligations of the Servicer, enforceable in accordance with
their respective terms, except as the enforcement thereof may be limited by
applicable bankruptcy laws and general principles of equity;
(v) The
Servicer is not in violation of, and the execution and delivery of this
Agreement by the Servicer and its performance and compliance with the terms
of
this Agreement will not constitute a violation with respect to, any order or
decree of any court or any order or regulation of any federal, state, municipal
or governmental agency having jurisdiction over the Servicer or its assets,
which violation will likely have consequences that would materially and
adversely affect the condition (financial or otherwise) or the operation of
the
Servicer or its assets or will likely have consequences that would materially
and adversely affect the performance of its obligations and duties hereunder
or
result in the creation or imposition of any lien, charge or encumbrance that
would have an adverse effect upon any of its properties pursuant to the terms
of
any mortgage, contract, deed of trust or other instrument, or impair the ability
of the Trustee to realize on the Mortgage Loans, impair the value of the
Mortgage Loans, or impair the ability of the Trustee to realize the full amount
of any insurance benefits accruing pursuant to this Agreement;
(vi) The
Servicer does not believe, nor does it have any reason or cause to believe,
that
it cannot perform each and every covenant contained in this
Agreement;
(vii) There
is
no action, suit, proceeding or investigation pending or, to its knowledge,
threatened against the Servicer that, either individually or in the aggregate,
(A) may result in any change in the business, operations, financial condition,
properties or assets of the Servicer that might prohibit or materially and
adversely affect the performance by such Servicer of its obligations under,
or
validity or enforceability of, this Agreement, or (B) may result in any material
impairment of the right or ability of the Servicer to carry on its business
substantially as now conducted, or (C) may result in any material liability
on
the part of the Servicer, or (D) would draw into question the validity or
enforceability of this Agreement or of any action taken or to be taken in
connection with the obligations of the Servicer contemplated herein, or (E)
would otherwise be likely to impair materially the ability of the Servicer
to
perform under the terms of this Agreement;
(viii) Neither
this Agreement nor any information, certificate of an officer, statement
furnished in writing or report delivered to the Trustee by the Servicer in
connection with the transactions contemplated hereby contains any untrue
statement of a material fact or omits a material fact necessary to make the
information, certificate, statement or report not misleading;
(ix) The
Servicer will not waive any Prepayment Charge unless it is waived in accordance
with the standard set forth in Section
3.01;
(x) The
Servicer has accurately and fully reported, and will continue to accurately
and
fully report, in accordance with the Fair Credit Reporting Act and its
implementing regulations and Accepted Servicing Practices, accurate and complete
information (e.g., favorable and unfavorable) on its borrower credit files
to
Equifax, Experian and Trans Union Credit Information Company (three of the
credit repositories), on a monthly basis;
(xi) The
Servicer is an approved servicer for FHLMC in good standing and is a HUD
approved mortgagee pursuant to Section 203 of the National Housing Act. No
event
has occurred, including but not limited to a change in insurance coverage,
which
would make the Servicer unable to comply with FHLMC or HUD eligibility
requirements or which would require notification to FHLMC or HUD. The Servicer
has the facilities, procedures, and experienced personnel necessary for the
sound servicing of mortgage loans of the same type as the Mortgage Loans. The
Servicer is duly qualified, licensed, registered and otherwise authorized under
all applicable federal, state and local laws, and regulations, if applicable,
meets the minimum capital requirements set forth by HUD, the OTS, the OCC or
the
FDIC, if applicable, and is in good standing to enforce, originate, sell
mortgage loans to, and service mortgage loans in each jurisdiction wherein
the
Mortgaged Properties are located;
(xii) The
Servicer acknowledges and agrees that the Servicing Fee represents reasonable
compensation for performing such services and that the entire Servicing Fee
shall be treated by the Servicer, for accounting and tax purposes, as
compensation for the servicing and administration of the Mortgage Loans pursuant
to this Agreement; and
(xiii) The
Servicer has complied with all applicable anti-money laundering laws and
regulations, including, without limitation, the USA PATRIOT Act of
2001.
It
is
understood and agreed that the representations, warranties and covenants set
forth in this Section
2.05
shall
survive delivery of the Mortgage Files to the Trustee and shall inure to the
benefit of the Trustee, the Depositor and the Certificateholders. Upon discovery
by any of the Depositor, the Servicer or the Trustee of a breach of any of
the
foregoing representations, warranties and covenants which materially and
adversely affects the value of any Mortgage Loan or the interests therein of
the
Certificateholders, the party discovering such breach shall give prompt written
notice (but in no event later than two Business Days following such discovery)
to the Trustee. Subject to Section
7.01,
unless
such breach shall not be susceptible of cure within 90 days, the obligation
of
the Servicer set forth in this Section
2.05
to cure
breaches shall constitute the sole remedy against the Servicer available to
the
Certificateholders, the Depositor and the Trustee on behalf of the
Certificateholders respecting a breach of the representations, warranties and
covenants contained in this Section
2.05.
Notwithstanding the foregoing, within 90 days of the earlier of discovery by
the
Servicer or receipt of notice by the Servicer of the breach of the
representation or covenant of the Servicer set forth in Section
2.05(ix)
above,
which breach materially and adversely affects the interests of the Holders
of
the Class P Certificates in any Prepayment Charge, the Servicer shall pay the
amount of such waived Prepayment Charge, for the benefit of the Holders of
the
Class P Certificates, by depositing such amount into the Custodial
Account.
SECTION
2.06 Issuance
of the REMIC I Regular Interests and the Class R-I Interest.
The
Trustee acknowledges the assignment to it of the Mortgage Loans and the delivery
to it of the Mortgage Files, subject to the provisions of Section
2.01
and
Section
2.02,
together with the assignment to it of all other assets included in REMIC I,
the
receipt of which is hereby acknowledged. Concurrently with such assignment
and
delivery and in exchange therefor, the Trustee, pursuant to the written request
of the Depositor executed by an officer of the Depositor, has executed,
authenticated and delivered to or upon the order of the Depositor, the Class
R
Certificates (in respect of the Class R-I Interest) in authorized denominations.
The interests evidenced by the Class R-I Interest, together with the REMIC
I
Regular Interests, constitute the entire beneficial ownership interest in REMIC
I. The rights of the Class R-I Interest and REMIC II (as holder of the REMIC
I
Regular Interest) to receive distributions from the proceeds of REMIC I in
respect of the Class R-I Interest and the REMIC I Regular Interests, and all
ownership interests evidenced or constituted by the Class R-I Interest and
the
REMIC I Regular Interests, shall be as set forth in this Agreement.
SECTION
2.07 Conveyance
of the REMIC I Regular Interests; Acceptance of REMIC II by the
Trustee.
The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey to the Trustee, without recourse
all the right, title and interest of the Depositor in and to the REMIC I Regular
Interests for the benefit of the Class R-II Interest and REMIC II (as holder
of
the REMIC I Regular Interests). The Trustee acknowledges receipt of the REMIC
I
Regular Interests and declares that it holds and will hold the same in trust
for
the exclusive use and benefit of all present and future holders of the Class
R-II Interest and REMIC II (as holder of the REMIC I Regular Interests). The
rights of the holders of the Class R-II Interest and REMIC II (as holder of
the
REMIC I Regular Interests) to receive distributions from the proceeds of REMIC
II in respect of the Class R-II Interest and REMIC II Regular Interests,
respectively, and all ownership interests evidenced or constituted by the Class
R-II Interest and the REMIC II Regular Interests, shall be as set forth in
this
Agreement.
SECTION
2.08 Issuance
of Class R Certificates.
The
Trustee acknowledges the assignment to it of the REMIC Regular Interests and,
concurrently therewith and in exchange therefor, pursuant to the written request
of the Depositor executed by an officer of the Depositor, the Trustee has
executed, authenticated and delivered to or upon the order of the Depositor,
the
Class R Certificates in authorized denominations.
ARTICLE
III
ADMINISTRATION
AND SERVICING
OF
THE
MORTGAGE LOANS
SECTION
3.01 Servicer
to Act as Servicer.
The
Servicer shall service and administer the Mortgage Loans on behalf of the Trust
Fund and in the best interests of and for the benefit of the Certificateholders
(as determined by the Servicer in its reasonable judgment) in accordance with
all applicable laws and the terms of this Agreement and the respective Mortgage
Loans and, to the extent consistent with such terms, in the same manner in
which
it services and administers similar mortgage loans for its own portfolio, and
in
accordance with customary and usual standards of practice of mortgage lenders
and loan servicers administering similar mortgage loans but without regard
to:
(i) any
relationship that the Servicer, any Sub-Servicer or any Affiliate of the
Servicer or any Sub-Servicer may have with the related Mortgagor;
(ii) the
ownership or non-ownership of any Certificate by the Servicer or any Affiliate
of the Servicer;
(iii) the
Servicer’s obligation to make Advances or Servicing Advances; or
(iv) the
Servicer’s or any Sub-Servicer’s right to receive compensation for its services
hereunder or with respect to any particular transaction.
To
the
extent consistent with the foregoing, the Servicer (a) shall seek the timely
and
complete recovery of principal and interest on the Mortgage Notes and (b) shall
waive (or permit a Sub-Servicer to waive) a Prepayment Charge only under the
following circumstances: (i) such waiver is standard and customary in servicing
similar Mortgage Loans, relates to a default or a reasonably foreseeable default
and would, in the reasonable judgment of the Servicer, maximize recovery of
total proceeds taking into account the value of such Prepayment Charge and
the
related Mortgage Loan or (ii) such Prepayment Charge is unenforceable in
accordance with applicable law or the collection of such related Prepayment
Charge would otherwise violate applicable law. If a Prepayment Charge is waived
as permitted by meeting the standards described in clause
(ii)
above,
then the Servicer shall enforce the obligation of RFC under the Mortgage Loan
Purchase Agreement to pay the amount of such waived Prepayment Charge, for
the
benefit of the Holders of the Class P Certificates, by depositing such amount
into the Custodial Account together with and at the time that the amount prepaid
on the related Mortgage Loan is required to be deposited into the Custodial
Account. Notwithstanding any other provisions of this Agreement, any payments
made by RFC in respect of any waived Prepayment Charges pursuant to clause
(ii)
above
shall be deemed to be paid outside of the Trust Fund.
Subject
only to the above-described servicing standards and the terms of this Agreement
and of the respective Mortgage Loans, the Servicer shall have full power and
authority, acting alone or through Sub-Servicers as provided in Section
3.02,
to do
or cause to be done any and all things in connection with such servicing and
administration which it may deem necessary or desirable. Without limiting the
generality of the foregoing, the Servicer in its own name or in the name of
a
Sub-Servicer is hereby authorized and empowered by the Trustee when the Servicer
believes it appropriate in its best judgment, for the benefit of the
Certificateholders, in accordance with the servicing standards set forth above,
to execute and deliver, on behalf of the Trust Fund, the Certificateholders
and
the Trustee or any of them, and upon written notice to the Trustee, any and
all
instruments of satisfaction or cancellation, or of partial or full release
or
discharge, and all other comparable instruments, with respect to the Mortgage
Loans and the Mortgaged Properties and to institute foreclosure proceedings
or
obtain a deed-in-lieu of foreclosure so as to convert the ownership of such
properties, and to hold or cause to be held title to such properties, on behalf
of the Trustee and Certificateholders. The Servicer shall service and administer
the Mortgage Loans in accordance with applicable state and federal law and
shall
provide to the Mortgagors any reports required to be provided to them thereby.
The Servicer shall also comply in the performance of this Agreement with all
reasonable rules and requirements of each insurer under any standard hazard
insurance policy. Subject to Section
3.17,
the
Trustee shall execute, at the written request of the Servicer, and furnish
to
the Servicer and any Sub-Servicer any special or limited powers of attorney
and
other documents necessary or appropriate to enable the Servicer or any
Sub-Servicer to carry out their servicing and administrative duties hereunder
and the Trustee shall not be liable for the actions of the Servicer or any
Sub-Servicers under such powers of attorney.
Subject
to Section
3.09
hereof,
in accordance with the standards of the preceding paragraph, the Servicer shall
advance or cause to be advanced funds as necessary for the purpose of effecting
the timely payment of taxes and assessments on the Mortgaged Properties, which
advances shall be Servicing Advances reimbursable in the first instance from
related collections from the Mortgagors pursuant to Section
3.09,
and
further as provided in Section
3.11.
Any
cost incurred by the Servicer or by Sub-Servicers in effecting the timely
payment of taxes and assessments on a Mortgaged Property shall not, for the
purpose of calculating distributions to Certificateholders, be added to the
unpaid principal balance of the related Mortgage Loan, notwithstanding that
the
terms of such Mortgage Loan so permit.
The
Servicer further is authorized and empowered by the Trustee, on behalf of the
Certificateholders and the Trustee, in its own name or in the name of the
Sub-Servicer, when the Servicer or the Sub-Servicer, as the case may be,
believes it is appropriate in its best judgment to register any Mortgage Loan
on
the MERS System, or cause the removal from the registration of any Mortgage
Loan
on the MERS System, to execute and deliver, on behalf of the Trustee and the
Certificateholders or any of them, any and all instruments of assignment and
other comparable instruments with respect to such assignment or re-recording
of
a Mortgage in the name of MERS, solely as nominee for the Trustee and its
successors and assigns. Any reasonable expenses (i) incurred as a result of
MERS
discontinuing or becoming unable to continue operations in connection with
the
MERS System or (ii) if the affected Mortgage Loan is in default or, in the
judgment of the Servicer, such default is reasonably foreseeable, incurred
in
connection with the actions described in the preceding sentence, shall be
subject to withdrawal by the Servicer from the Custodial Account.
Notwithstanding
anything in this Agreement to the contrary, the Servicer may not make any future
advances with respect to a Mortgage Loan (except as provided in Section
4.03)
and the
Servicer shall not (i) permit any modification with respect to any Mortgage
Loan
that would change the Mortgage Rate, reduce or increase the principal balance
(except for reductions resulting from actual payments of principal) or change
the final maturity date on such Mortgage Loan (unless, as provided in
Section
3.07,
the
Mortgagor is in default with respect to the Mortgage Loan or such default is,
in
the judgment of the Servicer, reasonably foreseeable) or (ii) permit any
modification, waiver or amendment of any term of any Mortgage Loan that would
both (A) effect an exchange or reissuance of such Mortgage Loan under Section
1001 of the Code (or Treasury regulations promulgated thereunder) and (B) cause
any Trust REMIC to fail to qualify as a REMIC under the Code or the imposition
of any tax on “prohibited transactions” or “contributions after the startup
date” under the REMIC Provisions.
The
Servicer may delegate its responsibilities under this Agreement; provided,
however,
that no
such delegation shall release the Servicer from the responsibilities or
liabilities arising under this Agreement.
SECTION
3.02 Sub-Servicing
Agreements Between Servicer and Sub-Servicers.
(a)
Subject
to Section
14.01(d),
the
Servicer may enter into Sub-Servicing Agreements with Sub-Servicers for the
servicing and administration of the Mortgage Loans; provided,
however,
that
such agreements would not result in a withdrawal or a downgrading by any Rating
Agency of the rating on any Class of Certificates (it being understood that
the
Servicer shall not be obligated to obtain a specific letter to such effect).
The
Trustee is hereby authorized to acknowledge, at the request of the Servicer,
any
Sub-Servicing Agreement that, based on an Officers’ Certificate of the Servicer
delivered to the Trustee (upon which the Trustee can conclusively rely), meets
the requirements applicable to Sub-Servicing Agreements set forth in this
Agreement and that is otherwise permitted under this Agreement.
Each
Sub-Servicer shall be (i) authorized to transact business in the state or states
where the related Mortgaged Properties it is to service are situated, if and
to
the extent required by applicable law to enable the Sub-Servicer to perform
its
obligations hereunder and under the Sub-Servicing Agreement and (ii) a Xxxxxxx
Mac or Xxxxxx Mae approved mortgage servicer. Each Sub-Servicing Agreement
must
impose on the Sub-Servicer requirements conforming to the provisions set forth
in Section
3.08
and
provide for servicing of the Mortgage Loans consistent with the terms of this
Agreement. The Servicer will examine each Sub-Servicing Agreement and will
be
familiar with the terms thereof. The terms of any Sub-Servicing Agreement will
not be inconsistent with any of the provisions of this Agreement. The Servicer
and the Sub-Servicers may enter into and make amendments to the Sub-Servicing
Agreements or enter into different forms of Sub-Servicing Agreements;
provided,
however,
that
any such amendments or different forms shall be consistent with and not violate
the provisions of this Agreement, and that no such amendment or different form
shall be made or entered into which could be reasonably expected to be
materially adverse to the interests of the Certificateholders without the
consent of the Holders of Certificates entitled to at least 66% of the Voting
Rights; provided, further, that the consent of the Holders of Certificates
entitled to at least 66% of the Voting Rights shall not be required (i) to
cure
any ambiguity or defect in a Sub-Servicing Agreement, (ii) to correct, modify
or
supplement any provisions of a Sub-Servicing Agreement, or (iii) to make any
other provisions with respect to matters or questions arising under a
Sub-Servicing Agreement, which, in each case, shall not be inconsistent with
the
provisions of this Agreement. Any variation without the consent of the Holders
of Certificates entitled to at least 66% of the Voting Rights from the
provisions set forth in Section
3.08
relating
to insurance or priority requirements of Sub-Servicing Accounts, or credits
and
charges to the Sub-Servicing Accounts or the timing and amount of remittances
by
the Sub-Servicers to the Servicer, are conclusively deemed to be inconsistent
with this Agreement and therefore prohibited. The Servicer shall deliver to
the
Trustee, upon its request, copies of all Sub-Servicing Agreements, and any
amendments or modifications thereof, promptly upon the Servicer’s execution and
delivery of such instruments.
(b) As
part
of its servicing activities hereunder, the Servicer, for the benefit of the
Trustee and the Certificateholders, shall enforce the obligations of each
Sub-Servicer under the related Sub-Servicing Agreement, including, without
limitation, any obligation of a Sub-Servicer to make advances in respect of
delinquent payments as required by a Sub-Servicing Agreement, or to purchase
a
Mortgage Loan on account of missing or defective documentation or on account
of
a breach of a representation, warranty or covenant, as described in Section
2.03(a). Such enforcement, including, without limitation, the legal prosecution
of claims, termination of Sub-Servicing Agreements, and the pursuit of other
appropriate remedies, shall be in such form and carried out to such an extent
and at such time as the Servicer, in its good faith business judgment, would
require were it the owner of the related Mortgage Loans. The Servicer shall
pay
the costs of enforcing the obligations of a Sub-Servicer at its own expense,
and
shall be reimbursed therefor only (i) from a general recovery resulting from
such enforcement, to the extent, if any, that such recovery exceeds all amounts
due in respect of the related Mortgage Loans, or (ii) from a specific recovery
of costs, expenses or attorneys’ fees against the party against whom such
enforcement is directed.
SECTION
3.03 Successor
Sub-Servicers.
The
Servicer shall be entitled to terminate any Sub-Servicing Agreement and the
rights and obligations of any Sub-Servicer pursuant to any Sub-Servicing
Agreement in accordance with the terms and conditions of such Sub-Servicing
Agreement. In the event of termination of any Sub-Servicer, all servicing
obligations of such Sub-Servicer shall be assumed simultaneously by the Servicer
without any act or deed on the part of such Sub-Servicer or the Servicer, and
the Servicer either shall service directly the related Mortgage Loans or shall
enter into a Sub-Servicing Agreement with a successor Sub-Servicer which
qualifies under Section
3.02.
Any
Sub-Servicing Agreement shall include the provision that such agreement may
be
immediately terminated by the Trustee (if the Trustee is acting as Servicer)
without fee, in accordance with the terms of this Agreement, in the event that
the Servicer (or the Trustee, if it is then acting as Servicer) shall, for
any
reason, no longer be the Servicer (including termination due to a Servicer
Event
of Default).
SECTION
3.04 Liability
of the Servicer.
Notwithstanding any Sub-Servicing Agreement or the provisions of this Agreement
relating to agreements or arrangements between the Servicer and a Sub-Servicer
or reference to actions taken through a Sub-Servicer or otherwise, the Servicer
shall remain obligated and primarily liable to the Trustee and the
Certificateholders for the servicing and administering of the Mortgage Loans
in
accordance with the provisions of Section
3.01
without
diminution of such obligation or liability by virtue of such Sub-Servicing
Agreements or arrangements or by virtue of indemnification from the Sub-Servicer
and to the same extent and under the same terms and conditions as if the
Servicer alone were servicing and administering the Mortgage Loans. The Servicer
shall be entitled to enter into any agreement with a Sub-Servicer for
indemnification of the Servicer by such Sub-Servicer and nothing contained
in
this Agreement shall be deemed to limit or modify such
indemnification.
SECTION
3.05 No
Contractual Relationship Between Sub-Servicers, the Trustee or the
Certificateholders.
Any
Sub-Servicing Agreement that may be entered into and any other transactions
or
services relating to the Mortgage Loans involving a Sub-Servicer in its capacity
as such shall be deemed to be between the Sub-Servicer and the Servicer alone,
and the Trustee and the Certificateholders shall not be deemed parties thereto
and shall have no claims, rights, obligations, duties or liabilities with
respect to the Sub-Servicer except as set forth in Section
3.06.
The
Servicer shall be solely liable for all fees owed by it to any Sub-Servicer,
irrespective of whether the Servicer’s compensation pursuant to this Agreement
is sufficient to pay such fees. The foregoing provision shall not in any way
limit a Sub-Servicer’s obligation to cure an omission or defect.
SECTION
3.06 Assumption
or Termination of Sub-Servicing Agreements by the Trustee.
In the
event the Servicer shall for any reason no longer be the Servicer (including
by
reason of the occurrence of a Servicer Event of Default), the Trustee, its
designee or other successor Servicer shall thereupon assume all of the rights
and obligations of the Servicer under each Sub-Servicing Agreement that the
Servicer may have entered into, unless the Trustee, such designee or other
successor Servicer elects to terminate any Sub-Servicing Agreement in accordance
with its terms as provided in Section
3.03.
Upon
such assumption, the Trustee, its designee or the successor Servicer for the
Trustee appointed pursuant to Section
7.02
shall be
deemed, subject to Section
3.03,
to have
assumed all of the Servicer’s interest therein and to have replaced the Servicer
as a party to each Sub-Servicing Agreement to the same extent as if each
Sub-Servicing Agreement had been assigned to the assuming party, except that
(i)
the Servicer shall not thereby be relieved of any liability or obligations
under
any Sub-Servicing Agreement that arose before it ceased to be the Servicer
and
(ii) none of the Trustee, its designee or any successor Servicer shall be deemed
to have assumed any liability or obligation of the Servicer that arose before
it
ceased to be the Servicer.
The
Servicer at its expense shall, upon request of the Trustee, deliver to the
assuming party all documents and records relating to each Sub-Servicing
Agreement and the Mortgage Loans then being serviced and an accounting of
amounts collected and held by or on behalf of it, and otherwise use its best
efforts to effect the orderly and efficient transfer of each Sub-Servicing
Agreement to the assuming party.
The
Servicing Fee payable to the Trustee as successor Servicer or other successor
Servicer shall be payable from payments received on the Mortgage Loans in the
amount and in the manner set forth in this Agreement.
SECTION
3.07 Collection
of Certain Mortgage Loan Payments.
The
Servicer shall make reasonable efforts to collect all payments called for under
the terms and provisions of the Mortgage Loans, and shall, to the extent such
procedures shall be consistent with this Agreement and the terms and provisions
of any applicable insurance policies, follow such collection procedures as
it
would follow with respect to mortgage loans comparable to the Mortgage Loans
and
held for its own account. Consistent with the foregoing, the Servicer may in
its
discretion (i) waive any late payment charge or, if applicable, any penalty
interest, or (ii) extend the due dates for the Monthly Payments due on a
Mortgage Note for a period of not greater than 180 days; provided,
however,
that
any extension pursuant to clause
(ii)
above
shall not affect the amortization schedule of any Mortgage Loan for purposes
of
any computation hereunder, except as provided below. In the event of any such
arrangement pursuant to clause
(ii)
above,
the Servicer shall make timely advances on such Mortgage Loan during such
extension pursuant to Section
4.03
and in
accordance with the amortization schedule of such Mortgage Loan without
modification thereof by reason of such arrangement. Notwithstanding the
foregoing, in the event that any Mortgage Loan is in default or, in the judgment
of the Servicer, such default is reasonably foreseeable, the Servicer,
consistent with the standards set forth in Section
3.01,
may
also waive, modify or vary any term of such Mortgage Loan (including
modifications that would change the Mortgage Rate, forgive the payment of
principal or interest, capitalize past due Monthly Payments and outstanding
Servicing Advances or extend the final maturity date of such Mortgage Loan),
accept payment from the related Mortgagor of an amount less than the Stated
Principal Balance in final satisfaction of such Mortgage Loan (such payment,
a
“Short
Pay-off”),
or
consent to the postponement of strict compliance with any such term or otherwise
grant indulgence to any Mortgagor (any and all such waivers, modifications,
variances, forgiveness of principal or interest, postponements, or indulgences
collectively referred to herein as “forbearance”), provided,
however,
that in
no event shall the Servicer grant any such forbearance (other than as permitted
by the second sentence of this Section) with respect to any one Mortgage Loan
more than once in any 12 month period or more than three times over the life
of
such Mortgage Loan. The Servicer’s analysis supporting any forbearance and the
conclusion that any forbearance meets the standards of Section 3.01 shall be
reflected in writing in the Mortgage File.
SECTION
3.08 Sub-Servicing
Accounts.
In
those cases where a Sub-Servicer is servicing a Mortgage Loan pursuant to a
Sub-Servicing Agreement, the Sub-Servicer will be required to establish and
maintain one or more accounts (collectively, the “Sub-Servicing
Account”).
The
Sub-Servicing Account shall be an Eligible Account and shall comply with all
requirements of this Agreement relating to the Custodial Account. The
Sub-Servicer shall deposit in the clearing account in which it customarily
deposits payments and collections on mortgage loans in connection with its
mortgage loan servicing activities on a daily basis, and in no event more than
one Business Day after the Sub-Servicer’s receipt thereof, all proceeds of
Mortgage Loans received by the Sub-Servicer less its servicing compensation
to
the extent permitted by the Sub-Servicing Agreement, and shall thereafter
deposit such amounts in the Sub-Servicing Account, in no event more than two
Business Days after the receipt of such amounts. The Sub-Servicer shall
thereafter deposit such proceeds in the Custodial Account or remit such proceeds
to the Servicer for deposit in the Custodial Account not later than two Business
Days after the deposit of such amounts in the Sub-Servicing Account. For
purposes of this Agreement, the Servicer shall be deemed to have received
payments on the Mortgage Loans when the Sub-Servicer receives such
payments.
SECTION
3.09 Collection
of Taxes, Assessments and Similar Items; Servicing Accounts.
On or
before the second Distribution Date, the Servicer shall establish and maintain,
or cause to be established and maintained, one or more accounts (the
“Servicing
Accounts”),
into
which all collections from the Mortgagors (or related advances from
Sub-Servicers) for the payment of taxes, assessments, hazard insurance premiums
and comparable items for the account of the Mortgagors (“Escrow
Payments”)
shall
be deposited and retained. Servicing Accounts shall be Eligible Accounts. The
Servicer shall deposit in the clearing account in which it customarily deposits
payments and collections on mortgage loans in connection with its mortgage
loan
servicing activities on a daily basis, and in no event more than one Business
Day after the Servicer’s receipt thereof, all Escrow Payments collected on
account of the Mortgage Loans and shall thereafter deposit such Escrow Payments
in the Servicing Accounts, in no event more than two Business Days after the
receipt of such Escrow Payments, all Escrow Payments collected on account of
the
Mortgage Loans for the purpose of effecting the timely payment of any such
items
as required under the terms of this Agreement. Withdrawals of amounts from
a
Servicing Account may be made only to (i) effect payment of taxes, assessments,
hazard insurance premiums, and comparable items in a manner and at a time that
assures that the lien priority of the Mortgage is not jeopardized (or, with
respect to the payment of taxes, in a manner and at a time that avoids the
loss
of the Mortgaged Property due to a tax sale or the foreclosure as a result
of a
tax lien); (ii) reimburse the Servicer (or a Sub-Servicer to the extent provided
in the related Sub-Servicing Agreement) out of related collections for any
advances made pursuant to Section
3.01
(with
respect to taxes and assessments) and Section
3.14
(with
respect to hazard insurance); (iii) refund to Mortgagors any sums as may be
determined to be overages; (iv) pay interest, if required and as described
below, to Mortgagors on balances in the Servicing Account; or (v) clear and
terminate the Servicing Account at the termination of the Servicer’s obligations
and responsibilities in respect of the Mortgage Loans under this Agreement
in
accordance with Article
IX.
In the
event the Servicer shall deposit in a Servicing Account any amount not required
to be deposited therein, it may at any time withdraw such amount from such
Servicing Account, any provision herein to the contrary notwithstanding. The
Servicer will be responsible for the administration of the Servicing Accounts
and will be obligated to make Servicing Advances to such accounts when and
as
necessary to avoid the lapse of insurance coverage on the Mortgaged Property,
or
which the Servicer knows, or in the exercise of the required standard of care
of
the Servicer hereunder should know, is necessary to avoid the loss of the
Mortgaged Property due to a tax sale or the foreclosure as a result of a tax
lien. If any such payment has not been made and the Servicer receives notice
of
a tax lien that jeopardizes the lien of the Mortgage Loan, the Servicer will,
within 10 business days of such notice, advance or cause to be advanced funds
necessary to discharge such lien on the Mortgaged Property. As part of its
servicing duties, the Servicer or Sub-Servicers shall pay to the Mortgagors
interest on funds in the Servicing Accounts, to the extent required by law
and,
to the extent that interest earned on funds in the Servicing Accounts is
insufficient, to pay such interest from its or their own funds, without any
reimbursement therefor. The Servicer may pay to itself any excess interest
on
funds in the Servicing Accounts, to the extent such action is in conformity
with
the Servicing Standard, is permitted by law and such amounts are not required
to
be paid to Mortgagors or used for any of the other purposes set forth
above.
SECTION
3.10 Custodial
Account and Certificate Account.
(a)
On or
before the second Distribution Date, on behalf of the Trust Fund, the Servicer
shall establish and maintain, or cause to be established and maintained, one
or
more accounts (such account or accounts, the “Custodial
Account”),
held
in trust for the benefit of the Trustee and the Certificateholders. On behalf
of
the Trust Fund, the Servicer shall deposit or cause to be deposited in the
clearing account in which it customarily deposits payments and collections
on
mortgage loans in connection with its mortgage loan servicing activities on
a
daily basis, and in no event more than one Business Day after the Servicer’s
receipt thereof, and shall thereafter deposit in the Custodial Account, in
no
event more than two Business Days after the Servicer’s receipt thereof, as and
when received or as otherwise required hereunder, the following payments and
collections received or made by it subsequent to the Cut-off Date (other than
in
respect of principal or interest on the related Mortgage Loans due on or before
the Cut-off Date), or payments (other than Principal Prepayments) received
by it
on or prior to the Cut-off Date but allocable to a Due Period subsequent
thereto:
(i) all
payments on account of principal, including Principal Prepayments (but not
Prepayment Charges), on the Mortgage Loans;
(ii) all
payments on account of interest (net of the related Servicing Fee) on each
Mortgage Loan;
(iii) all
Insurance Proceeds, Liquidation Proceeds (other than proceeds collected in
respect of any particular REO Property and amounts paid in connection with
a
purchase of Mortgage Loans and REO Properties pursuant to Section
9.01)
and
Subsequent Recoveries;
(iv) any
amounts required to be deposited pursuant to Section
3.12
in
connection with any losses realized on Permitted Investments with respect to
funds held in the Custodial Account;
(v) any
amounts required to be deposited by the Servicer pursuant to the second
paragraph of Section
3.14(a)
in
respect of any blanket policy deductibles;
(vi) all
proceeds of any Mortgage Loan repurchased or purchased in accordance with
Section
2.03,
Section
3.16
or
Section
9.01;
(vii) all
amounts required to be deposited in connection with shortfalls in principal
amount of Qualified Substitute Mortgage Loans pursuant to Section
2.03;
and
(viii) all
Prepayment Charges collected by the Servicer and any Servicer Prepayment Charge
Payment Amounts in connection with the Principal Prepayment of any of the
Mortgage Loans.
The
foregoing requirements for deposit in the Custodial Account shall be exclusive,
it being understood and agreed that, without limiting the generality of the
foregoing, payments in the nature of Servicing Fees, late payment charges,
assumption fees, insufficient funds charges and ancillary income (other than
Prepayment Charges) need not be deposited by the Servicer in the Custodial
Account and may be retained by the Servicer as additional compensation. In
the
event the Servicer shall deposit in the Custodial Account any amount not
required to be deposited therein, it may at any time withdraw such amount from
the Custodial Account, any provision herein to the contrary
notwithstanding.
(b) On
behalf
of the Trust Fund, the Trustee shall establish and maintain one or more accounts
(such account or accounts, the “Certificate
Account”),
held
in trust for the benefit of the Trustee, the Trust Fund and the
Certificateholders. On behalf of the Trust Fund, the Servicer shall deliver
to
the Trustee in immediately available funds for deposit in the Certificate
Account by 1:00 p.m. New York time (i) on the Servicer Remittance Date, that
portion of the Available Distribution Amount (calculated without regard to
the
references in clause
(2)
of the
definition thereof to amounts that may be withdrawn from the Certificate
Account) for the related Distribution Date then on deposit in the Custodial
Account and the amount of all Prepayment Charges collected during the applicable
Prepayment Period by the Servicer and Servicer Prepayment Charge Payment Amounts
in connection with the Principal Prepayment of any of the Mortgage Loans then
on
deposit in the Custodial Account and the amount of any funds reimbursable to
an
Advancing Person pursuant to Section
3.26
and (ii)
on each Business Day as of the commencement of which the balance on deposit
in
the Custodial Account exceeds $75,000 following any withdrawals pursuant to
the
next succeeding sentence, the amount of such excess, but only if the Custodial
Account constitutes an Eligible Account solely pursuant to clause
(ii)
of the
definition of “Eligible Account.” If the balance on deposit in the Custodial
Account exceeds $75,000 as of the commencement of business on any Business
Day
and the Custodial Account constitutes an Eligible Account solely pursuant to
clause
(ii)
of the
definition of “Eligible Account,” the Servicer shall, on or before 1:00 p.m. New
York time on such Business Day, withdraw from the Custodial Account any and
all
amounts payable or reimbursable to the Depositor, the Servicer, the Trustee,
RFC, the Seller or any Sub-Servicer pursuant to Section
3.11
and
shall pay such amounts to the Persons entitled thereto.
(c) Funds
in
the Custodial Account and the Certificate Account may be invested in Permitted
Investments in accordance with the provisions set forth in Section
3.12.
The
Servicer shall give notice to the Trustee of the location of the Custodial
Account maintained by it when established and prior to any change thereof.
The
Trustee shall give notice to the Servicer and the Depositor of the location
of
the Certificate Account when established and prior to any change
thereof.
(d) Funds
held in the Custodial Account at any time may be delivered by the Servicer
to
the Trustee for deposit in an account (which may be the Certificate Account
and
must satisfy the standards for the Certificate Account as set forth in the
definition thereof) and for all purposes of this Agreement shall be deemed
to be
a part of the Custodial Account (and in such event, the Servicer shall provide
the Trustee with written instructions regarding the investment of such funds);
provided,
however,
that
the Trustee shall have the sole authority to withdraw any funds held pursuant
to
this subsection
(d).
In the
event the Servicer shall deliver to the Trustee for deposit in the Certificate
Account any amount not required to be deposited therein, it may at any time
request in writing that the Trustee withdraw such amount from the Certificate
Account and remit to it any such amount, any provision herein to the contrary
notwithstanding. In no event shall the Trustee incur liability as a result
of
withdrawals from the Certificate Account at the direction of the Servicer in
accordance with the immediately preceding sentence. In addition, the Servicer
shall deliver to the Trustee from time to time for deposit, and the Trustee
shall so deposit, in the Certificate Account:
(i) any
Advances, as required pursuant to Section
4.03;
(ii) any
amounts required to be deposited pursuant to Section
3.23(d)
or
(f)
in
connection with any REO Property;
(iii) any
amounts to be paid in connection with a purchase of Mortgage Loans and REO
Properties pursuant to Section
9.01;
and
(iv) any
Compensating Interest required to be deposited pursuant to Section
3.24
in
connection with any Prepayment Interest Shortfall.
(e) The
Servicer shall deposit in the Custodial Account any amounts required to be
deposited pursuant to Section
3.12(b)
in
connection with losses realized on Permitted Investments with respect to funds
held in the Custodial Account (and the Certificate Account to the extent that
funds therein are deemed to be part of the Custodial Account).
SECTION
3.11 Withdrawals
from the Custodial Account and Certificate Account.
(a)
The
Servicer shall, from time to time, make withdrawals from the Custodial Account
for any of the following purposes or as described in Section
4.03:
(i) to
remit
to the Trustee for deposit in the Certificate Account the amounts required
to be
so remitted pursuant to Section
3.10(b)
or
permitted to be so remitted pursuant to the first sentence of Section
3.10(d);
(ii) subject
to Section
3.16(d),
to
reimburse the Servicer for (a) any unreimbursed Advances to the extent of
amounts received which represent Late Collections (net of the related Servicing
Fees) of Monthly Payments, Liquidation Proceeds and Insurance Proceeds on
Mortgage Loans with respect to which such Advances were made in accordance
with
the provisions of Section
4.03;
(b) any
unreimbursed Advances with respect to the final liquidation of a Mortgage Loan
that are Nonrecoverable Advances, but only to the extent that Late Collections,
Liquidation Proceeds and Insurance Proceeds received with respect to such
Mortgage Loan are insufficient to reimburse the Servicer for such unreimbursed
Advances; or (c) subject to Section
4.03(b),
any
unreimbursed Advances to the extent of funds held in the Custodial Account
for
future distribution that were not included in Available Funds for the preceding
Distribution Date;
(iii) subject
to Section
3.16(d),
to pay
the Servicer or any Sub-Servicer, as applicable, (a) any unpaid Servicing Fees,
(b) any unreimbursed Servicing Advances with respect to each Mortgage Loan,
but
only to the extent of any Late Collections, Liquidation Proceeds, Insurance
Proceeds and Subsequent Recoveries received with respect to such Mortgage Loan,
and (c) any Servicing Advances with respect to the final liquidation of a
Mortgage Loan that are Nonrecoverable Advances, but only to the extent that
Late
Collections, Liquidation Proceeds and Insurance Proceeds received with respect
to such Mortgage Loan are insufficient to reimburse the Servicer or any
Sub-Servicer for Servicing Advances;
(iv) to
pay to
the Servicer as servicing compensation (in addition to the Servicing Fee) on
the
Servicer Remittance Date any interest or investment income earned on funds
deposited in the Custodial Account;
(v) to
pay to
the Servicer, the Depositor, RFC or the Seller, as the case may be, with respect
to each Mortgage Loan that has previously been purchased or replaced pursuant
to
Section
2.03
or
Section
3.16(c)
all
amounts received thereon subsequent to the date of purchase or substitution,
as
the case may be;
(vi) to
reimburse the Servicer for any Advance or Servicing Advance previously made
which the Servicer has determined to be a Nonrecoverable Advance in accordance
with the provisions of Section
4.03;
(vii) to
pay,
or to reimburse the Servicer for Servicing Advances in respect of, expenses
incurred in connection with any Mortgage Loan pursuant to Section
3.16(b);
(viii) to
reimburse the Servicer or the Depositor for expenses incurred by or reimbursable
to the Servicer or the Depositor, as the case may be, pursuant to Section
3.02(b)
and
Section
6.03;
(ix) to
reimburse the Servicer (if the Servicer is not an Affiliate of RFC) or the
Trustee, as the case may be, for enforcement expenses reasonably incurred in
respect of the breach or defect giving rise to the purchase obligation under
Section
2.03
of this
Agreement that were included in the Purchase Price of the Mortgage Loan,
including any expenses arising out of the enforcement of the purchase
obligation;
(x) [reserved];
and
(xi) to
clear
and terminate the Custodial Account pursuant to Section
9.01.
The
foregoing requirements for withdrawal from the Custodial Account shall be
exclusive. In the event the Servicer shall deposit in the Custodial Account
any
amount not required to be deposited therein, it may at any time withdraw such
amount from the Custodial Account, any provision herein to the contrary
notwithstanding.
The
Servicer shall keep and maintain separate accounting, on a Mortgage Loan by
Mortgage Loan basis, for the purpose of justifying any withdrawal from the
Custodial Account, to the extent held by or on behalf of it, pursuant to
subclauses
(ii),
(iii),
(iv),
(v),
(vi),
(vii)
and
(viii)
above.
The Servicer shall provide written notification to the Trustee, on or prior
to
the next succeeding Servicer Remittance Date, upon making any withdrawals from
the Custodial Account pursuant to subclause
(vi)
above;
provided that an Officers’ Certificate in the form described under Section
4.03(d)
shall
suffice for such written notification to the Trustee in respect of subclause
(vi)
hereof.
(b) The
Trustee shall, from time to time, make withdrawals from the Certificate Account,
for any of the following purposes, without priority:
(i) to
make
distributions to Certificateholders in accordance with Section
4.01;
(ii) to
pay to
itself amounts to which it is entitled pursuant to Section
8.05
or for
Extraordinary Trust Fund Expenses;
(iii) to
reimburse itself pursuant to Section
7.02;
(iv) to
pay
any amounts in respect of taxes pursuant to Section
10.01(g)(iii);
(v) to
pay to
an Advancing Person reimbursements for Advances and/or Servicing Advances
pursuant to Section
3.26;
and
(vi) to
clear
and terminate the Certificate Account pursuant to Section
9.01.
SECTION
3.12 Investment
of Funds in the Custodial Account and the Certificate Account.
(a)
The
Servicer may direct any depository institution maintaining the Custodial Account
and any REO Account to invest the funds on deposit in such accounts (each such
account, for the purposes of this Section
3.12
an
“Investment
Account”)
in one
or more Permitted Investments bearing interest or sold at a discount, and
maturing, unless payable on demand, (i) no later than the Business Day
immediately preceding the date on which such funds are required to be withdrawn
from such account pursuant to this Agreement, if a Person other than the Trustee
is the obligor thereon, and (ii) no later than the date on which such funds
are
required to be withdrawn from such account pursuant to this Agreement, if the
Trustee is the obligor thereon. Amounts in the Certificate Account shall be
held
uninvested. All such Permitted Investments shall be held to maturity, unless
payable on demand. Any investment of funds in an Investment Account shall be
made in the name of the Trustee for the benefit of the Certificateholders.
The
Trustee shall be entitled to sole possession (except with respect to investment
direction of funds held in the Custodial Account or any REO Account and any
income and gain realized thereon) over each such investment, and any certificate
or other instrument evidencing any such investment shall be delivered directly
to the Trustee or its agent, together with any document of transfer necessary
to
transfer title to such investment to the Trustee or its nominee. In the event
amounts on deposit in an Investment Account are at any time invested in a
Permitted Investment payable on demand, the party with investment discretion
over such Investment Account shall:
(x) consistent
with any notice required to be given thereunder, demand that payment thereon
be
made on the last day such Permitted Investment may otherwise mature hereunder
in
an amount equal to the lesser of (1) all amounts then payable thereunder and
(2)
the amount required to be withdrawn on such date; and
(y) demand
payment of all amounts due thereunder promptly upon determination by a
Responsible Officer of the Trustee that such Permitted Investment would not
constitute a Permitted Investment in respect of funds thereafter on deposit
in
the Investment Account.
(b) All
income and gain realized from the investment of funds deposited in the Custodial
Account and any REO Account held by or on behalf of the Servicer, shall be
for
the benefit of the Servicer and shall be subject to its withdrawal in accordance
with Section
3.11
or
Section
3.23,
as
applicable. The Servicer shall deposit in the Custodial Account or any REO
Account, as applicable, the amount of any loss of principal incurred in respect
of any such Permitted Investment made with funds in such accounts immediately
upon realization of such loss.
(c) Except
as
otherwise expressly provided in this Agreement, if any default occurs in the
making of a payment due under any Permitted Investment, or if a default occurs
in any other performance required under any Permitted Investment (of which
a
Responsible Officer of the Trustee obtains actual knowledge), the Trustee may
and, subject to Section
8.01
and
Section
8.02(v),
upon
the request of the Holders of Certificates representing more than 50% of the
Voting Rights allocated to any Class of Certificates, shall take such action
as
may be appropriate to enforce such payment or performance, including the
institution and prosecution of appropriate proceedings.
(d) The
Trustee or its Affiliates are permitted to receive additional compensation
that
could be deemed to be in the Trustee’s economic self-interest for (i) serving as
investment adviser, administrator, shareholder servicing agent, custodian or
sub-custodian with respect to certain of the Permitted Investments and (ii)
effecting or using Affiliates to effect transactions in certain Permitted
Investments. Such compensation shall not be considered an amount that is
reimbursable or payable to the Trustee pursuant to Section
3.11
or
3.12
or
otherwise payable in respect of Extraordinary Trust Fund Expenses.
SECTION
3.13 [Reserved].
SECTION
3.14 Maintenance
of Hazard Insurance and Errors and Omissions and Fidelity
Coverage.
(a)
The
Servicer shall cause to be maintained for each Mortgage Loan hazard insurance
with extended coverage on the related Mortgaged Property in an amount which
is
at least equal to the lesser of the current principal balance of such Mortgage
Loan and the amount necessary to fully compensate for any damage or loss to
the
improvements that are a part of such property on a replacement cost basis,
in
each case in an amount not less than such amount as is necessary to avoid the
application of any coinsurance clause contained in the related hazard insurance
policy. The Servicer shall also cause to be maintained fire insurance with
extended coverage on each REO Property in an amount which is at least equal
to
the lesser of (i) the maximum insurable value of the improvements which are
a
part of such property and (ii) the outstanding principal balance of the related
Mortgage Loan at the time it became an REO Property. The Servicer will comply
in
the performance of this Agreement with all reasonable rules and requirements
of
each insurer under any such hazard policies. Any amounts to be collected by
the
Servicer under any such policies (other than amounts to be applied to the
restoration or repair of the property subject to the related Mortgage or amounts
to be released to the Mortgagor in accordance with the procedures that the
Servicer would follow in servicing loans held for its own account, subject
to
the terms and conditions of the related Mortgage and Mortgage Note) shall be
deposited in the Custodial Account, subject to withdrawal pursuant to
Section
3.11,
if
received in respect of a Mortgage Loan, or in the REO Account, subject to
withdrawal pursuant to Section
3.23,
if
received in respect of an REO Property. Any cost incurred by the Servicer in
maintaining any such insurance shall not, for the purpose of calculating
distributions to Certificateholders, be added to the unpaid principal balance
of
the related Mortgage Loan, notwithstanding that the terms of such Mortgage
Loan
so permit. It is understood and agreed that no earthquake or other additional
insurance is to be required of any Mortgagor other than pursuant to such
applicable laws and regulations as shall at any time be in force and as shall
require such additional insurance. If the Mortgaged Property or REO Property
is
at any time in an area identified in the Federal Register by the Federal
Emergency Management Agency as having special flood hazards and flood insurance
has been made available, the Servicer will cause to be maintained a flood
insurance policy in respect thereof. Such flood insurance shall be in an amount
equal to the lesser of (i) the unpaid principal balance of the related Mortgage
Loan and (ii) the maximum amount of such insurance available for the related
Mortgaged Property under the national flood insurance program (assuming that
the
area in which such Mortgaged Property is located is participating in such
program).
In
the
event that the Servicer shall obtain and maintain a blanket policy with an
insurer having a General Policy Rating of A:X or better in Best’s Key Rating
Guide (or such other rating that is comparable to such rating) insuring against
hazard losses on all of the Mortgage Loans, it shall conclusively be deemed
to
have satisfied its obligations as set forth in the first two sentences of this
Section
3.14,
it
being understood and agreed that such policy may contain a deductible clause,
in
which case the Servicer shall, in the event that there shall not have been
maintained on the related Mortgaged Property or REO Property a policy complying
with the first two sentences of this Section
3.14,
and
there shall have been one or more losses which would have been covered by such
policy, deposit to the Custodial Account from its own funds the amount not
otherwise payable under the blanket policy because of such deductible clause.
In
connection with its activities as administrator and servicer of the Mortgage
Loans, the Servicer agrees to prepare and present, on behalf of itself, the
Trustee and Certificateholders, claims under any such blanket policy in a timely
fashion in accordance with the terms of such policy.
(b) The
Servicer shall keep in force during the term of this Agreement a policy or
policies of insurance covering errors and omissions for failure in the
performance of the Servicer’s obligations under this Agreement, which policy or
policies shall be in such form and amount that would meet the requirements
of
Xxxxxx Xxx or Xxxxxxx Mac if it were the purchaser of the Mortgage Loans. The
Servicer shall also maintain a fidelity bond in the form and amount that would
meet the requirements of Xxxxxx Mae or Xxxxxxx Mac. The Servicer shall be deemed
to have complied with this provision if an Affiliate of the Servicer has such
errors and omissions and fidelity bond coverage and, by the terms of such
insurance policy or fidelity bond, the coverage afforded thereunder extends
to
the Servicer. Any such errors and omissions policy and fidelity bond shall
by
its terms not be cancelable without thirty days prior written notice to the
Trustee. The Servicer shall also cause each Sub-Servicer to maintain a policy
of
insurance covering errors and omissions and a fidelity bond which would meet
such requirements.
SECTION
3.15 Enforcement
of Due-On-Sale Clauses; Assumption Agreements.
The
Servicer will, to the extent it has knowledge of any conveyance or prospective
conveyance of any Mortgaged Property by any Mortgagor (whether by absolute
conveyance or by contract of sale, and whether or not the Mortgagor remains
or
is to remain liable under the Mortgage Note and/or the Mortgage), exercise
its
rights to accelerate the maturity of such Mortgage Loan under the “due-on-sale”
clause, if any, applicable thereto; provided,
however,
that
the Servicer shall not be required to take such action if in its sole business
judgment the Servicer believes it is not in the best interests of the Trust
Fund
and shall not exercise any such rights if prohibited by law from doing so.
If
the Servicer reasonably believes it is unable under applicable law to enforce
such “due-on-sale” clause, or if any of the other conditions set forth in the
proviso to the preceding sentence apply, the Servicer will enter into an
assumption and modification agreement from or with the person to whom such
property has been conveyed or is proposed to be conveyed, pursuant to which
such
person becomes liable under the Mortgage Note and, to the extent permitted
by
applicable state law, the Mortgagor remains liable thereon. The Servicer is
also
authorized to enter into a substitution of liability agreement with such person,
pursuant to which the original Mortgagor is released from liability and such
person is substituted as the Mortgagor and becomes liable under the Mortgage
Note, provided that no such substitution shall be effective unless such person
satisfies the underwriting criteria of RFC and has a credit risk rating at
least
equal to that of the original Mortgagor. In connection with any assumption
or
substitution, the Servicer shall apply RFC’s underwriting standards and follow
such practices and procedures as shall be normal and usual in its general
mortgage servicing activities and as it applies to other mortgage loans owned
solely by it. The Servicer shall not take or enter into any assumption and
modification agreement, however, unless (to the extent practicable in the
circumstances) it shall have received confirmation, in writing, of the continued
effectiveness of any applicable hazard insurance policy. Any fee collected
by
the Servicer in respect of an assumption, modification or substitution of
liability agreement shall be retained by the Servicer as additional servicing
compensation. In connection with any such assumption, no material term of the
Mortgage Note (including but not limited to the related Mortgage Rate and the
amount of the Monthly Payment) may be amended or modified, except as otherwise
required pursuant to the terms thereof. The Servicer shall notify the Trustee
that any such substitution, modification or assumption agreement has been
completed by forwarding to the Trustee the executed original of such
substitution, modification or assumption agreement, which document shall be
added to the related Mortgage File and shall, for all purposes, be considered
a
part of such Mortgage File to the same extent as all other documents and
instruments constituting a part thereof.
Notwithstanding
the foregoing paragraph or any other provision of this Agreement, the Servicer
shall not be deemed to be in default, breach or any other violation of its
obligations hereunder by reason of any assumption of a Mortgage Loan by
operation of law or by the terms of the Mortgage Note or any assumption which
the Servicer may be restricted by law from preventing, for any reason whatever.
For purposes of this Section
3.15,
the
term “assumption” is deemed to also include a sale (of the Mortgaged Property)
subject to the Mortgage that is not accompanied by an assumption or substitution
of liability agreement.
SECTION
3.16 Realization
Upon Defaulted Mortgage Loans.
(a)
The
Servicer shall exercise its discretion, consistent with customary servicing
procedures and the terms of this Agreement, with respect to the enforcement
and
servicing of defaulted Mortgage Loans in such manner as will maximize the
receipt of principal and interest with respect thereto, including, but not
limited to, the modification of such Mortgage Loan, or foreclosure upon the
related Mortgaged Property and disposition thereof.
In
furtherance of the foregoing, the Servicer shall use its best efforts,
consistent with Accepted Servicing Practices, to foreclose upon or otherwise
comparably convert the ownership of properties securing such of the Mortgage
Loans as come into and continue in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments pursuant to
Section
3.07.
The
Servicer shall be responsible for all costs and expenses incurred by it in
any
such proceedings; provided,
however,
that
such costs and expenses will be recoverable as Servicing Advances by the
Servicer as contemplated in Section
3.11
and
Section
3.23.
The
foregoing is subject to the provision that, in any case in which Mortgaged
Property shall have suffered damage from an Uninsured Cause, the Servicer shall
not be required to expend its own funds toward the restoration of such property
unless it shall determine in its discretion that such restoration will increase
the proceeds of liquidation of the related Mortgage Loan after reimbursement
to
itself for such expenses.
(b) Notwithstanding
the foregoing provisions of this Section
3.16
or any
other provision of this Agreement, with respect to any Mortgage Loan as to
which
the Servicer has received actual notice of, or has actual knowledge of, the
presence of any toxic or hazardous substance on the related Mortgaged Property,
the Servicer shall not, on behalf of the Trust Fund either (i) obtain title
to
such Mortgaged Property as a result of or in lieu of foreclosure or otherwise,
or (ii) otherwise acquire possession of, or take any other action with respect
to, such Mortgaged Property, if, as a result of any such action, the Trustee,
the Trust Fund or the Certificateholders would be considered to hold title
to,
to be a “mortgagee-in-possession” of, or to be an “owner” or “operator” of such
Mortgaged Property within the meaning of the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended from time to time,
or any comparable law, unless the Servicer has also previously determined,
based
on its reasonable judgment and a report prepared by an Independent Person who
regularly conducts environmental audits using customary industry standards,
that:
(1) such
Mortgaged Property is in compliance with applicable environmental laws or,
if
not, that it would be in the best economic interest of the Trust Fund to take
such actions as are necessary to bring the Mortgaged Property into compliance
therewith; and
(2) there
are
no circumstances present at such Mortgaged Property relating to the use,
management or disposal of any hazardous substances, hazardous materials,
hazardous wastes, or petroleum-based materials for which investigation, testing,
monitoring, containment, clean-up or remediation could be required under any
federal, state or local law or regulation, or that if any such materials are
present for which such action could be required, that it would be in the best
economic interest of the Trust Fund to take such actions with respect to the
affected Mortgaged Property.
The
cost
of the environmental audit report contemplated by this Section
3.16
shall be
advanced by the Servicer, subject to the Servicer’s right to be reimbursed
therefor from the Custodial Account as provided in Section
3.11(a)(iii)
and
(a)(vi),
such
right of reimbursement being prior to the rights of Certificateholders to
receive any amount in the Custodial Account received in respect of the affected
Mortgage Loan or other Mortgage Loans.
If
the
Servicer determines, as described above, that it is in the best economic
interest of the Trust Fund to take such actions as are necessary to bring any
such Mortgaged Property into compliance with applicable environmental laws,
or
to take such action with respect to the containment, clean-up or remediation
of
hazardous substances, hazardous materials, hazardous wastes or petroleum-based
materials affecting any such Mortgaged Property, then the Servicer shall take
such action as it deems to be in the best economic interest of the Trust Fund;
provided that any amounts disbursed by the Servicer pursuant to this
Section
3.16(b)
shall
constitute Servicing Advances, subject to Section
4.03(d).
The
cost of any such compliance, containment, cleanup or remediation shall be
advanced by the Servicer, subject to the Servicer’s right to be reimbursed
therefor from the Custodial Account as provided in Section
3.11(a)(iii)
and
(a)(vi),
such
right of reimbursement being prior to the rights of Certificateholders to
receive any amount in the Custodial Account received in respect of the affected
Mortgage Loan or other Mortgage Loans.
(c) [Reserved].
(d) Proceeds
received in connection with any Final Recovery Determination, as well as any
recovery resulting from a partial collection of Insurance Proceeds, Liquidation
Proceeds or Subsequent Recoveries, in respect of any Mortgage Loan, will be
applied in the following order of priority: first,
to
unpaid Servicing Fees; second,
to
reimburse the Servicer or any Sub-Servicer for any related unreimbursed
Servicing Advances pursuant to Section 3.11(a)(iii) and Advances pursuant to
Section 3.11(a)(ii); third,
to
accrued and unpaid interest on the Mortgage Loan, to the date of the Final
Recovery Determination, or to the Due Date prior to the Distribution Date on
which such amounts are to be distributed if not in connection with a Final
Recovery Determination; and fourth,
as a
recovery of principal of the Mortgage Loan. The portion of the recovery so
allocated to unpaid Servicing Fees shall be reimbursed to the Servicer or any
Sub-Servicer pursuant to Section 3.11(a)(iii).
SECTION
3.17 Trustee
to Cooperate; Release of Mortgage Files.
(a)
Upon the
payment in full of any Mortgage Loan, or upon the receipt by the Servicer of
a
notification that payment in full shall be escrowed in a manner customary for
such purposes, the Servicer shall immediately notify or cause to be notified
the
Trustee by a certification in the form of Exhibit
E
or such
form mutually agreed upon by the Servicer and the Trustee (which certification
shall include a statement to the effect that all amounts received or to be
received in connection with such payment which are required to be deposited
in
the Custodial Account pursuant to Section
3.10
have
been or will be so deposited) of a Servicing Officer and shall request delivery
to it of the Mortgage File. Upon receipt of such certification and request,
the
Trustee shall, within three Business Days, release the related Mortgage File
to
the Servicer at no cost to the Trustee or the Trust Fund, and the Servicer
is
authorized to cause the removal from the registration on the MERS® System of any
such Mortgage, if applicable. No expenses incurred in connection with any
instrument of satisfaction or deed of reconveyance shall be chargeable to the
Custodial Account or the Certificate Account.
(b) From
time
to time and as appropriate for the servicing or foreclosure of any Mortgage
Loan, including, for this purpose, collection under any insurance policy
relating to the Mortgage Loans, the Trustee shall, upon any request made by
or
on behalf of the Servicer and delivery to the Trustee of a Request for Release
in the form of Exhibit
E
or such
form mutually agreed upon by the Servicer and the Trustee, release the related
Mortgage File to the Servicer within three Business Days, and the Trustee shall,
at the direction of the Servicer, execute such documents as shall be necessary
to the prosecution of any such proceedings. Such Request for Release shall
obligate the Servicer to return each and every document previously requested
from the Mortgage File to the Trustee when the need therefor by the Servicer
no
longer exists, unless (i) the Mortgage Loan has been liquidated and the
Liquidation Proceeds relating to the Mortgage Loan have been deposited in the
Custodial Account or (ii) the Mortgage File or such document has been delivered
to an attorney, or to a public trustee or other public official as required
by
law, for purposes of initiating or pursuing legal action or other proceedings
for the foreclosure of the Mortgaged Property either judicially or
non-judicially, and the Servicer has delivered, or caused to be delivered,
to
the Trustee an additional Request for Release certifying as to such liquidation
or action or proceedings. Upon the request of the Trustee, the Servicer shall
provide notice to the Trustee of the name and address of the Person to which
such Mortgage File or such document was delivered and the purpose or purposes
of
such delivery. Upon receipt of a certificate of a Servicing Officer stating
that
such Mortgage Loan was liquidated and that all amounts received or to be
received in connection with such liquidation that are required to be deposited
into the Custodial Account have been so deposited, or that such Mortgage Loan
has become an REO Property, any outstanding Requests for Release with respect
to
such Mortgage Loan shall be released by the Trustee to the Servicer or its
designee.
(c) Upon
written certification of a Servicing Officer, the Trustee shall execute and
deliver to the Servicer or the Sub-Servicer, as the case may be, any court
pleadings, requests for trustee’s sale or other documents necessary to the
foreclosure or trustee’s sale in respect of a Mortgaged Property or to any legal
action brought to obtain judgment against any Mortgagor on the Mortgage Note
or
Mortgage or to obtain a deficiency judgment, or to enforce any other remedies
or
rights provided by the Mortgage Note or Mortgage or otherwise available at
law
or in equity. Each such certification shall include a request that such
pleadings or documents be executed by the Trustee and a statement as to the
reason such documents or pleadings are required and that the execution and
delivery thereof by the Trustee will not invalidate or otherwise affect the
lien
of the Mortgage, except for the termination of such a lien upon completion
of
the foreclosure or trustee’s sale.
SECTION
3.18 Servicing
Compensation.
As
compensation for the activities of the Servicer hereunder, the Servicer shall
be
entitled to the Servicing Fee with respect to each Mortgage Loan payable solely
from payments of interest in respect of such Mortgage Loan, subject to
Section
3.24.
In
addition, the Servicer shall be entitled to recover unpaid Servicing Fees out
of
Insurance Proceeds, Liquidation Proceeds or Subsequent Recoveries to the extent
permitted by Section
3.11(a)(iii)
and out
of amounts derived from the operation and sale of an REO Property to the extent
permitted by Section
3.23.
Except
as provided in Section
3.26,
the
right to receive the Servicing Fee may not be transferred in whole or in part
except in connection with the transfer of all of the Servicer’s responsibilities
and obligations under this Agreement; provided,
however,
that
the Servicer may pay from the Servicing Fee any amounts due to a Sub-Servicer
pursuant to a Sub-Servicing Agreement entered into under Section
3.02.
Additional
servicing compensation in the form of assumption fees, late payment charges,
insufficient funds charges, ancillary income or otherwise (subject to
Section
3.24
and
other than Prepayment Charges) shall be retained by the Servicer only to the
extent such fees or charges are received by the Servicer. The Servicer shall
also be entitled pursuant to Section
3.11(a)(iv)
to
withdraw from the Custodial Account and pursuant to Section
3.23(b)
to
withdraw from any REO Account, as additional servicing compensation, interest
or
other income earned on deposits therein, subject to Section
3.12
and
Section
3.24.
The
Servicer shall be required to pay all expenses incurred by it in connection
with
its servicing activities hereunder (including premiums for the insurance
required by Section
3.14,
to the
extent such premiums are not paid by the related Mortgagors or by a Sub-Servicer
or reimbursable as Servicing Advances, servicing compensation of each
Sub-Servicer, and to the extent provided herein in Section
8.05,
the
expenses of the Trustee) and shall not be entitled to reimbursement therefor
except as specifically provided herein.
SECTION
3.19 Reports
to the Trustee and Others; Custodial Account Statements.
Not
later than twenty days after each Distribution Date, the Servicer shall forward
to the Trustee (upon the Trustee’s request) and the Depositor the most current
available bank statement for the Custodial Account. Copies of such statement
shall be provided by the Trustee to any Certificateholder and to any Person
identified to the Trustee as a prospective transferee of a Certificate, upon
request at the expense of the requesting party, provided such statement is
delivered by the Servicer to the Trustee.
SECTION
3.20 [Reserved].
SECTION
3.21 [Reserved].
SECTION
3.22 Access
to Certain Documentation.
The
Servicer shall provide to the Office of Thrift Supervision, the FDIC, and any
other federal or state banking or insurance regulatory authority that may
exercise authority over any Certificateholder or Certificate Owner, access
to
the documentation in the Servicer’s possession regarding the Mortgage Loans
required by applicable laws and regulations. Such access shall be afforded
without charge, but only upon reasonable request and during normal business
hours at the offices of the Servicer designated by it. In addition, access
to
the documentation in the Servicer’s possession regarding the Mortgage Loans will
be provided to any Certificateholder or Certificate Owner, the Trustee and
to
any Person identified to the Servicer as a prospective transferee of a
Certificate; provided,
however,
that
providing access to such Person will not violate any applicable laws, upon
reasonable request during normal business hours at the offices of the Servicer
designated by it at the expense of the Person requesting such
access.
SECTION
3.23 Title,
Management and Disposition of REO Property.
(a)
The deed
or certificate of sale of any REO Property shall be taken in the name of the
Trustee, or its nominee, on behalf of the Trust Fund and for the benefit of
the
Certificateholders. The Servicer, on behalf of REMIC I, shall either sell any
REO Property prior to the end of the third taxable year after REMIC I acquires
ownership of such REO Property for purposes of Section 860G(a)(8) of the Code
or
request from the Internal Revenue Service, no later than 60 days before the
day
on which the three-year grace period would otherwise expire, an extension of
the
three-year grace period, unless the Servicer shall have delivered to the Trustee
an Opinion of Counsel, addressed to the Trustee and the Depositor, to the effect
that the holding by REMIC I of such REO Property subsequent to three years
after
its acquisition will not result in the imposition on any Trust REMIC of taxes
on
“prohibited transactions” thereof, as defined in Section 860F of the Code, or
cause any Trust REMIC to fail to qualify as a REMIC under Federal law at any
time that any Certificates are outstanding. The Servicer shall manage, conserve,
protect and operate each REO Property for the Certificateholders solely for
the
purpose of its prompt disposition and sale in a manner which does not cause
such
REO Property to fail to qualify as “foreclosure property” within the meaning of
Section 860G(a)(8) of the Code or result in the receipt by any Trust REMIC
of
any “income from non-permitted assets” within the meaning of Section
860F(a)(2)(B) of the Code, or any “net income from foreclosure property” which
is subject to taxation under the REMIC Provisions.
(b) The
Servicer shall segregate and hold all funds collected and received in connection
with the operation of any REO Property separate and apart from its own funds
and
general assets and shall establish and maintain, or cause to be established
and
maintained, with respect to REO Properties, an account held in trust for the
Trustee for the benefit of the Certificateholders (the “REO
Account”),
which
shall be an Eligible Account. The Servicer shall be permitted to allow the
Custodial Account to serve as the REO Account, subject to separate ledgers
for
each REO Property. The Servicer shall be entitled to retain or withdraw any
interest income paid on funds deposited in the REO Account.
(c) The
Servicer shall have the sole discretion to determine whether an immediate sale
of an REO Property or continued management of such REO Property is in the best
interests of the Certificateholders. In furtherance of the foregoing, the
Servicer shall have full power and authority, subject only to the specific
requirements and prohibitions of this Agreement, to do any and all things in
connection with any REO Property as are consistent with the manner in which
the
Servicer manages and operates similar property owned by the Servicer or any
of
its Affiliates, all on such terms and for such period as the Servicer deems
to
be in the best interests of Certificateholders. In connection therewith, the
Servicer shall deposit, or cause to be deposited in the clearing account in
which it customarily deposits payments and collections on mortgage loans in
connection with its mortgage loan servicing activities on a daily basis, and
in
no event more than one Business Day after the Servicer’s receipt thereof, and
shall thereafter deposit in the REO Account, in no event more than two Business
Days after the Servicer’s receipt thereof, all revenues received by it with
respect to an REO Property and shall withdraw therefrom funds necessary for
the
proper operation, management and maintenance of such REO Property including,
without limitation:
(i) all
insurance premiums due and payable in respect of such REO Property;
(ii) all
real
estate taxes and assessments in respect of such REO Property that may result
in
the imposition of a lien thereon; and
(iii) all
costs
and expenses necessary to maintain such REO Property.
To
the
extent that amounts on deposit in the REO Account with respect to an REO
Property are insufficient for the purposes set forth in clauses
(i)
through
(iii)
above
with respect to such REO Property, the Servicer shall advance from its own
funds
such amount as is necessary for such purposes if, but only if, the Servicer
would make such advances if the Servicer owned the REO Property and if in the
Servicer’s judgment, the payment of such amounts will be recoverable from the
rental or sale of the REO Property.
Notwithstanding
the foregoing, the Servicer shall not and the Trustee shall not knowingly
authorize the Servicer to:
(i) authorize
the Trust Fund to enter into, renew or extend any New Lease with respect to
any
REO Property, if the New Lease by its terms will give rise to any income that
does not constitute Rents from Real Property;
(ii) authorize
any amount to be received or accrued under any New Lease other than amounts
that
will constitute Rents from Real Property;
(iii) authorize
any construction on any REO Property, other than the completion of a building
or
other improvement thereon, and then only if more than ten percent of the
construction of such building or other improvement was completed before default
on the related Mortgage Loan became imminent, all within the meaning of Section
856(e)(4)(B) of the Code; or
(iv) authorize
any Person to Directly Operate any REO Property on any date more than 90 days
after its date of acquisition by the Trust Fund;
unless,
in any such case, the Servicer has obtained an Opinion of Counsel, provided
to
the Servicer and the Trustee, to the effect that such action will not cause
such
REO Property to fail to qualify as “foreclosure property” within the meaning of
Section 860G(a)(8) of the Code at any time that it is held by REMIC I, in which
case the Servicer may take such actions as are specified in such Opinion of
Counsel.
The
Servicer may contract with any Independent Contractor for the operation and
management of any REO Property, provided that:
(i) the
terms
and conditions of any such contract shall not be inconsistent
herewith;
(ii) any
such
contract shall require, or shall be administered to require, that the
Independent Contractor pay all costs and expenses incurred in connection with
the operation and management of such REO Property, including those listed above
and remit all related revenues (net of such costs and expenses) to the Servicer
as soon as practicable, but in no event later than thirty days following the
receipt thereof by such Independent Contractor;
(iii) none
of
the provisions of this Section
3.23(c)
relating
to any such contract or to actions taken through any such Independent Contractor
shall be deemed to relieve the Servicer of any of its duties and obligations
to
the Trustee on behalf of the Certificateholders with respect to the operation
and management of any such REO Property; and
(iv) the
Servicer shall be obligated with respect thereto to the same extent as if it
alone were performing all duties and obligations in connection with the
operation and management of such REO Property.
The
Servicer shall be entitled to enter into any agreement with any Independent
Contractor performing services for it related to its duties and obligations
hereunder for indemnification of the Servicer by such Independent Contractor,
and nothing in this Agreement shall be deemed to limit or modify such
indemnification. The Servicer shall be solely liable for all fees owed by it
to
any such Independent Contractor, irrespective of whether the Servicer’s
compensation pursuant to Section
3.18
is
sufficient to pay such fees; provided,
however,
that to
the extent that any payments made by such Independent Contractor would
constitute Servicing Advances if made by the Servicer, such amounts shall be
reimbursable as Servicing Advances made by the Servicer.
(d) In
addition to the withdrawals permitted under Section
3.23(c),
the
Servicer may from time to time make withdrawals from the REO Account for any
REO
Property: (i) to pay itself or any Sub-Servicer unpaid Servicing Fees in respect
of the related Mortgage Loan; and (ii) to reimburse itself or any Sub-Servicer
for unreimbursed Servicing Advances and Advances made in respect of such REO
Property or the related Mortgage Loan. On the Servicer Remittance Date, the
Servicer shall withdraw from each REO Account maintained by it and deposit
into
the Certificate Account in accordance with Section
3.10(d)(ii),
for
distribution on the related Distribution Date in accordance with Section
4.01,
the
income from the related REO Property received during the prior calendar month,
net of any withdrawals made pursuant to Section
3.23(c)
or this
Section
3.23(d).
(e) Subject
to the time constraints set forth in Section
3.23(a),
each
REO Disposition shall be carried out by the Servicer at such price and upon
such
terms and conditions as the Servicer shall deem necessary or advisable, as
shall
be normal and usual in its Accepted Servicing Practices.
(f) The
proceeds from the REO Disposition, net of any amount required by law to be
remitted to the Mortgagor under the related Mortgage Loan and net of any payment
or reimbursement to the Servicer or any Sub-Servicer as provided above, shall
be
deposited in the Certificate Account in accordance with Section
3.10(d)(ii)
on the
Servicer Remittance Date in the month following the receipt thereof for
distribution on the related Distribution Date in accordance with Section
4.01.
Any REO
Disposition shall be for cash only (unless changes in the REMIC Provisions
made
subsequent to the Startup Day allow a sale for other
consideration).
(g) The
Servicer shall file information returns with respect to the receipt of mortgage
interest received in a trade or business, reports of foreclosures and
abandonments of any Mortgaged Property and cancellation of indebtedness income
with respect to any Mortgaged Property as required by Sections 6050H, 6050J
and
6050P of the Code, respectively. Such reports shall be in form and substance
sufficient to meet the reporting requirements imposed by such Sections 6050H,
6050J and 6050P of the Code.
SECTION
3.24 Obligations
of the Servicer in Respect of Prepayment Interest Shortfalls.
Not
later than 1:00 p.m. New York time on each Servicer Remittance Date, the
Servicer shall remit to the Certificate Account an amount (“Compensating
Interest”)
equal
to the lesser of (A) the aggregate of the Prepayment Interest Shortfalls for
the
related Distribution Date resulting from Principal Prepayment in full or in
part
during the related Due Period and (B) its aggregate Servicing Fee received
in
the related Due Period and any interest or investment income earned on funds
deposited in the Custodial Account. The Servicer shall not have the right to
reimbursement for any amounts remitted to the Trustee in respect of Compensating
Interest. Such amounts so remitted shall be included in the Available
Distribution Amount and distributed therewith on the next Distribution Date.
The
Servicer shall not be obligated to pay Compensating Interest with respect to
Relief Act Interest Shortfall.
SECTION
3.25 Obligations
of the Servicer in Respect of Mortgage Rates and Monthly
Payments.
In the
event that a shortfall in any collection on or liability with respect to any
Mortgage Loan results from or is attributable to adjustments to Mortgage Rates,
Monthly Payments or Stated Principal Balances that were made by the Servicer
in
a manner not consistent with the terms of the related Mortgage Note applicable
laws, regulations and rulings and this Agreement, the Servicer, upon discovery
or receipt of notice thereof, shall immediately deliver to the Trustee for
deposit in the Certificate Account from its own funds the amount of any such
shortfall and shall indemnify and hold harmless the Trust Fund, the Trustee, the
Depositor and any successor Servicer in respect of any such liability. Such
indemnities shall survive the termination or discharge of this Agreement.
Notwithstanding the foregoing, this Section
3.25
shall
not limit the ability of the Servicer to seek recovery of any such amounts
from
the related Mortgagor under the terms of the related Mortgage Note, as permitted
by law.
SECTION
3.26 Advance
Facility.
(a)
The
Servicer is hereby authorized to enter into a financing or other facility (any
such arrangement an “Advance
Facility”)
with
any Person which provides that such Person (an “Advancing
Person”)
may
fund Advances and/or Servicing Advances to the Trust Fund under this Agreement,
although no such facility shall reduce or otherwise affect the Servicer’s
obligation to fund such Advances and/or Servicing Advances. If the Servicer
enters into such an Advance Facility pursuant to this Section
3.26,
upon
reasonable request of the Advancing Person, the Trustee shall execute a letter
of acknowledgment, confirming its receipt of notice of the existence of such
Advance Facility. To the extent that an Advancing Person funds any Advance
or
any Servicing Advance and the Servicer provides the Trustee with an Officers’
Certificate that such Advancing Person is entitled to reimbursement, such
Advancing Person shall be entitled to receive reimbursement pursuant to this
Agreement for such amount to the extent provided in Section
3.26(b).
Such
Officers’ Certificate must specify the amount of the reimbursement, the Section
of this Agreement that permits the applicable Advance or Servicing Advance
to be
reimbursed and the section(s) of the Advance Facility that entitle the Advancing
Person to request reimbursement from the Trustee, rather than the Servicer
or
proof of an event of default under the Advance Facility. The Trustee shall
have
no duty or liability with respect to any calculation of any reimbursement to
be
paid to an Advancing Person and shall be entitled to rely without independent
investigation on the Advancing Person’s notice provided pursuant to this
Section
3.26.
The
Trustee shall have no responsibility to track or monitor the administration
of
the Advance Facility. An Advancing Person whose obligations hereunder are
limited to the funding of Advances and/or Servicing Advances shall not be
required to meet the qualifications of the Servicer or a Sub-Servicer pursuant
to Section
3.02
hereof
and will not be deemed to be a Sub-Servicer under this Agreement.
(b) If
an
advancing facility is entered into, then the Servicer shall not be permitted
to
reimburse itself therefor under Section
3.11(a)(ii),
Section
3.11(a)(iii)
and
Section
3.11(a)(vi)
prior to
the remittance to the Trust Fund, but instead the Servicer shall remit such
amounts in accordance with the documentation establishing the Advance Facility
to such Advancing Person or to a trustee, agent or custodian (an “Advance
Facility Trustee”)
designated by such Advancing Person. The Trustee is hereby authorized to pay
to
the Advancing Person, reimbursements for Advances and Servicing Advances from
the Certificate Account to the same extent the Servicer would have been
permitted to reimburse itself for such Advances and/or Servicing Advances in
accordance with Section
3.11(a)(ii),
Section
3.11(a)(iii)
and
Section
3.11(a)(vi),
as the
case may be, had the Servicer itself funded such Advance or Servicing Advance.
The Trustee is hereby authorized to pay directly to the Advancing Person such
portion of the Servicing Fee as the parties to any advancing facility agree
in
writing.
(c) All
Advances and Servicing Advances made pursuant to the terms of this Agreement
shall be deemed made and shall be reimbursed on a “first in-first out” (FIFO)
basis.
(d) Any
amendment to this Section
3.26
or to
any other provision of this Agreement that may be necessary or appropriate
to
effect the terms of an Advance Facility as described generally in this
Section
3.26,
including amendments to add provisions relating to a successor Servicer, may
be
entered into by the Trustee and the Servicer without the consent of any
Certificateholder, notwithstanding anything to the contrary in this Agreement;
provided,
however,
such
amendment shall otherwise comply with Section
13.01
hereof.
All costs and expenses (including attorneys’ fees) of each party hereto related
to such amendment shall be borne by the Servicer without reimbursement from
the
Trust Fund.
SECTION
3.27 Net
WAC Rate Carryover Reserve Account.
(a)
No later
than the Closing Date, the Trustee shall establish and maintain with itself,
a
separate, segregated trust account (the “Net WAC Rate Carryover Reserve
Account”) titled, “Net WAC Rate Carryover Reserve Account, Xxxxx Fargo Bank,
N.A., as Trustee, in trust for the registered holders of Xxxxxxxxxx Mortgage
Loan Trust, Series 2006-RFC1, Asset-Backed Pass-Through Certificates.” On the
Business Day prior to each Distribution Date, the Trustee will deposit any
amounts received under the Cap Contracts into the Net WAC Carryover Reserve
Account. All amounts deposited in the Net WAC Rate Carryover Reserve Account
shall be distributed to the Holders of the Class A Certificates and the
Mezzanine Certificates in the manner set forth in Section
4.01(a)(4).
(b) On
each
Distribution Date as to which there is a Net WAC Rate Carryover Amount payable
to the Class A Certificates or the Mezzanine Certificates, the Trustee has
been
directed by the Class CE Certificateholders to, and therefore will, deposit
into
the Net WAC Rate Carryover Reserve Account the amounts described in Section 4.01(a)(4),
rather
than distributing such amounts to the Class CE Certificateholders. On each
such
Distribution Date, the Trustee shall hold all such amounts for the benefit
of
the Holders of the Class A Certificates and the Mezzanine Certificates, and
will
distribute such amounts to the Holders of the Class A Certificates and the
Mezzanine Certificates in the amounts and priorities set forth in Section
4.01(a)(4).
(c) For
federal and state income tax purposes, the Class CE Certificateholders will
be
deemed to be the owners of the Net WAC Rate Carryover Reserve Account and
amounts deposited into the Net WAC Rate Carryover Reserve Account (other than
amounts paid on the Cap Contracts) shall be treated as amounts distributed
by
REMIC II to the Holders of the Class CE Certificates. Upon the termination
of
the Trust Fund, or the payment in full of the Class A Certificates and the
Mezzanine Certificates, all amounts remaining on deposit in the Net WAC Rate
Carryover Reserve Account will be released by the Trust Fund and distributed
to
the Class CE Certificateholders or their designees. The Net WAC Rate Carryover
Reserve Account will be part of the Trust Fund but not part of any REMIC and
any
payments to the Holders of the Class A Certificates or the Mezzanine
Certificates of Net WAC Rate Carryover Amounts will not be payments with respect
to a “regular interest” in a REMIC within the meaning of Code Section
860(G)(a)(1).
(d) By
accepting a Class CE Certificate, each Class CE Certificateholder hereby agrees
to direct the Trustee, and the Trustee hereby is directed, to deposit into
the
Net WAC Rate Carryover Reserve Account the amounts described above on each
Distribution Date as to which there is any Net WAC Rate Carryover Amount rather
than distributing such amounts to the Class CE Certificateholders. By accepting
a Class CE Certificate, each Class CE Certificateholder further agrees that
such
direction is given for good and valuable consideration, the receipt and
sufficiency of which is acknowledged by such acceptance.
(e) Amounts
on deposit in the Net WAC Rate Carryover Reserve Account shall remain
uninvested.
(f) For
federal tax return and information reporting, the right of the Holders of the
Class A Certificates and the Mezzanine Certificates to receive payments from
the
Net WAC Rate Carryover Reserve Account in respect of any Net WAC Rate Carryover
Amount each shall be assigned a de minimis value.
SECTION
3.28 Solicitations.
From
and after the Closing Date, the Servicer agrees that it will not take any action
or permit or cause any action to be taken by any of its agents and Affiliates,
or by any independent contractors or independent mortgage brokerage companies
on
the Servicer’s behalf, to personally, by telephone, mail or electronic mail,
solicit the Mortgagor under any Mortgage Loan for the purpose of refinancing
such Mortgage Loan; provided,
that
the Servicer may solicit any Mortgagor for whom the Servicer has received a
request for verification of mortgage, a request for demand for payoff, a
mortgagor initiated written or verbal communication indicating a desire to
prepay the related Mortgage Loan, another mortgage company has pulled a credit
report on the mortgagor or the mortgagor initiates a title search; provided
further, it is understood and agreed that promotions undertaken by the Servicer
or any of its Affiliates which (i) concern optional insurance products or other
additional products or (ii) are directed to the general public at large,
including, without limitation, mass mailings based on commercially acquired
mailing lists, newspaper, radio and television advertisements shall not
constitute solicitation under this Section, nor is the Servicer prohibited
from
responding to unsolicited requests or inquiries made by a Mortgagor or an agent
of a Mortgagor. Furthermore, the Servicer shall be permitted to include in
its
monthly statements to borrowers or otherwise, statements regarding the
availability of the Servicer’s counseling services with respect to refinancing
mortgage loans.
ARTICLE
IV
PAYMENTS
TO CERTIFICATEHOLDERS
SECTION
4.01 Distributions.
(a)
(1) On
each Distribution Date, the following amounts, in the following order of
priority, shall be distributed by REMIC I to REMIC II on account of the REMIC
I
Regular Interests or withdrawn from the Certificate Account and distributed
to
the holders of the Class R-I Interest, as the case may be:
(i) first,
to
Holders of REMIC I Regular Interest I-LTAA, REMIC I Regular Interest I-LTA1,
REMIC I Regular Interest I-LTA2, REMIC I Regular Interest I-LTA3, REMIC I
Regular Interest I-LTA4, REMIC I Regular Interest I-LTM1, REMIC I Regular
Interest I-LTM2, REMIC I Regular Interest I-LTM3, REMIC I Regular Interest
I-LTM4, REMIC I Regular Interest I-LTM5, REMIC I Regular Interest I-LTM6, REMIC
I Regular Interest I-LTM7, REMIC I Regular Interest I-LTM8, REMIC I Regular
Interest I-LTM9, REMIC I Regular Interest I-LTM10 and REMIC I Regular Interest
I-LTZZ, in an amount equal to (A) the Uncertificated Interest for such
Distribution Date, plus
(B) any
amounts in respect thereof remaining unpaid from previous Distribution Dates.
Amounts payable as Uncertificated Interest in respect of REMIC I Regular
Interest I-LTZZ shall be reduced when the sum of the REMIC I Overcollateralized
Amount is less than the REMIC I Required Overcollateralized Amount, by the
lesser of (x) the amount of such difference and (y) the Maximum I-LTZZ
Uncertificated Interest Deferral Amount and such amounts will be payable to
the
Holders of REMIC I Regular Interest I-LTA1, REMIC I Regular Interest I-LTA2,
REMIC I Regular Interest I-LTA3, REMIC I Regular Interest I-LTA4, REMIC I
Regular Interest I-LTM1, REMIC I Regular Interest I-LTM2, REMIC I Regular
Interest I-LTM3, REMIC I Regular Interest I-LTM4, REMIC I Regular Interest
I-LTM5, REMIC I Regular Interest I-LTM6, REMIC I Regular Interest I-LTM7, REMIC
I Regular Interest I-LTM8, REMIC I Regular Interest I-LTM9, REMIC Regular
Interest I-LTM10 in the same proportion as the Overcollateralization Increase
Amount is allocated to the Corresponding Certificates and the Uncertificated
Balance of REMIC I Regular Interest I-LTZZ shall be increased by such
amount;
(ii) second,
to the Holders of REMIC I Regular Interests, in an amount equal to the remainder
of the Available Distribution Amount for such Distribution Date after the
distributions made pursuant to clause
(i)
above,
allocated as follows:
(a) 98.00%
of such
remainder (less the amount payable in clause
(e)
below),
to the Holders of REMIC I Regular Interest I-LTAA, until the Uncertificated
Balance of such REMIC I Regular Interest is reduced to zero;
2%
of
such remainder, first to the Holders of REMIC I Regular Interest I-LTA1, REMIC
I
Regular Interest I-LTA2, REMIC I Regular Interest I-LTA3, REMIC I Regular
Interest I-LTA4, REMIC I Regular Interest I-LTM1, REMIC I Regular Interest
I-LTM2, REMIC I Regular Interest I-LTM3, REMIC I Regular Interest I-LTM4, REMIC
I Regular Interest I-LTM5, REMIC I Regular Interest I-LTM6, REMIC I Regular
Interest I-LTM7, REMIC I Regular Interest I-LTM8, REMIC I Regular Interest
I-LTM9, REMIC Regular Interest I-LTM10, 1.00% of and in the same proportion
as
principal payments are allocated to the Corresponding Certificates, until the
Uncertificated Balances of such REMIC I Regular Interests are reduced to zero;
and second, to the Holders of REMIC I Regular Interest I-LTZZ, (less the amount
payable in clause
(c)
below),
until the Uncertificated Balance of such REMIC I Regular Interest is reduced
to
zero; then
(b) to
the
Holders of REMIC I Regular Interest I-LTP, on the Distribution Date immediately
following the expiration of the latest Prepayment Charge as identified on the
Prepayment Charge Schedule or any Distribution Date thereafter until $100 has
been distributed pursuant to this clause; and
(c) any
remaining amount to the Holders of the Class R Certificates (as Holder of the
Class R-I Interest);
provided,
however,
that
98.00% and 2.00% of any principal payments that are attributable to an
Overcollateralization Reduction Amount shall be allocated to Holders of REMIC
I
Regular Interest I-LTAA and REMIC I Regular Interest I-LTZZ,
respectively.
(2) On
each
Distribution Date, the Trustee shall withdraw from the Certificate Account
an
amount equal to the Interest Remittance Amount and distribute to the
Certificateholders the following amounts, in the following order of
priority:
(i) to
the
Holders of each Class of the Class A Certificates, on a pro
rata
basis
based on the entitlement of each such Class, an amount equal to the Senior
Interest Distribution Amount allocable to such Class of the Class A
Certificates; and
(ii) sequentially,
to the Holders of the Class M-1 Certificates, Class M-2 Certificates, Class
M-3
Certificates, Class M-4 Certificates, Class M-5 Certificates, Class M-6
Certificates, Class M-7 Certificates, Class M-8 Certificates, Class M-9
Certificates and Class M-10 Certificates, in that order, an amount equal to
the
Interest Distribution Amount allocable to each such Class.
(3) On
each
Distribution Date occurring prior to the Credit Support Depletion Date, the
Trustee shall withdraw from the Certificate Account an amount equal to the
Principal Distribution Amount and distribute to the Certificateholders the
following amounts, in the following order of priority:
(A) On
each
such Distribution Date (a) prior to the Stepdown Date or (b) on which a Trigger
Event is in effect, the Principal Distribution Amount shall be distributed
in
the following order of priority:
(i) sequentially,
to the holders of the Class A-1 Certificates, Class A-2 Certificates, Class
A-3
Certificates and Class A-4 Certificates, in that order, until the aggregate
Certificate Principal Balance of the Class A Certificates have been reduced
to
zero; and
(ii) sequentially,
to the holders of the Class M-1 Certificates, Class M-2 Certificates, Class
M-3
Certificates, Class M-4 Certificates, Class M-5 Certificates, Class M-6
Certificates, Class M-7 Certificates, Class M-8 Certificates, Class M-9
Certificates and Class M-10 Certificates, in that order, until the Certificate
Principal Balance of each such Class has been reduced to zero.
(B) On
each
such Distribution Date (a) on or after the Stepdown Date and (b) on which a
Trigger Event is not in effect, the Principal Distribution Amount shall be
distributed in the following order of priority:
(i) sequentially,
to the holders of the Class A-1 Certificates, Class A-2 Certificates, Class
A-3
Certificates and Class A-4 Certificates, in that order, up to an amount equal
to
the Class A Principal Distribution Amount, until the aggregate Certificate
Principal Balances of the Class A Certificates have been reduced to zero;
and
(ii) sequentially,
to the Holders of the Class M-1 Certificates, Class M-2 Certificates, Class
M-3
Certificates, Class M-4 Certificates, Class M-5 Certificates, Class M-6
Certificates, Class M-7 Certificates, Class M-8 Certificates, Class M-9
Certificates and Class M-10 Certificates, in that order, up to an amount equal
to the related Class M Principal Distribution Amount until the Certificate
Principal Balances of each such class has been reduced to zero.
On
or
after the occurrence of the Credit Support Depletion Date, all priorities
relating to distributions as described in Section 4.01(a)(3) of this Agreement
in respect of principal among the Class A Certificates will be disregarded,
and
the Principal Distribution Amount will be distributed to the remaining Class
A
Certificates on a pro-rata
basis in
accordance with their respective outstanding Certificate Principal
Balances.
(4) On
each
Distribution Date, the Net Monthly Excess Cashflow shall be distributed by
the
Trustee as follows:
(i) to
the
Holders of the Class or Classes of Certificates then entitled to receive
distributions in respect of principal, as part of the Principal Distribution
Amount in an amount equal to the Overcollateralization Increase Amount for
the
Certificates, applied to reduce the Certificate Principal Balance of such
Certificates until the aggregate Certificate Principal Balance of such
Certificates is reduced to zero;
(ii) sequentially,
to the Holders of the Class M-1 Certificates, Class M-2 Certificates, Class
M-3
Certificates, Class M-4 Certificates, Class M-5 Certificates, Class M-6
Certificates, Class M-7 Certificates, Class M-8 Certificates, Class M-9
Certificates and Class M-10 Certificates, in that order, in each case, in an
amount equal to the Interest Carry Forward Amount allocable to such Class of
Certificates;
(iii) on
a
pro
rata
basis to
the Class A-1 Certificates, Class A-2 Certificates, Class A-3 Certificates
and
Class A-4 Certificates, and sequentially to the Class M-1 Certificates, Class
M-2 Certificates, Class M-3 Certificates, Class M-4 Certificates, Class M-5
Certificates, Class M-6 Certificates, Class M-7 Certificates, Class M-8
Certificates, Class M-9 Certificates and Class M-10 Certificates, in that order,
in each case up to the related Allocated Realized Loss Amount related to each
such Class of Certificates for such Distribution Date;
(iv) to
the
Net WAC Rate Carryover Reserve Account, the amount by which any Net WAC Rate
Carryover Amounts for such Distribution Date exceed the amounts received by
the
Trustee under the Cap Contracts;
(v) to
the
Holders of the Class CE Certificates, (a) the Interest Distribution Amount
and
any Overcollateralization Reduction Amount for such Distribution Date and (b)
on
any Distribution Date on which the aggregate Certificate Principal Balance
of
the Class A Certificates and the Mezzanine Certificates have been reduced to
zero, any remaining amounts in reduction of the Certificate Principal Balance
of
the Class CE Certificates, until the Certificate Principal Balance thereof
has
been reduced to zero; and
(vi) to
the
Holders of the Class R Certificates, any remaining amounts; provided that if
such Distribution Date is the Distribution Date immediately following the
expiration of the latest Prepayment Charge term on a Mortgage Loan as identified
on the Mortgage Loan Schedule or any Distribution Date thereafter, then any
such
remaining amounts will be distributed first, to the Holders of the Class P
Certificates, until the Certificate Principal Balance thereof has been reduced
to zero; and second, to the Holders of the Class R Certificates.
(5) On
each
Distribution Date, after making the distributions of the Available Distribution
Amount as set forth above, the Trustee will withdraw from the Net WAC Rate
Carryover Reserve Account, to the extent of amounts remaining on deposit
therein, the amount of any Net WAC Rate Carryover Amount with respect to the
Class A Certificates and the Mezzanine Certificates for such Distribution Date
and distribute such amount as follows:
(A) concurrently,
to the Class A Certificates, on a pro
rata
basis
based on the outstanding balance of each such class immediately prior to the
Distribution Date, but only to the extent of amounts paid under the Class A
Cap
Contract and only up to the related Net WAC Carryover Amount;
(B) concurrently,
to the Mezzanine Certificates, on a pro
rata
basis
based on the outstanding balance of each such class immediately prior to the
Distribution Date, but only to the extent of amounts paid under the Mezzanine
Cap Contract and only up to the related Net WAC Carryover Amount;
and
(C) to
the
Class A Certificates, any related unpaid Net WAC Rate Carryover Amount (after
taking into account distributions pursuant to clause (A) above), distributed
on
a pro rata basis based on the remaining undistributed Net WAC Rate Carryover
Amount, but only to the extent of amounts remaining under the Class A Cap
Contract;
(D) to
the
Mezzanine Certificates, any related unpaid Net WAC Rate Carryover Amount (after
taking into account distributions pursuant to clause (B) above), distributed
on
a pro rata basis based on the remaining undistributed Net WAC Rate Carryover
Amount, but only to the extent of amounts remaining under the Mezzanine Cap
Contract; and
(E) to
the
Class A Certificates and Mezzanine Certificates from Net Monthly Excess Cash
Flow, any related unpaid Net WAC Carryover Amount (after taking into account
distributions pursuant to (A) through (D) above), distributed in the following
order of priority: (i) to the Class A Certificates, on a pro rata basis based
first on the outstanding certificate principal balance immediately prior to
the
Distribution Date, and second on such remaining undistributed Net WAC Carryover
Amount, (ii) sequentially to the Mezzanine Certificates any such remaining
undistributed Net WAC Carryover Amount for each class.
(b) On
each
Distribution Date, the Trustee shall withdraw any amounts then on deposit in
the
Certificate Account that represent Prepayment Charges collected by the Servicer,
during the related Prepayment Period in connection with the Principal Prepayment
of any of the Mortgage Loans or any Servicer Prepayment Charge Payment Amount
and shall distribute such amounts to the Holders of the Class P Certificates.
Such distributions shall not be applied to reduce the Certificate Principal
Balance of the Class P Certificates.
Following
the foregoing distributions, an amount equal to the amount of Subsequent
Recoveries shall be applied to increase the Certificate Principal Balance of
the
Class of Certificates with the Highest Priority up to the extent of such
Realized Losses previously allocated to that Class of Certificates pursuant
to
Section
4.04.
An
amount equal to the amount of any remaining Subsequent Recoveries shall be
applied to increase the Certificate Principal Balance of the Class of
Certificates with the next Highest Priority, up to the amount of such Realized
Losses previously allocated to that Class of Certificates pursuant to
Section
4.04.
Holders
of such Certificates will not be entitled to any distribution in respect of
interest on the amount of such increases for any Interest Accrual Period
preceding the Distribution Date on which such increase occurs. Any such
increases shall be applied to the Certificate Principal Balance of each
Certificate of such Class in accordance with its respective Percentage
Interest.
(c) All
distributions made with respect to each Class of Certificates on each
Distribution Date shall be allocated pro
rata
among
the outstanding Certificates in such Class based on their respective Percentage
Interests. Payments in respect of each Class of Certificates on each
Distribution Date shall be made to the Holders of the respective Class of record
on the related Record Date (except as otherwise provided in Section
4.01(e)
or
Section
9.01
respecting the final distribution on such Class), based on the aggregate
Percentage Interest represented by their respective Certificates, and shall
be
made by wire transfer of immediately available funds to the account of any
such
Holder at a bank or other entity having appropriate facilities therefor, if
such
Holder shall (i) own Certificates having denominations aggregating at least
$1,000,000 and (ii) have so notified the Trustee in writing at least five
Business Days prior to the Record Date immediately prior to such Distribution
Date, or otherwise by check mailed by first class mail to the address of such
Holder appearing in the Certificate Register. The final distribution on each
Certificate shall be made in like manner, but only upon presentment and
surrender of such Certificate at the office of the Trustee maintained for such
purpose pursuant to Section
8.12
or such
other location specified in the notice to Certificateholders of such final
distribution.
Each
distribution with respect to a Book-Entry Certificate shall be paid to the
Depository, as Holder thereof, and the Depository shall be responsible for
crediting the amount of such distribution to the accounts of its Depository
Participants in accordance with its normal procedures. Each Depository
Participant shall be responsible for disbursing such distribution to the
Certificate Owners that it represents and to each indirect participating
brokerage firm (a “brokerage firm” or “indirect participating firm”) for which
it acts as agent. Each brokerage firm shall be responsible for disbursing funds
to the Certificate Owners that it represents. None of the Trustee, the Depositor
or the Servicer shall have any responsibility therefor except as otherwise
provided by this Agreement or applicable law.
(d) The
rights of the Certificateholders to receive distributions in respect of the
Certificates, and all interests of the Certificateholders in such distributions,
shall be as set forth in this Agreement. None of the Holders of any Class of
Certificates, the Trustee or the Servicer shall in any way be responsible or
liable to the Holders of any other Class of Certificates in respect of amounts
properly previously distributed on the Certificates.
(e) Except
as
otherwise provided in Section
9.01,
whenever the Trustee expects that the final distribution with respect to any
Class of Certificates will be made on the next Distribution Date, the Trustee
shall, no later than three (3) days before the related Distribution Date (to
the
extent that an accurate Remittance Report is received in a timely manner by
the
Trustee), mail to each Holder on such date of such Class of Certificates a
notice to the effect that:
(i) the
Trustee expects that the final distribution with respect to such Class of
Certificates will be made on such Distribution Date but only upon presentation
and surrender of such Certificates at the office of the Trustee therein
specified, and
(ii) no
interest shall accrue on such Certificates from and after the end of the related
Interest Accrual Period.
Any
funds
not distributed to any Holder or Holders of Certificates of such Class on such
Distribution Date because of the failure of such Holder or Holders to tender
their Certificates shall, on such date, be set aside and held in trust by the
Trustee and credited to the account of the appropriate non-tendering Holder
or
Holders. If any Certificates as to which notice has been given pursuant to
this
Section
4.01(e)
shall
not have been surrendered for cancellation within six months after the time
specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders to surrender their Certificates
for
cancellation in order to receive the final distribution with respect thereto.
If
within one year after the second notice all such Certificates shall not have
been surrendered for cancellation, the Trustee shall, directly or through an
agent, mail a final notice to the remaining non-tendering Certificateholders
concerning surrender of their Certificates and shall continue to hold any
remaining funds for the benefit of non-tendering Certificateholders. The costs
and expenses of maintaining the funds in trust and of contacting such
Certificateholders shall be paid out of the assets held in trust for such
Certificateholders. If within one year after the final notice any such
Certificates shall not have been surrendered for cancellation, the Trustee
shall
pay to Bear, Xxxxxxx & Co. Inc., as representative for the underwriters, in
accordance with its wiring instructions, all such amounts, and all rights of
non-tendering Certificateholders in or to such amounts shall thereupon cease.
No
interest shall accrue or be payable to any Certificateholder on any amount
held
in trust by the Trustee as a result of such Certificateholder’s failure to
surrender its Certificate(s) for final payment thereof in accordance with this
Section
4.01(e).
Any
such amounts held in trust by the Trustee shall be held in an Eligible Account
and shall be held uninvested.
(f) Notwithstanding
anything to the contrary herein, (i) in no event shall the Certificate Principal
Balance of a Class A Certificate or a Mezzanine Certificate be reduced more
than
once in respect of any particular amount allocated to such Certificate in
respect of Realized Losses pursuant to Section
4.04
and (ii)
in no event shall the Uncertificated Balance of a REMIC I Regular Interest
be
reduced more than once in respect of any particular amount both
(a) allocated to such REMIC I Regular Interest in respect of Realized
Losses pursuant to Section
4.04
and (b)
distributed on such REMIC I Regular Interest in reduction of the Uncertificated
Balance thereof pursuant to this Section
4.01.
SECTION
4.02 Statements
to Certificateholders.
On the
24th
day of
any month, or if such 24th
day is
not a Business Day, the Business Day immediately following such 24th
day, the
Trustee shall prepare and make available via its website to each Holder of
the
Regular Certificates, a statement as to the distributions made on such
Distribution Date setting forth:
(i) applicable
Record Date and Determination Date for calculating such
distribution;
(ii) the
aggregate amount of payments received and the sources thereof for distributions,
fees and expenses;
(iii) the
amount of the distribution made on such Distribution Date to the Holders of
the
Certificates of each Class allocable to principal;
(iv) the
amount of the distribution made on such Distribution Date to the Holders of
the
Class P Certificates allocable to Prepayment Charges;
(v) the
amount of the distribution made on such Distribution Date to the Holders of
the
Certificates of each Class allocable to interest;
(vi) the
amount of any fees or expenses paid, and the identity of the party receiving
such fees or expenses, including the aggregate Servicing Fee received by the
Servicer during the related Due Period and such other information which a
Certificateholder reasonably requests, to enable Certificateholders to prepare
their tax returns;
(vii) the
amount of Net
Monthly Excess Cashflow or
and
the disposition of such Net Monthly Excess Cashflow;
(viii) the
balance of the Net WAC Rate Carryover Reserve Account, if any, at the opening
of
business and the close of business on such Distribution Date;
(ix) the
aggregate amount, terms and general purpose of Advances made or reimbursed
for
such Distribution Date;
(x) any
material breaches of mortgage loan representations or warranties or covenants
in
this Agreement;
(xi) any
material modifications, extensions or waivers to the terms of the Mortgage
Loans
during the related Due Period or that have cumulatively become material over
time;
(xii) information
regarding any new issuance of asset-backed securities backed by the same asset
pool or any pool asset changes;
(xiii) the
aggregate Stated Principal Balance of the Mortgage Loans and any REO Properties
at the close of business on such Distribution Date;
(xiv) the
number, aggregate principal balance, weighted average remaining term to maturity
and weighted average Mortgage Rate of the Mortgage Loans as of the related
Due
Date;
(xv) delinquency
and loss information (according to the OTS delinquency calculation method)
relating to the Mortgage Loans, including the number and aggregate unpaid
principal balance of Mortgage Loans (a) delinquent 30 to 59 days, (b)
delinquent 60 to 89 days, (c) delinquent 90 or more days, in each case, as
of
the last day of the preceding calendar month, (d) as to which foreclosure
proceedings have been commenced and (e) with respect to which the related
Mortgagor has filed for protection under applicable bankruptcy laws, with
respect to whom bankruptcy proceedings are pending or with respect to whom
bankruptcy protection is in force;
(xvi) with
respect to any Mortgage Loan that became an REO Property during the preceding
calendar month, the loan number of such Mortgage Loan, the unpaid principal
balance and the Stated Principal Balance of such Mortgage Loan as of the date
it
became an REO Property;
(xvii) the
book
value of any REO Property as of the close of business on the last Business
Day
of the calendar month preceding the Distribution Date;
(xviii) the
aggregate amount of Principal Prepayments made during the related Prepayment
Period;
(xix) the
aggregate amount of Realized Losses incurred during the related Prepayment
Period (or, in the case of Bankruptcy Losses allocable to interest, during
the
related Due Period), separately identifying whether such Realized Losses
constituted Bankruptcy Losses and the aggregate amount of Realized Losses
incurred since the Closing Date and the aggregate amount of Subsequent
Recoveries received during the related Prepayment Period and the cumulative
amount of Subsequent Recoveries received since the Closing Date;
(xx) the
aggregate amount of Extraordinary Trust Fund Expenses withdrawn from the
Custodial Account (based on information supplied by the Servicer) or from the
Certificate Account for such Distribution Date;
(xxi) the
aggregate Certificate Principal Balance and Notional Amount, as applicable,
of
each Class of Certificates, after giving effect to the distributions, and
allocations of Realized Losses, made on such Distribution Date, separately
identifying any reduction thereof due to allocations of Realized
Losses;
(xxii) the
Certificate Factor for each such Class of Certificates applicable to such
Distribution Date;
(xxiii) the
Interest Distribution Amount in respect of the Class A Certificates, the
Mezzanine Certificates and the Class CE Certificates for such Distribution
Date
and the Interest Carry Forward Amount, if any, with respect to the Class A
Certificates and the Mezzanine Certificates on such Distribution Date, and
in
the case of the Class A Certificates, the Mezzanine Certificates and the Class
CE Certificates, separately identifying any reduction thereof due to allocations
of Realized Losses, Prepayment Interest Shortfalls and Relief Act Interest
Shortfalls;
(xxiv) the
aggregate amount of any Prepayment Interest Shortfall for such Distribution
Date, to the extent not covered by payments by the Servicer pursuant to
Section
3.24;
(xxv) the
aggregate amount of Relief Act Interest Shortfalls for such Distribution
Date;
(xxvi) the
Overcollateralization Target Amount and the Credit Enhancement Percentage for
such Distribution Date;
(xxvii) the
Overcollateralization Increase Amount, if any, for such Distribution
Date;
(xxviii) the
Overcollateralization Reduction Amount, if any, for such Distribution
Date;
(xxix) the
respective Pass-Through Rates applicable to the Class A Certificates and the
Mezzanine Certificates for such Distribution Date and the Pass-Through Rate
applicable to the Class A Certificates and the Mezzanine Certificates for the
immediately succeeding Distribution Date;
(xxx) the
Net
WAC Rate Carryover Amount for the Class A Certificates and the Mezzanine
Certificates, if any, for such Distribution Date and the amount remaining unpaid
after reimbursements therefor on such Distribution Date;
(xxxi) whether
a
Trigger Event is in effect; and
(xxxii) payments,
if any, made under the Cap Contracts.
The
Trustee shall make such statement (and, at its option, any additional files
containing the same information in an alternative format) available each month
to Certificateholders, the Servicer and the Rating Agencies via the Trustee’s
internet website. The Trustee’s internet website shall initially be located at
xxxxx://xxx.xxxxxxx.xxx and assistance in using the website can be obtained
by
calling the Trustee’s investor relations desk at 0-000-000-0000. Parties that
are unable to use the above distribution options are entitled to have a paper
copy mailed to them via first class mail by calling the investor relations
desk
and indicating such. The Trustee shall have the right to change the way such
statements are distributed in order to make such distribution more convenient
and/or more accessible to the above parties and the Trustee shall provide timely
and adequate notification to all above parties regarding any such
changes.
In
the
case of information furnished pursuant to subclauses
(iii), (iv)
and
(v)
above,
the amounts shall be expressed as a dollar amount per Single Certificate of
the
relevant Class.
Within
a
reasonable period of time after the end of each calendar year, the Trustee
shall
furnish to each Person who at any time during the calendar year was a Holder
of
a Regular Certificate a statement containing the information set forth in
subclauses
(iii), (iv)
and
(v)
above,
aggregated for such calendar year or applicable portion thereof during which
such person was a Certificateholder. Such obligation of the Trustee shall be
deemed to have been satisfied to the extent that substantially comparable
information shall be provided by the Trustee pursuant to any requirements of
the
Code as from time to time are in force.
Within
a
reasonable period of time after the end of each calendar year, the Trustee
shall
furnish to each Person who at any time during the calendar year was a Holder
of
a Residual Certificate a statement setting forth the amount, if any, actually
distributed with respect to the Residual Certificates, as appropriate,
aggregated for such calendar year or applicable portion thereof during which
such Person was a Certificateholder.
The
Trustee shall, upon request, furnish to each Certificateholder, during the
term
of this Agreement, such periodic, special, or other reports or information,
whether or not provided for herein, as shall be reasonable with respect to
the
Certificateholder, or otherwise with respect to the purposes of this Agreement,
all such reports or information to be provided at the expense of the
Certificateholder in accordance with such reasonable and explicit instructions
and directions as the Certificateholder may provide. For purposes of this
Section
4.02,
the
Trustee’s duties are limited to the extent that the Trustee receives timely
reports as required from the Servicer.
On
each
Distribution Date the Trustee shall provide Bloomberg Financial Markets, L.P.
(“Bloomberg”)
CUSIP
level factors for each class of Certificates as of such Distribution Date,
using
a format and media mutually acceptable to the Trustee and
Bloomberg.
SECTION
4.03 Remittance
Reports; Advances.
(a)
On the
third Business Day following each Determination Date but in no event later
than
the 20th
day of
each month (or if such 20th
day is
not a Business Day, the preceding Business Day), the Servicer shall deliver
to
the Trustee by telecopy or electronic mail (or by such other means as the
Servicer and the Trustee may agree from time to time) a Remittance Report with
respect to the related Distribution Date. On the same date, the Servicer shall
electronically transmit to the Trustee (in a format acceptable to the Trustee),
a data file containing the information set forth in such Remittance Report
(including but not limited to the date elements specified in Schedule 4 hereto
or in such form mutually agreed upon by the Servicer and the Trustee) with
respect to the related Distribution Date or if electronic transmission is not
available, the Servicer shall forward to the Trustee by overnight mail a
computer readable magnetic tape. Such Remittance Report will include (i) the
amount of Advances to be made by the Servicer in respect of the related
Distribution Date, the aggregate amount of Advances outstanding after giving
effect to such Advances, and the aggregate amount of Nonrecoverable Advances
in
respect of such Distribution Date and (ii) such other information with respect
to the Mortgage Loans as the Trustee may reasonably require to perform the
calculations necessary to make the distributions contemplated by Section
4.01
and to
prepare the statements to Certificateholders contemplated by Section
4.02.
The
Trustee shall not be responsible to recompute, recalculate or verify any
information provided to it by the Servicer.
(b) The
amount of Advances to be made by the Servicer for any Distribution Date shall
equal, subject to Section
4.03(d),
the sum
of, (i) the aggregate amount of Monthly Payments (with each interest portion
thereof net of the related Servicing Fee), due on the related Due Date in
respect of the Mortgage Loans, which Monthly Payments were delinquent as of
the
close of business on the related Determination Date and (ii) with respect to
each REO Property, which REO Property was acquired during or prior to the
related Prepayment Period and as to which REO Property an REO Disposition did
not occur during the related Prepayment Period, an amount equal to the excess,
if any, of the REO Imputed Interest on such REO Property for the most recently
ended calendar month, over the net income from such REO Property transferred
to
the Certificate Account pursuant to Section
3.23
for
distribution on such Distribution Date.
By
1:00
p.m. New York time on the Servicer Remittance Date, the Servicer shall remit
in
immediately available funds to the Trustee for deposit in the Certificate
Account an amount equal to the aggregate amount of Advances, if any, to be
made
in respect of the Mortgage Loans and REO Properties for the related Distribution
Date either (i) from its own funds or (ii) from the Custodial Account, to the
extent of funds held therein for future distribution (in which case it will
cause to be made an appropriate entry in the records of the Custodial Account
that amounts held for future distribution have been, as permitted by this
Section
4.03,
used by
the Servicer in discharge of any such Advance) or (iii) in the form of any
combination of (i) and (ii) aggregating the total amount of Advances to be
made
by the Servicer with respect to the Mortgage Loans and REO Properties. Any
amounts held for future distribution and so used or withdrawn by the Servicer
as
permitted in Section
3.11(a)(ii)
shall be
appropriately reflected in the Servicer’s records and replaced by the Servicer
by deposit in the Custodial Account on or before any future Servicer Remittance
Date to the extent that the Available Distribution Amount for the related
Distribution Date (determined without regard to Advances to be made on the
Servicer Remittance Date) shall be less than the total amount that would be
distributed to the Classes of Certificateholders pursuant to Section
4.01
on such
Distribution Date if such amounts held for future distributions had not been
so
used to make Advances. The Trustee will provide notice to the Servicer by
telecopy by the close of business on the Business Day prior to the Distribution
Date in the event that the amount remitted by the Servicer to the Trustee on
such date is less than the amount required to be remitted by the Servicer as
set
forth in the Remittance Report for the related Distribution Date.
(c) The
obligation of the Servicer to make such Advances is mandatory, notwithstanding
any other provision of this Agreement but subject to (d)
below,
and, with respect to any Mortgage Loan or REO Property, shall continue until
a
Final Recovery Determination in connection therewith or the removal thereof
from
the Trust Fund pursuant to any applicable provision of this Agreement, except
as
otherwise provided in this Section.
(d) Notwithstanding
anything herein to the contrary, no Advance or Servicing Advance shall be
required to be made hereunder by the Servicer if such Advance or Servicing
Advance would, if made, constitute a Nonrecoverable Advance or Nonrecoverable
Servicing Advance, respectively. The determination by the Servicer that it
has
made a Nonrecoverable Advance or a Nonrecoverable Servicing Advance or that
any
proposed Advance or Servicing Advance, if made, would constitute a
Nonrecoverable Advance or Nonrecoverable Servicing Advance, respectively, shall
be evidenced by a certification of a Servicing Officer delivered to the
Depositor and the Trustee.
SECTION
4.04 Allocation
of Realized Losses.
(a)
Prior to
each Determination Date, the Servicer shall determine as to each Mortgage Loan
and REO Property: (i) the total amount of Realized Losses, if any, incurred
in
connection with any Final Recovery Determinations made during the related
Prepayment Period; (ii) whether and the extent to which such Realized Losses
constituted Bankruptcy Losses; and (iii) the respective portions of such
Realized Losses allocable to interest and allocable to principal. Prior to
each
Determination Date, the Servicer shall also determine as to each Mortgage Loan:
(i) the total amount of Realized Losses, if any, incurred in connection with
any
Deficient Valuations made during the related Prepayment Period; and (ii) the
total amount of Realized Losses, if any, incurred in connection with Debt
Service Reductions in respect of Monthly Payments due during the related Due
Period. The information described in the two preceding sentences that is to
be
supplied by the Servicer shall be evidenced by an Officers’ Certificate
delivered to the Trustee by the Servicer prior to the Determination Date
immediately following the end of (i) in the case of Bankruptcy Losses allocable
to interest, the Due Period during which any such Realized Loss was incurred,
and (ii) in the case of all other Realized Losses, the Prepayment Period
during which any such Realized Loss was incurred.
(b) All
Realized Losses on the Mortgage Loans shall be allocated or covered by the
Trustee on each Distribution Date as follows: first, to the Accrued Certificate
Interest for the Class CE Certificates for the related Interest Accrual Period;
second, to the Class CE Certificates, until the Certificate Principal Balance
thereof has been reduced to zero; third, to the Class M-10 Certificates, until
the Certificate Principal Balance thereof has been reduced to zero; fourth,
to
the Class M-9 Certificates, until the Certificate Principal Balance thereof
has
been reduced to zero; fifth, to the Class M-8 Certificates, until the
Certificate Principal Balance thereof has been reduced to zero; sixth, to the
Class M-7 Certificates until the Certificate Principal Balance thereof has
been
reduced to zero; seventh, to the Class M-6 Certificates until the Certificate
Principal Balance thereof has been reduced to zero; eighth, to the Class M-5
Certificates until the Certificate Principal Balance thereof has been reduced
to
zero; ninth, to the Class M-4 Certificates until the Certificate Principal
Balance thereof has been reduced to zero; tenth, to the Class M-3 Certificates
until the Certificate Principal Balance thereof has been reduced to zero;
eleventh, to the Class M-2 Certificates, until the Certificate Principal Balance
thereof has been reduced to zero; twelfth, to the Class M-1 Certificates, until
the Certificate Principal Balance thereof has been reduced to zero; and
thirteenth, concurrently, to the Class A-1 Certificates, Class A-2 Certificates,
Class A-3 Certificates and Class A-4 Certificates on a pro
rata
basis
based on the Certificate Principal Balance of each such Class of Certificates,
until their respective Certificate Principal Balances have been reduced to
zero.
All
Realized Losses to be allocated to the Certificate Principal Balances of all
Classes on any Distribution Date shall be so allocated after the actual
distributions to be made on such date as provided above. All references above
to
the Certificate Principal Balance of any Class of Certificates shall be to
the
Certificate Principal Balance of such Class immediately prior to the relevant
Distribution Date, before reduction thereof by any Realized Losses, in each
case
to be allocated to such Class of Certificates, on such Distribution
Date.
Any
allocation of Realized Losses to a Class A Certificate or Mezzanine Certificate
on any Distribution Date shall be made by reducing the Certificate Principal
Balance thereof by the amount so allocated and any allocation of Realized Losses
to a Class CE Certificates shall be made by reducing the amount otherwise
payable in respect thereof pursuant to Section
4.01(a)(4)(vi).
No
allocations of any Realized Losses shall be made to the Certificate Principal
Balances of the Class P Certificates.
As
used
herein, an allocation of a Realized Loss on a “pro
rata
basis”
among two or more specified Classes of Certificates means an allocation on
a
pro
rata
basis,
among the various Classes so specified, to each such Class of Certificates
on
the basis of their then outstanding Certificate Principal Balances prior to
giving effect to distributions to be made on such Distribution Date. All
Realized Losses and all other losses allocated to a Class of Certificates
hereunder will be allocated among the Certificates of such Class in proportion
to the Percentage Interests evidenced thereby.
(c) All
Realized Losses on the Mortgage Loans shall be allocated by the Trustee on
each
Distribution Date to the following REMIC I Regular Interests in the specified
percentages, as follows: first, to Uncertificated Interest payable to the REMIC
I Regular Interest I-LTAA and REMIC I Regular Interest I-LTZZ up to an aggregate
amount equal to the REMIC I Interest Loss Allocation Amount, 98% and 2%,
respectively; second, to the Uncertificated Balances of the REMIC I Regular
Interest I-LTAA and REMIC I Regular Interest I-LTZZ up to an aggregate amount
equal to the REMIC I Principal Loss Allocation Amount, 98% and 2%, respectively;
third, to the Uncertificated Balances of REMIC I Regular Interest I-LTAA, REMIC
I Regular Interest I-LTM10 and REMIC I Regular Interest I-LTZZ, 98%, 1% and
1%,
respectively, until the Uncertificated Balance of REMIC I Regular Interest
I-LTM10 has been reduced to zero; fourth, to the Uncertificated Balances of
REMIC I Regular Interest I-LTAA, REMIC I Regular Interest I-LTM9 and REMIC
I
Regular Interest I-LTZZ, 98%, 1% and 1%, respectively, until the Uncertificated
Balance of REMIC I Regular Interest I-LTM9 has been reduced to zero; fifth,
to
the Uncertificated Balances of REMIC I Regular Interest I-LTAA, REMIC I Regular
Interest I-LTM8 and REMIC I Regular Interest I-LTZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Balance of REMIC I Regular Interest
I-LTM8 has been reduced to zero; sixth, to the Uncertificated Balances of REMIC
I Regular Interest I-LTAA, REMIC I Regular Interest I-LTM7 and REMIC I Regular
Interest I-LTZZ, 98%, 1% and 1%, respectively, until the Uncertificated Balance
of REMIC I Regular Interest I-LTM7 has been reduced to zero; seventh to the
Uncertificated Balances of REMIC I Regular Interest I-LTAA, REMIC I Regular
Interest I-LTM6 and REMIC I Regular Interest I-LTZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Balance of REMIC I Regular Interest
I-LTM6 has been reduced to zero; eighth to the Uncertificated Balances of REMIC
I Regular Interest I-LTAA, REMIC I Regular Interest I-LTM5 and REMIC I Regular
Interest I-LTZZ, 98%, 1% and 1%, respectively, until the Uncertificated Balance
of REMIC I Regular Interest I-LTM5 has been reduced to zero; ninth to the
Uncertificated Balances of REMIC I Regular Interest I-LTAA, REMIC I Regular
Interest I-LTM4 and REMIC I Regular Interest I-LTZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Balance of REMIC I Regular Interest
I-LTM4 has been reduced to zero; tenth, to the Uncertificated Balances of REMIC
I Regular Interest I-LTAA, REMIC I Regular Interest I-LTM3 and REMIC I Regular
Interest I-LTZZ, 98%, 1% and 1%, respectively, until the Uncertificated Balance
of REMIC I Regular Interest I-LTM3 has been reduced to zero; eleventh, to the
Uncertificated Balances of REMIC I Regular Interest I-LTAA, REMIC I Regular
Interest I-LTM2 and REMIC I Regular Interest I-LTZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Balance of REMIC I Regular Interest
I-LTM2 has been reduced to zero; twelfth, to the Uncertificated Balances of
REMIC I Regular Interest I-LTAA, REMIC I Regular Interest I-LTM1 and REMIC
I
Regular Interest I-LTZZ, 98%, 1% and 1%, respectively, until the Uncertificated
Balance of REMIC I Regular Interest I-LTM1 has been reduced to zero; and
thirteenth, concurrently, to the Uncertificated Balances of REMIC I Regular
Interest I-LTAA, REMIC I Regular Xxxxxxxx X-XXX0, X-XXX0, X-XXX0 and I-LTA4
on a
pro
rata
basis,
and REMIC I Regular Interest I-LTZZ, 98%, 1% and 1%, respectively, until their
respective Uncertificated Balance of REMIC I Regular Interest has been reduced
to zero.
SECTION
4.05 Compliance
with Withholding Requirements.
Notwithstanding any other provision of this Agreement, the Trustee shall comply
with all federal withholding requirements respecting payments to
Certificateholders of interest or original issue discount that the Trustee
reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for such withholding. In the event
the
Trustee does withhold any amount from interest or original issue discount
payments or advances thereof to any Certificateholder pursuant to federal
withholding requirements, the Trustee shall indicate the amount withheld to
such
Certificateholders.
SECTION
4.06 Exchange
Commission; Additional Information.
(a)
Notwithstanding anything herein to the contrary, the Depositor, and not the
Trustee, shall be responsible for executing each Form 10-K filed on behalf
of
the Trust.
Within
15
days after each Distribution Date, the Trustee shall, in accordance with
applicable law, prepare and file with the Commission via the Electronic Data
Gathering and Retrieval System (“XXXXX”),
any
Form 10-D (or other comparable Form containing the same or comparable
information or other information mutually agreed upon), in the form and
substance as required by the Exchange Act, with a copy of the statement to
the
Certificateholders for such Distribution Date as an exhibit thereto. Any
necessary disclosure in addition to the statement to the Certificateholders
that
is required to be included on Form 10-D (“Additional
Form 10-D Disclosure”)
shall,
pursuant to the paragraph immediately below, be reported by the Seller, the
Depositor, the Trustee, the Trust, any servicer under Item 1108(a)(3) of
Regulation AB, any originator under Item 1110(b) of Regulation AB, any other
party contemplated by Items 1100(d)(1), 1112(b), Item 1114(b)(2) or 115(b)
of
Regulation AB as identified to the Trustee by the Depositor (together the
“Reporting
Parties”),
any
party so required under and directed and approved by the Depositor, and the
Trustee will have no duty or liability for any failure hereunder to determine
or
prepare any Additional Form 10-D Disclosure absent such reporting, direction
and
approval.
For
so
long as the Trust is subject to the reporting requirements of the Securities
Exchange Act of 1934, as amended (the “Exchange
Act”),
within 5 calendar days after the related Distribution Date, (i) the Reporting
Parties shall be required to provide to the Trustee and the Depositor, to the
extent known, in XXXXX-compatible form, or in such other form as otherwise
agreed upon by the Trustee and the Depositor and such party, the form and
substance of the Additional Form 10-D Disclosure applicable to such party,
and
(ii) the Depositor will approve, as to form and substance, or disapprove, as
the
case may be, the inclusion of the Additional Form 10-D Disclosure on Form 10-D.
The Trustee has no duty under this Agreement to monitor or enforce the
performance by the Reporting Parties of their duties under this paragraph or
proactively solicit or procure from such parties any Additional Form 10-D
Disclosure information. The Depositor will be responsible for any reasonable
fees and expenses assessed or incurred by the Trustee in connection with
including any Additional Form 10-D Disclosure on Form 10-D pursuant to this
paragraph.
After
preparing the Form 10-D, the Trustee shall forward electronically a draft copy
of the Form 10-D to the Depositor for review. No later than 2 Business Days
prior to the 15th calendar day after the related Distribution Date, a senior
officer of the Depositor shall sign the Form 10-D and return an electronic
or
fax copy of such signed Form 10-D (with an original executed hard copy to follow
by overnight mail) to the Trustee. If a Form 10-D cannot be filed on time or
if
a previously filed Form 10-D needs to be amended, the Trustee will follow the
procedures set forth in the second paragraph of Section
4.06(d).
Promptly (but no later than 1 Business Day) after filing with the Commission,
the Trustee will make available on its internet website a final executed copy
of
each Form 10-D prepared and filed by the Trustee. The signing party at the
Depositor can be contacted as described in Section
13.05
hereto.
The parties to this Agreement acknowledge that the performance by the Trustee
of
its duties under this Section
4.06(a)
related
to the timely preparation and filing of Form 10-D is contingent upon such
parties strictly observing all applicable deadlines in the performance of their
duties under this Section
4.06(a).
The
Trustee shall have no liability for any loss, expense, damage, claim arising
out
of or with respect to any failure to properly prepare and/or timely file such
Form 10-D, where such failure results from the Trustee’s inability or failure to
receive, on a timely basis, any information from any other party hereto needed
to prepare, arrange for execution or file such Form 10-D, not resulting from
its
own negligence, bad faith or willful misconduct.
(b) Within
90
days after the end of each fiscal year of the Trust or such earlier date as
may
be required by the Exchange Act (the “10-K
Filing Deadline”)
(it
being understood that the fiscal year for the Trust ends on December 31st of
each year), commencing in March 2007, the Trustee shall prepare and file on
behalf of the Trust a Form 10-K, in form and substance as required by the
Exchange Act. Each such Form 10-K shall include the following items, in each
case to the extent they have been delivered to the Trustee within the applicable
time frames set forth in this Agreement, (i) an annual compliance statement
for
the Servicer and each Additional Servicer, as described under Section
12.04,
(ii)(A)
the annual reports on assessment of compliance with servicing criteria for
the
Servicer, each Additional Servicer and the Trustee, as described under
Sections
11.04
and
12.05,
and (B)
if the Servicer’s, each Additional Servicer’s or the Trustee’s report on
assessment of compliance with servicing criteria described under Sections
11.04
and
12.05
identifies any material instance of noncompliance, disclosure identifying such
instance of noncompliance, or if the Servicer’s, each Additional Servicer’s or
the Trustee’s report on assessment of compliance with servicing criteria
described under Sections
11.04
and
12.05
is not
included as an exhibit to such Form 10-K, disclosure that such report is not
included and an explanation why such report is not included, (iii)(A) the
registered public accounting firm attestation report for the Servicer, each
Additional Servicer and the Trustee, as described under Sections
11.04
and
12.05,
and (B)
if any registered public accounting firm attestation report described under
Sections
11.04
and
12.05
identifies any material instance of noncompliance, disclosure identifying such
instance of noncompliance, or if any such registered public accounting firm
attestation report is not included as an exhibit to such Form 10-K, disclosure
that such report is not included and an explanation why such report is not
included, and (iv) a Xxxxxxxx-Xxxxx certificate. In addition, the Trustee shall
sign a certification (in the form attached hereto as Exhibit
I-2)
for the
benefit of the Depositor and its officers, directors and Affiliates regarding
certain aspects of the Servicer’s Backup Sarbanes Certification (the
“Trustee
Certification”)
(provided,
however,
that
the Trustee shall not undertake an analysis of the accountant’s report attached
as an exhibit to Form 10-K). Any necessary disclosure that is required to be
included on Form 10-K (“Additional
Form 10-K Disclosure”)
shall,
pursuant to the paragraph immediately below, be reported by the Reporting
Parties and directed and approved by the Depositor, and the Trustee will have
no
duty or liability for any failure hereunder to determine or prepare any
Additional Form 10-K Disclosure absent such reporting, direction and
approval.
For
so
long as the Trust is subject to the reporting requirements of the Exchange
Act,
no later than March 10 (with a 5 calendar day cure period), commencing in March
2007 (i) the Reporting Parties shall be required to provide to the Trustee
and
the Depositor, to the extent known, in XXXXX-compatible form, or in such other
form as otherwise agreed upon by the Trustee and the Depositor and such party,
the form and substance of the Additional Form 10-K Disclosure applicable to
such
party, and (ii) the Depositor will approve, as to form and substance, or
disapprove, as the case may be, the inclusion of the Additional Form 10-K
Disclosure on Form 10-K. The Trustee has no duty under this Agreement to monitor
or enforce the performance by the Reporting Parties of their duties under this
paragraph or proactively solicit or procure from such parties any Additional
Form 10-K Disclosure information. The Depositor will be responsible for any
reasonable fees and expenses assessed or incurred by the Trustee in connection
with including any Additional Form 10-K Disclosure on Form 10-K pursuant to
this
paragraph.
After
preparing the Form 10-K, the Trustee shall forward electronically a draft copy
of the Form 10-K to the Depositor for review. No later than end of business
New
York City time on the 4th Business Day prior to the 10-K Filing Deadline, a
senior officer of the Depositor shall sign the Form 10-K and related Sarbanes
Certification (as defined below) to be filed with the SEC, and return an
electronic or fax copy of such signed Form 10-K (with an original executed
hard
copy to follow by overnight mail) to the Trustee. If a Form 10-K cannot be
filed
on time or if a previously filed Form 10-K needs to be amended, the Trustee
will
follow the procedures set forth in the second paragraph of Section
4.06(d).
Promptly (but no later than 1 Business Day) after filing with the Commission,
the Trustee will make available on its internet website a final executed copy
of
each Form 10-K prepared and filed by the Trustee. The signing party at the
Depositor can be contacted as described in Section
13.05.
The
parties to this Agreement acknowledge that the performance by the Trustee of
its
duties under this Section
4.06(b)
related
to the timely preparation and filing of Form 10-K is contingent upon such
parties (and any Additional Servicer or Servicing Function Participant) strictly
observing all applicable deadlines in the performance of their duties under
this
Section
4.06,
Sections
11.04
and
12.05
and
Section
12.04.
The
Trustee shall have no liability for any loss, expense, damage, claim arising
out
of or with respect to any failure to properly prepare and/or timely file such
Form 10-K, where such failure results from the Trustee’s inability or failure to
receive, on a timely basis, any information from any other party hereto needed
to prepare, arrange for execution or file such Form 10-K, not resulting from
its
own negligence, bad faith or willful misconduct.
(c) Within
four (4) Business Days after the occurrence of an event requiring disclosure
on
Form 8-K (each such event, a “Reportable
Event”),
and
if requested by the Depositor and to the extent it receives the Form 8-K
Disclosure Information described below, the Trustee shall prepare and file
on
behalf of the Trust any Form 8-K, as required by the Exchange Act, provided
that
the Depositor shall file the initial Form 8-K in connection with the issuance
of
the Certificates. Any disclosure or information related to a Reportable Event
or
that is otherwise required to be included on Form 8-K (“Form
8-K Disclosure Information”)
shall,
pursuant to the paragraph immediately below, be reported by the Reporting
Parties and directed and approved by the Depositor, and the Trustee will have
no
duty or liability for any failure hereunder to determine or prepare any Form
8-K
Disclosure Information absent such reporting, direction and
approval.
For
so
long as the Trust is subject to the reporting requirements of the Exchange
Act,
no later than end of business on the 2nd Business Day after the occurrence
of a
Reportable Event (i) the Reporting Parties hereto shall be required to provide
to the Trustee and the Depositor, to the extent known, in XXXXX-compatible
form,
or in such other form as otherwise agreed upon by the Trustee and the Depositor
and such party, the form and substance of the Form 8-K Disclosure Information
applicable to such party, and (ii) the Depositor will approve, as to form and
substance, or disapprove, as the case may be, the inclusion of the Form 8-K
Disclosure Information on Form 8-K. The Trustee has no duty under this Agreement
to monitor or enforce the performance by the Reporting Parties of their duties
under this paragraph or proactively solicit or procure from such parties any
Form 8-K Disclosure Information. The Depositor will be responsible for any
reasonable fees and expenses assessed or incurred by the Trustee in connection
with including any Form 8-K Disclosure Information on Form 8-K pursuant to
this
paragraph.
After
preparing the Form 8-K, the Trustee shall forward electronically a draft copy
of
the Form 8-K to the Depositor and the Servicer, if applicable, for review.
No
later than Noon New York City time on the 4th Business Day after the Reportable
Event, a senior officer of the Depositor shall sign the Form 8-K and return
an
electronic or fax copy of such signed Form 8-K (with an original executed hard
copy to follow by overnight mail) to the Trustee. If a Form 8-K cannot be filed
on time or if a previously filed Form 8-K needs to be amended, the Trustee
will
follow the procedures set forth in the second paragraph of Section
4.06(d).
Promptly (but no later than 1 Business Day) after filing with the Commission,
the Trustee will, make available on its internet website a final executed copy
of each Form 8-K prepared and filed by the Trustee. The signing party at the
Depositor can be contacted as described in Section
13.05.
The
parties to this Agreement acknowledge that the performance by the Trustee of
its
duties under this Section
4.06(c)
related
to the timely preparation and filing of Form 8-K is contingent upon such parties
strictly observing all applicable deadlines in the performance of their duties
under this Section
4.06(c).
The
Trustee shall have no liability for any loss, expense, damage, claim arising
out
of or with respect to any failure to properly prepare and/or timely file such
Form 8-K, where such failure results from the Trustee’s inability or failure to
receive, on a timely basis, any information from any other party hereto needed
to prepare, arrange for execution or file such Form 8-K, not resulting from
its
own negligence, bad faith or willful misconduct.
(d) On
or
prior to January 30 of the first year in which the Trustee is able to do so
under applicable law, the Trustee shall prepare and file a Form 15 Suspension
Notification relating to the automatic suspension of reporting in respect of
the
Trust under the Exchange Act.
In
the
event that the Trustee is unable to timely file with the Commission all or
any
required portion of any Form 8-K, 10-D or 10-K required to be filed by this
Agreement because required disclosure information was either not delivered
to it
or delivered to it after the delivery deadlines set forth in this Agreement
or
for any other reason, the Trustee will promptly notify the Depositor and the
Servicer of such inability to make a timely filing with the Commission. In
the
case of Form 10-D and 10-K, the Depositor, Servicer and Trustee will cooperate
to prepare and file a Form 12b-25 and a 10-DA and 10-KA as applicable, pursuant
to Rule 12b-25 of the Exchange Act. In the case of Form 8-K, the Trustee will,
upon receipt of all required Form 8-K Disclosure Information and upon the
approval and direction of the Depositor, include such disclosure information
on
the next succeeding Form 10-D to be filed for the Trust. In the event that
any
previously filed Form 8-K, 10-D or 10-K needs to be amended, the Trustee will
notify the Depositor and the Servicer and such parties agree to cooperate to
prepare any necessary 8-KA, 10-DA or 10-KA. Any Form 15, Form 12b-25 or any
amendment to Form 8-K or 10-K shall be signed by a senior officer of the Trustee
and any amendment to Form 10-D shall be signed by a senior officer of the
Depositor. The Depositor and Servicer acknowledge that the performance by the
Trustee of its duties under this Section
4.06(d)
related
to the timely preparation and filing of Form 15, a Form 12b-25 or any amendment
to Form 8-K, 10-D or 10-K is contingent upon the Servicer and the Depositor
performing their duties under this Section. The Trustee shall have no liability
for any loss, expense, damage, claim arising out of or with respect to any
failure to properly prepare and/or timely file any such Form 15, Form 12b-25
or
any amendments to Forms 8-K, 10-D or 10-K, where such failure results from
the
Trustee’s inability or failure to receive, on a timely basis, any information
from any other party hereto needed to prepare, arrange for execution or file
such Form 15, Form 12b-25 or any amendments to Forms 8-K, 10-D or 10-K, not
resulting from its own negligence, bad faith or willful misconduct.
The
Trustee shall have no responsibility to file any items other than those
specified in this Section
4.06;
provided,
however,
the
Trustee and the Servicer will cooperate with the Depositor in connection with
any additional filings with respect to the Trust Fund as the Depositor deems
necessary under the Exchange Act.
ARTICLE
V
THE
CERTIFICATES
SECTION
5.01 The
Certificates.
(a)
The
Certificates in the aggregate will represent the entire beneficial ownership
interest in the Mortgage Loans and all other assets included in REMIC
I.
The
Certificates will be substantially in the forms annexed hereto as Exhibits
A-1
through
A-17.
The
Certificates of each Class will be issuable in registered form only, in
denominations of authorized Percentage Interests as described in the definition
thereof. Each Certificate will share ratably in all rights of the related
Class.
Upon
original issue, the Certificates shall be executed, authenticated and delivered
by the Trustee to or upon the written order of the Depositor. The Certificates
shall be executed by manual or facsimile signature on behalf of the Trustee
by
an authorized signatory. Certificates bearing the manual or facsimile signatures
of individuals who were at any time the proper officers of the Trustee shall
bind the Trustee notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of such Certificates.
No
Certificate shall be entitled to any benefit under this Agreement or be valid
for any purpose, unless there appears on such Certificate a certificate of
authentication substantially in the form provided herein executed by the Trustee
by manual signature, and such certificate of authentication shall be conclusive
evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All Certificates shall be dated the
date
of their authentication.
(b) The
Class
A Certificates and the Mezzanine Certificates shall initially be issued as
one
or more Certificates held by the Book-Entry Custodian or, if appointed to hold
such Certificates as provided below, the Depository and registered in the name
of the Depository or its nominee and, except as provided below, registration
of
such Certificates may not be transferred by the Trustee except to another
Depository that agrees to hold such Certificates for the respective Certificate
Owners with Ownership Interests therein. The Certificate Owners shall hold
their
respective Ownership Interests in and to such Certificates through the
book-entry facilities of the Depository and, except as provided below, shall
not
be entitled to definitive, fully registered Certificates (“Definitive
Certificates”)
in
respect of such Ownership Interests. All transfers by Certificate Owners of
their respective Ownership Interests in the Book-Entry Certificates shall be
made in accordance with the procedures established by the Depository Participant
or brokerage firm representing such Certificate Owner. Each Depository
Participant shall only transfer the Ownership Interests in the Book-Entry
Certificates of Certificate Owners it represents or of brokerage firms for
which
it acts as agent in accordance with the Depository’s normal procedures. The
Trustee is hereby initially appointed as the Book-Entry Custodian and hereby
agrees to act as such in accordance herewith and in accordance with the
agreement that it has with the Depository authorizing it to act as such. The
Book-Entry Custodian may, and, if it is no longer qualified to act as such,
the
Book-Entry Custodian shall, appoint, by a written instrument delivered to the
Depositor, the Servicer, the Trustee and, if the Trustee is not the Book-Entry
Custodian, the Trustee, any other transfer agent (including the Depository
or
any successor Depository) to act as Book-Entry Custodian under such conditions
as the predecessor Book-Entry Custodian and the Depository or any successor
Depository may prescribe, provided that the predecessor Book-Entry Custodian
shall not be relieved of any of its duties or responsibilities by reason of
any
such appointment of other than the Depository. If the Trustee resigns or is
removed in accordance with the terms hereof, the successor Trustee or, if it
so
elects, the Depository shall immediately succeed to its predecessor’s duties as
Book-Entry Custodian. The Depositor shall have the right to inspect, and to
obtain copies of, any Certificates held as Book-Entry Certificates by the
Book-Entry Custodian.
The
Trustee, the Servicer and the Depositor may for all purposes (including the
making of payments due on the respective Classes of Book-Entry Certificates)
deal with the Depository as the authorized representative of the Certificate
Owners with respect to the respective Classes of Book-Entry Certificates for
the
purposes of exercising the rights of Certificateholders hereunder. The rights
of
Certificate Owners with respect to the respective Classes of Book-Entry
Certificates shall be limited to those established by law and agreements between
such Certificate Owners and the Depository Participants and brokerage firms
representing such Certificate Owners. Multiple requests and directions from,
and
votes of, the Depository as Holder of any Class of Book-Entry Certificates
with
respect to any particular matter shall not be deemed inconsistent if they are
made with respect to different Certificate Owners. The Trustee may establish
a
reasonable record date in connection with solicitations of consents from or
voting by Certificateholders and shall give notice to the Depository of such
record date.
If
(i)(A)
the Depositor advises the Trustee in writing that the Depository is no longer
willing or able to properly discharge its responsibilities as Depository, and
(B) the Depositor is unable to locate a qualified successor or (ii) after the
occurrence of a Servicer Event of Default, Certificate Owners representing
in
the aggregate not less than 66% of the Ownership Interests of the Book-Entry
Certificates advise the Trustee through the Depository, in writing, that the
continuation of a book-entry system through the Depository is no longer in
the
best interests of the Certificate Owners, the Trustee shall notify all
Certificate Owners, through the Depository, of the occurrence of any such event
and of the availability of Definitive Certificates to Certificate Owners
requesting the same. Upon surrender to the Trustee of the Book-Entry
Certificates by the Book-Entry Custodian or the Depository, as applicable,
accompanied by registration instructions from the Depository for registration
of
transfer, the Trustee shall cause the Definitive Certificates to be issued.
Such
Definitive Certificates will be issued in minimum denominations of $25,000,
except that any beneficial ownership that was represented by a Book-Entry
Certificate in an amount less than $25,000 immediately prior to the issuance
of
a Definitive Certificate shall be issued in a minimum denomination equal to
the
amount represented by such Book-Entry Certificate. None of the Depositor, the
Servicer or the Trustee shall be liable for any delay in the delivery of such
instructions and may conclusively rely on, and shall be protected in relying
on,
such instructions. Upon the issuance of Definitive Certificates all references
herein to obligations imposed upon or to be performed by the Depository shall
be
deemed to be imposed upon and performed by the Trustee, to the extent applicable
with respect to such Definitive Certificates, and the Trustee shall recognize
the Holders of the Definitive Certificates as Certificateholders
hereunder.
SECTION
5.02 Registration
of Transfer and Exchange of Certificates.
(a)
The
Trustee shall cause to be kept at one of the offices or agencies to be appointed
by the Trustee in accordance with the provisions of Section
8.11,
a
Certificate Register for the Certificates in which, subject to such reasonable
regulations as it may prescribe, the Trustee shall provide for the registration
of Certificates and of transfers and exchanges of Certificates as herein
provided.
(b) No
transfer of any Class M-10 Certificate, Class CE Certificate, Class P
Certificate or Residual Certificate (the “Private
Certificates”)
shall
be made unless that transfer is made pursuant to an effective registration
statement under the Securities Act of 1933, as amended (the “1933
Act”),
and
effective registration or qualification under applicable state securities laws,
or is made in a transaction that does not require such registration or
qualification. In the event that such a transfer of a Private Certificate is
to
be made without registration or qualification (other than in connection with
(i)
the initial transfer of any such Certificate by the Depositor to an Affiliate
of
the Depositor, (ii) the transfer of any such Class CE or Class P Certificate
to
the issuer under the Indenture or the indenture trustee under the Indenture
or
(iii) a transfer of any such Class CE or Class P Certificate from the issuer
under the Indenture or the indenture trustee under the Indenture to the
Depositor or an Affiliate of the Depositor), the Trustee shall require receipt
of: (i) if such transfer is purportedly being made in reliance upon Rule 144A
under the 1933 Act, written certifications from the Certificateholder desiring
to effect the transfer and from such Certificateholder’s prospective transferee,
substantially in the forms attached hereto as Exhibit
F-1;
and
(ii) in all other cases, an Opinion of Counsel satisfactory to it that such
transfer may be made without such registration (which Opinion of Counsel shall
not be an expense of the Trust Fund or of the Depositor, the Trustee, the
Servicer in its capacity as such or any Sub-Servicer), together with copies
of
the written certification(s) of the Certificateholder desiring to effect the
transfer and/or such Certificateholder’s prospective transferee upon which such
Opinion of Counsel is based, if any. None of the Depositor or the Trustee is
obligated to register or qualify any such Certificates under the 1933 Act or
any
other securities laws or to take any action not otherwise required under this
Agreement to permit the transfer of such Certificates without registration
or
qualification. Any Certificateholder desiring to effect the transfer of any
such
Certificate shall, and does hereby agree to, indemnify the Trustee, the
Depositor and the Servicer against any liability that may result if the transfer
is not so exempt or is not made in accordance with such federal and state
laws.
Notwithstanding
the foregoing, in the event of any such transfer of any Ownership Interest
in
any Private Certificate that is a Book-Entry Certificate, except with respect
to
the initial transfer of any such Ownership Interest by the Depositor, such
transfer shall be required to be made in reliance upon Rule 144A under the
1933
Act, and the transferee will be deemed to have made each of the transferee
representations and warranties set forth Exhibit
F-1
hereto
in respect of such interest as if it was evidenced by a Definitive Certificate.
The Certificate Owner of any such Ownership Interest in any such Book-Entry
Certificate desiring to effect such transfer shall, and does hereby agree to,
indemnify the Trustee and the Depositor against any liability that may result
if
the transfer is not so exempt or is not made in accordance with such federal
and
state laws.
Notwithstanding
the foregoing, no certification or Opinion of Counsel described in this
Section
5.02(b)
will be
required in connection with the transfer, on the Closing Date, of any Class
R
Certificate by the Depositor to an “accredited investor” within the meaning of
Rule 501(d) of the 1933 Act.
(c) (i)No
transfer of a Private Certificate (other than a Class
M-10 Certificate)
or any interest therein shall be made to any Plan, any Person acting, directly
or indirectly, on behalf of any such Plan or any Person acquiring such Private
Certificates with “plan assets” (within the meaning of the Department of Labor
regulation promulgated at 29 C. F. R. § 2510.3-101 (“Plan
Assets”))
of a
Plan, as certified by such transferee in the form of Exhibit
G,
unless
the Trustee is provided with an Opinion of Counsel acceptable to and in form
and
substance satisfactory to the Depositor, the Trustee and the Servicer to the
effect that the purchase and holding of such Private Certificates is permissible
under applicable law, will not constitute or result in any non-exempt prohibited
transaction under Section 406 of ERISA or Section 4975 of the Code (or
comparable provisions of any subsequent enactments) and will not subject the
Depositor, the Servicer, the Trustee or the Trust Fund to any obligation or
liability (including obligations or liabilities under ERISA or Section 4975
of
the Code) in addition to those undertaken in this Agreement, which Opinion
of
Counsel shall not be an expense of the Depositor, the Servicer, the Trustee
or
the Trust Fund.
(ii) In
the
case of a Class A Certificate, Class M-1 Certificate, Class M-2 Certificate,
Class M-3 Certificate, Class M-4 Certificate, Class M-5 Certificate, Class
M-6
Certificate, Class M-7 Certificate, Class M-8 Certificate, Class M-9 Certificate
or Class M-10 Certificate, each
beneficial owner of such a Certificate or any interest therein shall be deemed
to have represented, by virtue of its acquisition or holding of such Certificate
or any interest therein, that either (A) it is not a Plan or using Plan Assets,
(B) it has acquired and is holding such Certificate in reliance on the
Underwriters’ Exemption, and that it understands that there are certain
conditions to the availability of the Underwriters’ Exemption, including that
such Certificate must be rated, at the time of purchase, not lower than “BBB-”
(or its equivalent) by Fitch, S&P or Xxxxx’x and the Certificates are so
rated, that it is an accredited investor as defined in Rule 501(a)(1) of
Regulation D of the Securities Act of 1933, as amended, and that it will obtain
a representation from any transferee that such transferee is an accredited
investor, or (C)(1) it is an insurance company, (2) the source of funds used
to
acquire or hold such Certificate or any interest therein is an “insurance
company general account,” as such term is defined in Prohibited
Transaction Class Exemption (“PTCE”)
95-60,
and (3) the conditions in Sections I and III of PTCE 95-60 have been
satisfied.
(iii) Neither
a
certification nor an Opinion of Counsel shall be required in connection with
(A)
the initial transfer of any such Certificate by the Depositor to an Affiliate
of
the Depositor, (B) the transfer of any such Certificate to the issuer under
the
Indenture or the indenture trustee under the Indenture or (C) a transfer of
any
such Certificate from the issuer under the Indenture or the indenture trustee
under the Indenture to the Depositor or an Affiliate of the Depositor (in which
case such transferee shall be deemed to have represented that it is not
purchasing with Plan Assets) and the Trustee shall be entitled to conclusively
rely upon a representation (which, upon the request of the Trustee, shall be
a
written representation) from the Depositor of the status of such transferee
as
an affiliate of the Depositor.
(iv) If
any
Certificate or any interest therein is acquired or held in violation of the
provisions of this Section 5.02(c), the next preceding permitted beneficial
owner will be treated as the beneficial owner of that Certificate retroactive
to
the date of transfer to the purported beneficial owner. Any
purported beneficial owner whose acquisition or holding of any such Certificate
or any interest therein was effected in violation of the provisions of this
Section 5.02(c) shall indemnify and hold harmless the Depositor, the Servicer,
the Trustee and the Trust Fund from and against any and all liabilities, claims,
costs or expenses incurred by those parties as a result of that acquisition
or
holding.
(d) (i)
Each
Person who has or who acquires any Ownership Interest in a Residual Certificate
shall be deemed by the acceptance or acquisition of such Ownership Interest
to
have agreed to be bound by the following provisions and to have irrevocably
authorized the Trustee or its designee under clause
(iii)(A)
below to
deliver payments to a Person other than such Person and to negotiate the terms
of any mandatory sale under clause
(iii)(B)
below
and to execute all instruments of Transfer and to do all other things necessary
in connection with any such sale. The rights of each Person acquiring any
Ownership Interest in a Residual Certificate are expressly subject to the
following provisions:
(A) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall be a Permitted Transferee and shall promptly notify the Trustee of any
change or impending change in its status as a Permitted Transferee.
(B) In
connection with any proposed Transfer of any Ownership Interest in a Residual
Certificate, the Trustee shall require delivery to it, and shall not register
the Transfer of any Residual Certificate until its receipt of, an affidavit
and
agreement (a “Transfer
Affidavit and Agreement,”
in
the
form attached hereto as Exhibit
F-2)
from
the proposed Transferee, in form and substance satisfactory to the Trustee,
representing and warranting, among other things, that such Transferee is a
Permitted Transferee, that it is not acquiring its Ownership Interest in the
Residual Certificate that is the subject of the proposed Transfer as a nominee,
trustee or agent for any Person that is not a Permitted Transferee, that for
so
long as it retains its Ownership Interest in a Residual Certificate, it will
endeavor to remain a Permitted Transferee, and that it has reviewed the
provisions of this Section
5.02(d)
and
agrees to be bound by them.
(C) Notwithstanding
the delivery of a Transfer Affidavit and Agreement by a proposed Transferee
under clause
(B)
above,
if a Responsible Officer of the Trustee who is assigned to this transaction
has
actual knowledge that the proposed Transferee is not a Permitted Transferee,
no
Transfer of an Ownership Interest in a Residual Certificate to such proposed
Transferee shall be effected.
(D) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall agree (x) to require a Transfer Affidavit and Agreement in the form
attached hereto as Exhibit
F-2
from any
other Person to whom such Person attempts to transfer its Ownership Interest
in
a Residual Certificate and (y) not to transfer its Ownership Interest unless
it
provides a Transferor Affidavit (in the form attached hereto as Exhibit
F-2)
to the
Trustee stating that, among other things, it has no actual knowledge that such
other Person is not a Permitted Transferee.
(E) Each
Person holding or acquiring an Ownership Interest in a Residual Certificate,
by
purchasing an Ownership Interest in such Certificate, agrees to give the Trustee
written notice that it is a “pass-through interest holder” within the meaning of
temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately upon
acquiring an Ownership Interest in a Residual Certificate, if it is, or is
holding an Ownership Interest in a Residual Certificate on behalf of, a
“pass-through interest holder.”
(ii) The
Trustee will register the Transfer of any Residual Certificate only if it shall
have received the Transfer Affidavit and Agreement and all of such other
documents as shall have been reasonably required by the Trustee as a condition
to such registration. In addition, no Transfer of a Residual Certificate shall
be made unless the Trustee shall have received a representation letter from
the
Transferee of such Certificate to the effect that such Transferee is a Permitted
Transferee.
(iii) (A)If
any
purported Transferee shall become a Holder of a Residual Certificate in
violation of the provisions of this Section
5.02(d),
then
the last preceding Permitted Transferee shall be restored, to the extent
permitted by law, to all rights as holder thereof retroactive to the date of
registration of such Transfer of such Residual Certificate. The Trustee shall
be
under no liability to any Person for any registration of Transfer of a Residual
Certificate that is in fact not permitted by this Section
5.02(d)
or for
making any payments due on such Certificate to the holder thereof or for taking
any other action with respect to such holder under the provisions of this
Agreement.
(B) If
any
purported Transferee shall become a holder of a Residual Certificate in
violation of the restrictions in this Section
5.02(d)
and to
the extent that the retroactive restoration of the rights of the holder of
such
Residual Certificate as described in clause
(iii)(A)
above
shall be invalid, illegal or unenforceable, then the Trustee shall have the
right, but not the obligation, without notice to the holder or any prior holder
of such Residual Certificate, to sell such Residual Certificate to a purchaser
selected by the Trustee on such terms as the Trustee may choose. Such purported
Transferee shall promptly endorse and deliver each Residual Certificate in
accordance with the instructions of the Trustee. Such purchaser may be the
Trustee itself or any Affiliate of the Trustee. The proceeds of such sale,
net
of the commissions (which may include commissions payable to the Trustee or
its
Affiliates), expenses and taxes due, if any, will be remitted by the Trustee
to
such purported Transferee. The terms and conditions of any sale under this
clause
(iii)(B)
shall be
determined in the sole discretion of the Trustee, and the Trustee shall not
be
liable to any Person having an Ownership Interest in a Residual Certificate
as a
result of its exercise of such discretion.
(iv) The
Trustee shall make available to the Internal Revenue Service and those Persons
specified by the REMIC Provisions all information necessary to compute any
tax
imposed (A) as a result of the Transfer of an Ownership Interest in a Residual
Certificate to any Person who is a Disqualified Organization, including the
information described in Treasury regulations sections 1.860D-1(b)(5) and
1.860E-2(a)(5) with respect to the “excess inclusions” of such Residual
Certificate and (B) as a result of any regulated investment company, real estate
investment trust, common trust fund, partnership, trust estate or organization
described in Section 1381 of the Code that holds an Ownership Interest in a
Residual Certificate having as among its record holders at any time any Person
which is a Disqualified Organization. Reasonable compensation for providing
such
information may be accepted by the Trustee.
(v) The
provisions of this Section
5.02(d)
set
forth prior to this subsection
(v)
may be
modified, added to or eliminated, provided that there shall have been delivered
to the Trustee at the expense of the party seeking to modify, add to or
eliminate any such provision the following:
(A) written
notification from each Rating Agency to the effect that the modification,
addition to or elimination of such provisions will not cause such Rating Agency
to downgrade its then-current ratings of any Class of Certificates;
and
(B) an
Opinion of Counsel, in form and substance satisfactory to the Trustee, to the
effect that such modification of, addition to or elimination of such provisions
will not cause any Trust REMIC to cease to qualify as a REMIC and will not
cause
any Trust REMIC to be subject to an entity-level tax caused by the Transfer
of
any Residual Certificate to a Person that is not a Permitted Transferee or
a
Person other than the prospective transferee to be subject to a REMIC-tax caused
by the Transfer of a Residual Certificate to a Person that is not a Permitted
Transferee.
(e) Subject
to the preceding subsections, upon surrender for registration of transfer of
any
Certificate at any office or agency of the Trustee maintained for such purpose
pursuant to Section
8.12,
the
Trustee shall execute, authenticate and deliver, in the name of the designated
Transferee or Transferees, one or more new Certificates of the same Class of
a
like aggregate Percentage Interest.
(f) At
the
option of the Holder thereof, any Certificate may be exchanged for other
Certificates of the same Class with authorized denominations and a like
aggregate Percentage Interest, upon surrender of such Certificate to be
exchanged at any office or agency of the Trustee maintained for such purpose
pursuant to Section
8.12.
Whenever any Certificates are so surrendered for exchange, the Trustee shall
execute, authenticate and deliver, the Certificates which the Certificateholder
making the exchange is entitled to receive. Every Certificate presented or
surrendered for transfer or exchange shall (if so required by the Trustee)
be
duly endorsed by, or be accompanied by a written instrument of transfer in
the
form satisfactory to the Trustee duly executed by, the Holder thereof or his
attorney duly authorized in writing. In addition, with respect to each Class
R
Certificate, the Holder thereof may exchange, in the manner described above,
such Class R Certificate for two separate Certificates, each representing such
Holder’s respective Percentage Interest in the Class R-I Interest and the Class
R-II Interest, respectively, in each case that was evidenced by the Class R
Certificate being exchanged.
(g) No
service charge to the Certificateholders shall be made for any transfer or
exchange of Certificates, but the Trustee may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates.
(h) All
Certificates surrendered for transfer and exchange shall be canceled and
destroyed by the Trustee in accordance with its customary
procedures.
SECTION
5.03 Mutilated,
Destroyed, Lost or Stolen Certificates.
If (i)
any mutilated Certificate is surrendered to the Trustee, or the Trustee receives
evidence to its satisfaction of the destruction, loss or theft of any
Certificate, and (ii) there is delivered to the Trustee such security or
indemnity as may be required by it to save it harmless, then, in the absence
of
actual knowledge by the Trustee that such Certificate has been acquired by
a
bona fide purchaser, the Trustee shall execute, authenticate and deliver in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of the same Class and of like denomination and
Percentage Interest but bearing a number not contemporaneously outstanding.
Upon
the issuance of any new Certificate under this Section, the Trustee may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses (including the
fees and expenses of the Trustee) connected therewith. Any replacement
Certificate issued pursuant to this Section shall constitute complete and
indefeasible evidence of ownership in the applicable REMIC created hereunder,
as
if originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
SECTION
5.04 Persons
Deemed Owners.
Prior
to due presentation of a Certificate for registration of transfer, the
Depositor, the Servicer, the Trustee and any agent of any of them may treat
the
Person in whose name any Certificate is registered as the owner of such
Certificate for the purpose of receiving distributions pursuant to Section
4.01
and for
all other purposes whatsoever, and none of the Depositor, the Servicer, the
Trustee or any agent of any of them shall be affected by notice to the
contrary.
SECTION
5.05 Certain
Available Information.
On or
prior to the date of the first sale of any Private Certificate to an Independent
third party, the Depositor shall provide to the Trustee a copy of any private
placement memorandum or other disclosure document used by the Depositor in
connection with the offer and sale of such Certificates. In addition, if any
such private placement memorandum or disclosure document is revised, amended
or
supplemented at any time following the delivery thereof to the Trustee, the
Depositor promptly shall inform the Trustee of such event and shall deliver
to
the Trustee a copy of the private placement memorandum or disclosure document,
as revised, amended or supplemented. The Trustee shall maintain at its Corporate
Trust Office and shall make available free of charge during normal business
hours for review by any Holder of a Certificate, a Certificate Owner or any
Person identified to the Trustee as a prospective transferee of a Certificate,
originals or copies of the following items: (i) in the case of a Holder, a
Certificate Owner or prospective transferee of a Private Certificate, the
related private placement memorandum or other disclosure document relating
to
such Class of Certificates, in the form most recently provided to the Trustee;
and (ii) in all cases, (A) this Agreement and any amendments hereof entered
into pursuant to Section
13.01,
(B) all
monthly statements required to be delivered to Certificateholders of the
relevant Class pursuant to Section
4.02
since
the Closing Date, and all other notices, reports, statements and written
communications delivered to the Certificateholders of the relevant Class
pursuant to this Agreement since the Closing Date, (C) all certifications
delivered by a Responsible Officer of the Trustee since the Closing Date
pursuant to Section
10.01(h),
(D) any
and all Officers’ Certificates delivered to the Trustee by the Servicer since
the Closing Date to evidence the Servicer’s determination that any Advance or
Servicing Advance was, or if made, would be a Nonrecoverable Advance or
Nonrecoverable Servicing Advance, respectively, and (E) any and all Officers’
Certificates delivered to the Trustee by the Servicer since the Closing Date
pursuant to Section
4.04(a).
Copies
and mailing of any and all of the foregoing items will be available from the
Trustee upon request at the expense of the Person requesting the
same.
ARTICLE
VI
THE
DEPOSITOR AND THE SERVICER
SECTION
6.01 Respective
Liabilities of the Depositor and the Servicer.
The
Depositor and the Servicer each shall be liable in accordance herewith only
to
the extent of the obligations specifically imposed by this Agreement upon them
in their respective capacities as Depositor and Servicer and undertaken
hereunder by the Depositor and the Servicer herein.
SECTION
6.02 Merger
or Consolidation of the Depositor or the Servicer.
Subject
to the following paragraph, the Depositor will keep in full effect its
existence, rights and franchises as a corporation under the laws of the
jurisdiction of its incorporation. Subject to the following paragraph, the
Servicer will keep in full effect its existence, rights and franchises as a
corporation under the laws of the jurisdiction of its incorporation. The
Depositor and the Servicer each will obtain and preserve its qualification
to do
business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage Loans
and to perform its respective duties under this Agreement.
The
Depositor or the Servicer may be merged or consolidated with or into any Person,
or transfer all or substantially all of its assets to any Person, in which
case
any Person resulting from any merger or consolidation to which the Depositor
or
the Servicer shall be a party, or any Person succeeding to the business of
the
Depositor or the Servicer, shall be the successor of the Depositor or the
Servicer, as the case may be, hereunder, without the execution or filing of
any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding; provided,
however,
that
the successor or surviving Person to the Servicer shall be qualified to service
mortgage loans on behalf of Xxxxxx Xxx or Xxxxxxx Mac; and provided further
that
the Rating Agencies’ ratings of the Class A Certificates and the Mezzanine
Certificates in effect immediately prior to such merger or consolidation will
not be qualified, reduced or withdrawn as a result thereof (as evidenced by
a
letter to such effect from the Rating Agencies).
SECTION
6.03 Limitation
on Liability of the Depositor, the Servicer and Others.
(a)
Subject
to Subsection
6.03(b),
the
Servicer (except the Trustee if it is required to succeed the Servicer
hereunder) indemnifies and holds each Certificateholder harmless against any
and
all claims, losses, penalties, fines, forfeitures, reasonable legal fees and
related costs, judgments, and any other costs, fees and expenses that any
Certificateholder may sustain in any way related to the failure of the Servicer
to perform its duties and service the Mortgage Loans in compliance with the
terms of this Agreement. The Servicer shall immediately notify the Trustee
for
further notice to each Certificateholder if a claim is made that may result
in
such claims, losses, penalties, fines, forfeitures, legal fees or related costs,
judgments, or any other costs, fees and expenses, and the Servicer shall assume
the defense of any such claim and pay all expenses in connection therewith,
including reasonable counsel fees, and promptly pay, discharge and satisfy
any
judgment or decree which may be entered against the Certificateholder in respect
of such claim. The provisions of this Section 6.03 shall survive the termination
of this Agreement and the payment of the outstanding Certificates.
(b) None
of
the Depositor, the Servicer or any of the directors, officers, employees or
agents of the Depositor or the Servicer shall be under any liability to the
Trustee, Trust Fund or the Certificateholders for any action taken or for
refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment; provided,
however,
that
this provision shall not protect the Depositor, the Servicer or any such person
against any breach of warranties, representations or covenants made herein,
or
against any specific liability imposed on the Servicer pursuant hereto, or
against any liability which would otherwise be imposed by reason of willful
misfeasance, bad faith or negligence in the performance of duties or by reason
of reckless disregard of obligations and duties hereunder. The Depositor, the
Servicer and any director, officer, employee or agent of the Depositor or the
Servicer may rely in good faith on any document of any kind which, prima facie,
is properly executed and submitted by any Person respecting any matters arising
hereunder. The Depositor, the Servicer and any director, officer, employee
or
agent of the Depositor or the Servicer shall be indemnified by the Trust Fund
and held harmless against any loss, liability or expense (including reasonable
legal fees and disbursements of counsel) incurred on their part that may be
sustained in connection with, arising out of, or related to, any claim or legal
action (including any pending or threatened claim or legal action) relating
to
this Agreement or the Certificates, other than any loss, liability or expense
relating to any specific Mortgage Loan or Mortgage Loans (except as any such
loss, liability or expense shall be otherwise reimbursable pursuant to this
Agreement) or any loss, liability or expense incurred by reason of willful
misfeasance, bad faith or negligence in the performance of duties hereunder
or
by reason of reckless disregard of obligations and duties hereunder. Neither
the
Depositor nor the Servicer shall be under any obligation to appear in, prosecute
or defend any legal action that is not incidental to its duties under this
Agreement and that in its opinion may involve it in any expense or liability;
provided,
however,
that
the Depositor or the Servicer may in its discretion undertake any such action
which it may deem necessary or desirable with respect to this Agreement and
the
rights and duties of the parties hereto and the interests of the
Certificateholders hereunder. In such event, the legal expenses and costs of
such action and any liability resulting therefrom shall be expenses, costs
and
liabilities of the Trust Fund, and the Depositor or the Servicer shall be
entitled to be reimbursed therefor from the Custodial Account as and to the
extent provided in Section
3.11,
any
such right of reimbursement being prior to the rights of the Certificateholders
to receive any amount in the Custodial Account. Nothing in this Subsection
6.03(b)
shall
affect the Servicer’s obligation to supervise, or to take such actions as are
necessary to ensure, the servicing and administration of the Mortgage Loans
pursuant to Subsection
3.01(a).
SECTION
6.04 Limitation
on Resignation of the Servicer.
(a)
Subject
to the provisions of Section
7.01
and
Section
6.02,
the
Servicer shall not resign from the obligations and duties hereby imposed on
it
except (i) upon determination that the performance of its obligations or duties
hereunder are no longer permissible under applicable law or are in material
conflict by reason of applicable law with any other activities carried on by
it
or its subsidiaries or Affiliates, the other activities of the Servicer so
causing such a conflict being of a type and nature carried on by the Servicer
or
its subsidiaries or Affiliates at the date of this Agreement or (ii) upon
satisfaction of the following conditions: (a) the Servicer has proposed a
successor servicer to the Trustee in writing and such proposed successor
servicer is reasonably acceptable to the Depositor and the Trustee and (b)
each
Rating Agency shall have delivered a letter to the Trustee prior to the
appointment of the successor servicer stating that the proposed appointment
of
such successor servicer as Servicer hereunder will not result in the reduction
or withdrawal of the then current rating of the Certificates; provided, however,
that no such resignation by the Servicer shall become effective until such
successor servicer or, in the case of (i) above, the Trustee shall have assumed
the Servicer’s responsibilities and obligations hereunder or the Trustee shall
have designated, a successor servicer in accordance with Section
7.02.
Any
such resignation shall not relieve the Servicer of responsibility for any of
the
obligations specified in Sections 7.01 and 7.02 as obligations that survive
the
resignation or termination of the Servicer. Any such determination permitting
the resignation of the Servicer pursuant to clause (i) above shall be evidenced
by an Opinion of Counsel to such effect delivered to the Trustee.
(b) Except
as
expressly provided herein, the Servicer shall not assign or transfer any of
its
rights, benefits or privileges hereunder to any other Person, or delegate to
or
subcontract with, or authorize or appoint any other Person to perform any of
the
duties, covenants or obligations to be performed by the Servicer hereunder.
The
foregoing prohibition on assignment shall not prohibit the Servicer from
designating a Sub-Servicer as payee of any indemnification amount payable to
the
Servicer hereunder; provided,
however,
that as
provided in Section
3.06
hereof,
no Sub-Servicer shall be a third-party beneficiary hereunder and the parties
hereto shall not be required to recognize any Sub-Servicer as an indemnitee
under this Agreement.
SECTION
6.05 Rights
of the Depositor in Respect of the Servicer.
The
Servicer shall afford (and any Sub-Servicing Agreement shall provide that each
Sub-Servicer shall afford) the Depositor and the Trustee, upon reasonable
notice, during normal business hours, access to all records maintained by the
Servicer (and any such Sub-Servicer) in respect of the Servicer’s rights and
obligations hereunder and access to officers of the Servicer (and those of
any
such Sub-Servicer) responsible for such obligations. Upon request, the Servicer
shall furnish to the Depositor and the Trustee its (and any such Sub-Servicer’s)
most recent financial statements and such other information relating to the
Servicer’s capacity to perform its obligations under this Agreement as it
possesses (and that any such Sub-Servicer possesses). To the extent such
information is not otherwise available to the public, the Depositor and the
Trustee shall not disseminate any information obtained pursuant to the preceding
two sentences without the Servicer’s written consent, except as required
pursuant to this Agreement or to the extent that it is appropriate to do so
(i)
in working with legal counsel, auditors, taxing authorities or other
governmental agencies, (ii) pursuant to any law, rule, regulation, order,
judgment, writ, injunction or decree of any court or governmental authority
having jurisdiction over the Depositor and the Trustee or the Trust Fund, and
in
any case, the Depositor or the Trustee, (iii) in disclosure of any and all
information that is or becomes publicly known, or information obtained by the
Trustee from sources other than the Depositor or the Servicer, (iv) in
disclosure as required pursuant to this Agreement or (v) in disclosure of any
and all information (A) in any preliminary or final offering circular,
registration statement or contract or other document pertaining to the
transactions contemplated by the Agreement approved in advance by the Servicer
or (B) to any affiliate, independent or internal auditor, agent, employee or
attorney of the Trustee having a need to know the same, provided that the
Trustee advises such recipient of the confidential nature of the information
being disclosed and uses its best efforts to assure the confidentiality of
any
such disseminated non-public information. The Depositor may, but is not
obligated to, enforce the obligations of the Servicer under this Agreement
and
may, but is not obligated to, perform, or cause a designee to perform, any
defaulted obligation of the Servicer under this Agreement or exercise the rights
of the Servicer under this Agreement; provided that the Servicer shall not
be
relieved of any of its obligations under this Agreement by virtue of such
performance by the Depositor or its designee. The Depositor shall not have
any
responsibility or liability for any action or failure to act by the Servicer
and
is not obligated to supervise the performance of the Servicer under this
Agreement or otherwise.
ARTICLE
VII
DEFAULT
SECTION
7.01 Servicer
Events of Default.
(a)“Servicer
Event of Default,”
wherever used herein, means any one of the following events:
(i) any
failure by the Servicer to remit to the Trustee for distribution to the
Certificateholders any payment (other than an Advance required to be made from
its own funds on any Servicer Remittance Date pursuant to Section
4.03)
required to be made under the terms of the Certificates and this Agreement
which
continues unremedied for a period of 5 Business Days after the date upon which
written notice of such failure, requiring the same to be remedied, shall have
been given to the Servicer by the Depositor or the Trustee (in which case notice
shall be provided by telecopy), or to the Servicer, the Depositor and the
Trustee by the Holders of Certificates entitled to at least 25% of the Voting
Rights; or
(ii) any
failure on the part of the Servicer duly to observe or perform in any material
respect any other of the covenants or agreements on the part of the Servicer
contained in this Agreement, or the breach by the Servicer of any representation
and warranty contained in Section
2.05,
which
continues unremedied for a period of 30 days (or if such failure or breach
cannot be remedied within 30 days, then such remedy shall have been commenced
within 30 days and diligently pursued thereafter; provided,
however,
that in
no event shall such failure or breach be allowed to exist for a period of
greater than 90 days) or 15 days in the case of a failure to pay the premium
for
any insurance policy required to be maintained under this Agreement after the
earlier of (i) the date on which written notice of such failure, requiring
the same to be remedied, shall have been given to the Servicer by the Depositor
or the Trustee, or to the Servicer, the Depositor and the Trustee by the Holders
of Certificates entitled to at least 25% of the Voting Rights and
(ii) actual knowledge of such failure by a Servicing Officer;
or
(iii) a
decree
or order of a court or agency or supervisory authority having jurisdiction
in
the premises in an involuntary case under any present or future federal or
state
bankruptcy, insolvency or similar law or the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt, marshalling
of
assets and liabilities or similar proceeding, or for the winding-up or
liquidation of its affairs, shall have been entered against the Servicer and
such decree or order shall have remained in force undischarged or unstayed
for a
period of 90 days; or
(iv) the
Servicer shall consent to the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings of or relating to it or of or relating to
all
or substantially all of its property; or
(v) the
Servicer shall admit in writing its inability to pay its debts generally as
they
become due, file a petition to take advantage of any applicable insolvency
or
reorganization statute, make an assignment for the benefit of its creditors,
or
voluntarily suspend payment of its obligations; or
(vi) any
failure by the Servicer of the Servicer Termination Test; or
(vii) any
failure of the Servicer to make any Advance on any Servicer Remittance Date
required to be made from its own funds pursuant to Section
4.03
which
continues unremedied until 12:00 p.m. New York time on the Business Day
immediately following the Servicer Remittance Date.
If
a
Servicer Event of Default described in clauses
(i)
through
(vi)
of this
Section shall occur, then, and in each and every such case, so long as such
Servicer Event of Default shall not have been remedied, the Trustee may, and
at
the written direction of the Holders of Certificates entitled to at least 66%
of
Voting Rights, the Trustee shall, by notice in writing to the Servicer and
to
the Depositor, terminate all of the rights and obligations of the Servicer
in
its capacity as Servicer under this Agreement, to the extent permitted by law,
in and to the Mortgage Loans and the proceeds thereof. If a Servicer Event
of
Default described in clause
(vii)
hereof
shall occur, the Trustee shall, by notice in writing to the Servicer, terminate
all of the rights and obligations of the Servicer in its capacity as Servicer
under this Agreement in and to the Mortgage Loans and the proceeds thereof
and
the Trustee as successor Servicer, or another successor servicer appointed
in
accordance with Section
7.02,
shall
immediately make such Advance. On or after the receipt by the Servicer of such
written notice, all authority and power of the Servicer under this Agreement,
whether with respect to the Certificates (other than as a Holder of any
Certificate) or the Mortgage Loans or otherwise, shall pass to and be vested
in
the Trustee pursuant to and under this Section, and, without limitation, the
Trustee is hereby authorized and empowered, as attorney-in-fact or otherwise,
to
execute and deliver, on behalf of and at the expense of the Servicer, any and
all documents and other instruments and to do or accomplish all other acts
or
things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment
of
the Mortgage Loans and related documents, or otherwise, provided,
however,
the
parties acknowledge that notwithstanding the preceding sentence there may be
a
transition period, not to exceed 90 days, in order to effect the transfer of
the
Servicing obligations to the Trustee or other successor servicer. The Servicer
agrees promptly (and in any event no later than ten Business Days subsequent
to
such notice) to provide the Trustee with all documents and records requested
by
it to enable it to assume the Servicer’s functions under this Agreement, and to
cooperate with the Trustee in effecting the termination of the Servicer’s
responsibilities and rights under this Agreement, including, without limitation,
the transfer within one Business Day to the Trustee for administration by it
of
all cash amounts which at the time shall be or should have been credited by
the
Servicer to the Custodial Account held by or on behalf of the Servicer, the
Certificate Account or any REO Account or Servicing Account held by or on behalf
of the Servicer or thereafter be received with respect to the Mortgage Loans
or
any REO Property serviced by the Servicer (provided,
however,
that
the Servicer shall continue to be entitled to receive all amounts accrued or
owing to it under this Agreement on or prior to the date of such termination,
whether in respect of Advances, Servicing Advances or otherwise, and shall
continue to be entitled to the benefits of Section
6.03,
notwithstanding any such termination, with respect to events occurring prior
to
such termination). For purposes of this Section
7.01,
the
Trustee shall not be deemed to have knowledge of a Servicer Event of Default
unless a Responsible Officer of the Trustee assigned to and working in the
Trustee’s Corporate Trust Office has actual knowledge thereof or unless written
notice of any event which is in fact such a Servicer Event of Default is
received by the Trustee and such notice references the Certificates, the Trust
Fund or this Agreement.
SECTION
7.02 Trustee
to Act; Appointment of Successor.
(a)
(1) On
and after the time the Servicer receives a notice of termination in accordance
with Section
13.05
hereof,
the Trustee, or such other person appointed by the Trustee pursuant to this
paragraph, shall separately assume and become the successor in all respects
to
the Servicer in its capacity as Servicer under this Agreement and the
transactions set forth or provided for herein, and all the responsibilities,
duties and liabilities relating thereto and arising thereafter shall be assumed
by the Trustee (except for any representations or warranties of the Servicer
under this Agreement, the responsibilities, duties and liabilities contained
in
Section
2.05
and the
obligation to deposit amounts in respect of losses pursuant to Section
3.12)
by the
terms and provisions hereof including, without limitation, the Servicer’s
obligations to make Advances pursuant to Section
4.03;
provided,
however,
that if
the Trustee is prohibited by law or regulation from obligating itself to make
advances regarding delinquent mortgage loans, then the Trustee shall not be
obligated to make Advances pursuant to Section
4.03;
and
provided further, that any failure to perform such duties or responsibilities
caused by the Servicer’s failure to provide information required by Section
7.01
shall
not be considered a default by the Trustee as successor to the Servicer
hereunder. As compensation therefor, the Trustee shall be entitled to the
Servicing Fee and all funds relating to the Mortgage Loans to which the Servicer
would have been entitled if it had continued to act hereunder. Notwithstanding
the above and subject to Section
7.02(a)(2)
below,
the Trustee may, if it shall be unwilling to so act, or shall, if it is unable
to so act or if it is prohibited by law from making advances regarding
delinquent mortgage loans or if the Holders of Certificates entitled to at
least
66% of the Voting Rights so request in writing to the Trustee promptly appoint
or petition a court of competent jurisdiction to appoint, a Xxxxxx Xxx or
Xxxxxxx Mac approved mortgage loan servicing institution acceptable to each
Rating Agency without qualification, withdrawal or downgrading of the ratings
then assigned to any of the Certificates and having a net worth of not less
than
$10,000,000, as the successor to the Servicer under this Agreement in the
assumption of all or any part of the responsibilities, duties or liabilities
of
the Servicer under this Agreement.
All
Servicing Transfer Costs shall be paid by the predecessor Servicer upon
presentation of reasonable documentation of such costs (provided, that if the
Trustee is the predecessor Servicer by reason of this Section
7.02,
such
costs shall be paid by the Servicer preceding the Trustee as successor
servicer), and if such predecessor or initial Servicer, as applicable, defaults
in its obligation to pay such costs, such costs shall be paid by the successor
Servicer or the Trustee (in which case the successor Servicer or the Trustee,
as
applicable, shall be entitled to reimbursement therefor from the assets of
the
Trust Fund).
(2) No
appointment of a successor to the Servicer under this Agreement shall be
effective until the assumption by the successor of all of the Servicer’s
responsibilities, duties and liabilities hereunder. In connection with such
appointment and assumption described herein, the Trustee may make such
arrangements for the compensation of such successor out of payments on Mortgage
Loans as it and such successor shall agree; provided,
however,
that no
such compensation shall be in excess of that permitted the Servicer as such
hereunder. The Depositor, the Trustee and such successor shall take such action,
consistent with this Agreement, as shall be necessary to effectuate any such
succession. Pending appointment of a successor to the Servicer under this
Agreement, the Trustee shall act in such capacity as hereinabove
provided.
SECTION
7.03 Notification
to Certificateholders.
(a)
Upon any
termination of the Servicer pursuant to Section
7.01
above or
any appointment of a successor to the Servicer pursuant to Section
7.02
above,
the Trustee shall give prompt written notice thereof to Certificateholders
at
their respective addresses appearing in the Certificate Register.
(b) Not
later
than the later of 60 days after the occurrence of any event, which constitutes
or which, with notice or lapse of time or both, would constitute a Servicer
Event of Default or five days after a Responsible Officer of the Trustee becomes
aware of the occurrence of such an event, the Trustee shall transmit by mail
to
all Holders of Certificates notice of each such occurrence, unless such default
or Servicer Event of Default shall have been cured or waived.
SECTION
7.04 Waiver
of Servicer Events of Default.
Holders
representing at least 66% of the Voting Rights evidenced by all Classes of
Certificates affected by any default or Servicer Event of Default hereunder
may
waive such default or Servicer Event of Default; provided,
however,
that a
default or Servicer Event of Default under clause
(i)
or
(vii)
of
Section
7.01
may be
waived only by all of the Holders of the Regular Certificates. Upon any such
waiver of a default or Servicer Event of Default, such default or Servicer
Event
of Default shall cease to exist and shall be deemed to have been remedied for
every purpose hereunder. No such waiver shall extend to any subsequent or other
default or Servicer Event of Default or impair any right consequent thereon
except to the extent expressly so waived.
ARTICLE
VIII
CONCERNING
THE TRUSTEE
SECTION
8.01 Duties
of Trustee.
(a)
The
Trustee, prior to the occurrence of a Servicer Event of Default and after the
curing of all Servicer Events of Default which may have occurred, undertakes
to
perform such duties and only such duties as are specifically set forth in this
Agreement. During a Servicer Event of Default (which has not been cured or
waived), the Trustee shall exercise such of the rights and powers vested in
it
by this Agreement, and use the same degree of care and skill in their exercise
as a prudent person would exercise or use under the circumstances in the conduct
of such person’s own affairs. Any permissive right of the Trustee enumerated in
this Agreement shall not be construed as a duty.
(b) The
Trustee, upon receipt of all resolutions, certificates, statements, opinions,
reports, documents, orders or other instruments furnished to the Trustee which
are specifically required to be furnished pursuant to any provision of this
Agreement, shall examine them to determine whether they conform on their face
to
the requirements of this Agreement. If any such instrument is found not to
conform on its face to the requirements of this Agreement in a material manner,
the Trustee shall take such action as it deems appropriate to have the
instrument corrected, and if the instrument is not corrected to its
satisfaction, will provide notice thereof to the
Certificateholders.
(c) No
provision of this Agreement shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act or
its
own misconduct; provided,
however,
that:
(i) Prior
to
the occurrence of a Servicer Event of Default, and after the curing of all
such
Servicer Events of Default which may have occurred, the duties and obligations
of the Trustee shall be determined solely by the express provisions of this
Agreement, the Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this Agreement, no
implied covenants or obligations shall be read into this Agreement against
the
Trustee and, in the absence of bad faith on the part of the Trustee, the Trustee
may conclusively rely, as to the truth of the statements and the correctness
of
the opinions expressed therein, upon any certificates or opinions furnished
to
the Trustee that conform to the requirements of this Agreement;
(ii) The
Trustee shall not be personally liable for an error of judgment made in good
faith by a Responsible Officer or Responsible Officers of the Trustee unless
it
shall be proved that the Trustee was negligent in ascertaining the pertinent
facts; and
(iii) The
Trustee shall not be personally liable with respect to any action taken,
suffered or omitted to be taken by it in good faith in accordance with the
direction of the Holders of Certificates entitled to at least 25% of the Voting
Rights relating to the time, method and place of conducting any proceeding
for
any remedy available to the Trustee or exercising any trust or power conferred
upon it, under this Agreement.
(d) The
Trustee shall timely pay, from its own funds, the amount of any and all federal,
state and local taxes imposed on the Trust Fund or its assets or transactions
including, without limitation, (A) “prohibited transaction” penalty taxes as
defined in Section 860F of the Code, if, when and as the same shall be due
and
payable, (B) any tax on contributions to a Trust REMIC after the Closing Date
imposed by Section 860G(d) of the Code and (C) any tax on “net income from
foreclosure property” as defined in Section 860G(c) of the Code, but only if
such taxes arise out of a breach by the Trustee of its obligations hereunder,
which breach constitutes negligence or misconduct of the Trustee.
SECTION
8.02 Certain
Matters Affecting the Trustee.
(a)
Except
as otherwise provided in Section 8.01:
(i) The
Trustee may request and conclusively rely upon and shall be fully protected
in
acting or refraining from acting upon any resolution, Officers’ Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other
paper
or document reasonably believed by it to be genuine and to have been signed
or
presented by the proper party or parties;
(ii) The
Trustee may consult with counsel and any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken or suffered
or omitted by it hereunder in good faith and in accordance with such Opinion
of
Counsel;
(iii) The
Trustee shall not be under any obligation to exercise any of the trusts or
powers vested in it by this Agreement or to institute, conduct or defend any
litigation hereunder or in relation hereto at the request, order or direction
of
any of the Certificateholders, pursuant to the provisions of this Agreement,
unless such Certificateholders shall have offered to the Trustee security or
indemnity reasonably satisfactory to it against the costs, expenses and
liabilities which may be incurred therein or thereby; nothing contained herein
shall, however, relieve the Trustee of the obligation, upon the occurrence
of a
Servicer Event of Default (which has not been cured or waived), to exercise
such
of the rights and powers vested in it by this Agreement, and to use the same
degree of care and skill in their exercise as a prudent person would exercise
or
use under the circumstances in the conduct of such person’s own
affairs;
(iv) The
Trustee shall not be personally liable for any action taken, suffered or omitted
by it in good faith and believed by it to be authorized or within the discretion
or rights or powers conferred upon it by this Agreement;
(v) Prior
to
the occurrence of a Servicer Event of Default hereunder and after the curing
of
all Servicer Events of Default which may have occurred, the Trustee shall not
be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or document, unless
requested in writing to do so by the Holders of Certificates entitled to at
least 25% of the Voting Rights; provided,
however,
that if
the payment within a reasonable time to the Trustee of the costs, expenses
or
liabilities likely to be incurred by it in the making of such investigation
is,
in the opinion of the Trustee not reasonably assured to the Trustee by such
Certificateholders, the Trustee may require indemnity reasonably satisfactory
to
it against such expense or liability from such Certificateholders as a condition
to taking any such action;
(vi) The
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents, accountants or attorneys,
and
the Trustee shall not be responsible for any misconduct or negligence on the
part of any agents, accountants or attorneys appointed with due care by it
hereunder;
(vii) The
Trustee shall have no obligation to invest and reinvest any cash held in the
absence of timely and specific written investment direction from the Servicer
or
the Depositor. In no event shall the Trustee be liable for the selection of
investments or for investment losses incurred thereon. The Trustee shall have
no
liability in respect of losses incurred as a result of the liquidation of any
investment incurred as a result of the liquidation of any investment prior
to
its stated maturity or the failure of the Servicer or the Depositor to provide
timely written investment direction; and
(viii) In
order
to comply with its duties under the USA Patriot Act of 2001, the Trustee shall
obtain and verify certain information and documentation from the other parties
to this Agreement including, but not limited to, each such party’s name, address
and other identifying information.
(b) All
rights of action under this Agreement or under any of the Certificates,
enforceable by the Trustee, may be enforced by it without the possession of
any
of the Certificates, or the production thereof at the trial or other proceeding
relating thereto, and any such suit, action or proceeding instituted by the
Trustee shall be brought in the name of the Trustee for the benefit of all
the
Holders of such Certificates, subject to the provisions of this
Agreement.
SECTION
8.03 Trustee
Not Liable for Certificates or Mortgage Loans.
The
recitals contained herein and in the Certificates (other than the signature
of
the Trustee, the authentication of the Certificate Registrar on the
Certificates, the acknowledgments of the Trustee contained in Article
II
and the
representations and warranties of the Trustee in Section
8.13)
shall
be taken as the statements of the Depositor and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations
or
warranties as to the validity or sufficiency of this Agreement (other than
as
specifically set forth with respect to such party in Section
8.13)
or of
the Certificates (other than the signature of the Trustee and authentication
of
the Certificate Registrar on the Certificates) or of any Mortgage Loan or
related document or of MERS or the MERS® System. The Trustee shall not be
accountable for the use or application by the Depositor of any of the
Certificates or of the proceeds of such Certificates, or for the use or
application of any funds paid to the Depositor or the Servicer in respect of
the
Mortgage Loans or deposited in or withdrawn from the Custodial Account by the
Servicer, other than any funds held by or on behalf of the Trustee in accordance
with Section
3.10,
subject
to Section
8.01.
SECTION
8.04 Trustee
May Own Certificates.
The
Trustee in its individual capacity or any other capacity may become the owner
or
pledgee of Certificates with the same rights it would have if it were not
Trustee.
SECTION
8.05 Trustee’s
Fees and Expenses.
(a)
The
Trustee shall withdraw from the Certificate Account on each Distribution Date
and pay to itself the Trustee Fee. The Trustee, or any director, officer,
employee or agent of the Trustee shall be indemnified by the Trust Fund and
held
harmless against any loss, liability or expense (not including expenses,
disbursements and advances incurred or made by the Trustee including the
compensation and the expenses and disbursements of its agents and counsel,
in
the ordinary course of the Trustee’s performance in accordance with the
provisions of this Agreement) incurred by the Trustee in connection with any
Servicer Event of Default (not including expenses, disbursements and advances
incurred or made by the Trustee in its capacity as successor Servicer), default,
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 obligations
and duties under this Agreement or the Cap Contracts, other than any loss,
liability or expense (i) resulting from a breach of the Servicer’s obligations
and duties under this Agreement (for which the Servicer indemnifies pursuant
to
Sections
8.05(b)
and
10.03(b)),
(ii)
for the expenses of preparing and filing Tax Returns pursuant to Section
10.01(d)
or (iii)
any loss, liability or expense incurred by reason of its willful misfeasance,
bad faith or negligence in the performance of its duties hereunder or by reason
of reckless disregard of its respective obligations and duties hereunder. Any
amounts payable to the Trustee, or any director, officer, employee or agent
of
the Trustee in respect of the indemnification provided by this paragraph (a),
or
pursuant to any other right of reimbursement from the Trust Fund that the
Trustee, or any director, officer, employee or agent of the Trustee, may have
hereunder in its capacity as such, may be withdrawn by the Trustee from the
Certificate Account at any time.
(b) The
Servicer agrees to indemnify the Trustee from, and hold it harmless against,
any
loss, liability or expense (including reasonable legal fees and disbursements
of
counsel) resulting from a breach of the Servicer’s obligations and duties under
this Agreement. Such indemnity shall survive the termination or discharge of
this Agreement and the resignation or removal of the Trustee. Any payment
hereunder made by the Servicer to the Trustee shall be from the Servicer’s own
funds, without reimbursement from the Trust Fund therefor.
The
provisions of this Section
8.05
shall
survive the termination of this Agreement or the earlier resignation or removal
of the Trustee.
SECTION
8.06 Eligibility
Requirements for Trustee.
The
Trustee hereunder shall at all times be a corporation or an association (other
than the Depositor, the Seller, the Servicer or any Affiliate of the foregoing)
organized and doing business under the laws of any state or the United States
of
America, authorized under such laws to exercise corporate trust powers, having
a
combined capital and surplus of at least $50,000,000 and subject to supervision
or examination by federal or state authority. If such corporation or association
publishes reports of conditions at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for
the
purposes of this Section the combined capital and surplus of such corporation
or
association shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. Any successor trustee
appointed pursuant to Section
8.07
shall
have a sufficient rating so as to maintain the then-current ratings of the
Certificates. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section
8.07.
SECTION
8.07 Resignation
and Removal of the Trustee.
The
Trustee may at any time resign and be discharged from the trust hereby created
by giving written notice thereof to the Depositor, the Servicer and the
Certificateholders. Upon receiving such notice of resignation of the Trustee,
the Depositor shall promptly appoint a successor trustee by written instrument,
in duplicate, one copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor trustee. A copy of such instrument shall
be delivered to the Certificateholders, the Trustee and the Servicer by the
Depositor. If no successor trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation or removal, the Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
If
at any
time the Trustee shall cease to be eligible in accordance with the provisions
of
Section
8.06
and
shall fail to resign after written request therefor by the Depositor, or if
at
any time the Trustee shall become incapable of acting, or shall be adjudged
bankrupt or insolvent, or a receiver of the Trustee or of its property shall
be
appointed, or any public officer shall take charge or control of the Trustee
or
of its property or affairs for the purpose of rehabilitation, conservation
or
liquidation, then the Depositor may remove the Trustee and appoint a successor
trustee by written instrument, in duplicate, which instrument shall be delivered
to the Trustee so removed and to the successor trustee. A copy of such
instrument shall be delivered to the Certificateholders and the Servicer by
the
Depositor.
The
Holders of Certificates entitled to at least 66% of the Voting Rights may at
any
time remove the Trustee and appoint a successor trustee by written instrument
or
instruments, in triplicate, signed by such Holders or their attorneys-in-fact
duly authorized, one complete set of which instruments shall be delivered to
the
Depositor, one complete set to the Trustee so removed and one complete set
to
the successor so appointed. A copy of such instrument shall be delivered to
the
Certificateholders and the Servicer by the Depositor.
Any
resignation or removal of the Trustee and appointment of a successor trustee
pursuant to any of the provisions of this Section shall not become effective
until acceptance of appointment by the successor trustee as provided in
Section
8.08.
Any
costs associated with removing and replacing the Trustee shall be payable by
the
Trustee being removed or replaced if such Trustee is being removed or replaced
for cause.
SECTION
8.08 Successor
Trustee.
Any
successor trustee appointed as provided in Section
8.07
shall
execute, acknowledge and deliver to the Depositor and to its predecessor trustee
an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor trustee shall become effective and
such successor trustee without any further act, deed or conveyance, shall become
fully vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with the like effect as if originally named as trustee
herein. The predecessor trustee shall deliver to the successor trustee all
Mortgage Files and related documents and statements, as well as all moneys,
held
by it hereunder (other than any Mortgage Files at the time held by a custodian,
which custodian shall become the agent of any successor trustee hereunder),
and
the Depositor and the predecessor trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for more
fully and certainly vesting and confirming in the successor trustee all such
rights, powers, duties and obligations.
No
successor trustee shall accept appointment as provided in this Section unless
at
the time of such acceptance such successor trustee shall be eligible under
the
provisions of Section
8.06
and the
appointment of such successor trustee shall not result in a downgrading of
any
Class of Certificates by either Rating Agency, as evidenced by a letter from
each Rating Agency.
Upon
acceptance of appointment by a successor trustee as provided in this Section,
the Depositor shall mail notice of the succession of such trustee hereunder
to
all Holders of Certificates at their addresses as shown in the Certificate
Register. If the Depositor fails to mail such notice within 10 days after
acceptance of appointment by the successor trustee, the successor trustee shall
cause such notice to be mailed at the expense of the Depositor.
SECTION
8.09 Merger
or Consolidation of Trustee.
Any
corporation or association into which the Trustee may be merged or converted
or
with which it may be consolidated or any corporation or association resulting
from any merger, conversion or consolidation to which the Trustee shall be
a
party, or any corporation or association succeeding to the business of the
Trustee shall be the successor of the Trustee hereunder, provided such
corporation or association shall be eligible under the provisions of
Section
8.06,
without
the execution or filing of any paper or any further act on the part of any
of
the parties hereto, anything herein to the contrary
notwithstanding.
SECTION
8.10 Appointment
of Co-Trustee or Separate Trustee.
(a)
Notwithstanding any other provisions hereof, at any time, for the purpose of
meeting any legal requirements of any jurisdiction in which any part of REMIC
I
or property securing the same may at the time be located, the Servicer and
the
Trustee acting jointly shall have the power and shall execute and deliver all
instruments to appoint one or more Persons approved by the Trustee to act as
co-trustee or co-trustees, jointly with the Trustee, or separate trustee or
separate trustees, of all or any part of REMIC I, and to vest in such Person
or
Persons, in such capacity, such title to REMIC I, or any part thereof, and,
subject to the other provisions of this Section
8.10,
such
powers, duties, obligations, rights and trusts as the Servicer and the Trustee
may consider necessary or desirable. Any such co-trustee or separate trustee
shall be subject to the written approval of the Servicer. If the Servicer shall
not have joined in such appointment within 15 days after the receipt by it
of a
request so to do, or in case a Servicer Event of Default shall have occurred
and
be continuing, the Trustee alone shall have the power to make such appointment.
No co-trustee or separate trustee hereunder shall be required to meet the terms
of eligibility as a successor trustee under Section
8.06
hereunder and no notice to Holders of Certificates of the appointment of
co-trustee(s) or separate trustee(s) shall be required under Section
8.08
hereof.
The Servicer shall be responsible for the fees of any co-trustee or separate
trustee appointed under this Section
8.10.
(b) In
the
case of any appointment of a co-trustee or separate trustee pursuant to this
Section
8.10,
all
rights, powers, duties and obligations conferred or imposed upon the Trustee
shall be conferred or imposed upon and exercised or performed by the Trustee
and
such separate trustee or co-trustee jointly, except to the extent that under
any
law of any jurisdiction in which any particular act or acts are to be performed
by the Trustee (whether as Trustee hereunder or as successor to the Servicer
hereunder), the Trustee shall be incompetent or unqualified to perform such
act
or acts, in which event such rights, powers, duties and obligations (including
the holding of title to REMIC I or any portion thereof in any such jurisdiction)
shall be exercised and performed by such separate trustee or co-trustee at
the
direction of the Trustee.
(c) Any
notice, request or other writing given to the Trustee shall be deemed to have
been given to each of the then separate trustees and co-trustees, as effectively
as if given to each of them. Every instrument appointing any separate trustee
or
co-trustee shall refer to this Agreement and the conditions of this Article
VIII.
Each
separate trustee and co-trustee, upon its acceptance of the trust conferred,
shall be vested with the estates or property specified in its instrument of
appointment, either jointly with the Trustee or separately, as may be provided
therein, subject to all the provisions of this Agreement, specifically including
every provision of this Agreement relating to the conduct of, affecting the
liability of, or affording protection to, the Trustee. Every such instrument
shall be filed with the Trustee and a copy thereof given to the Depositor and
the Servicer.
(d) Any
separate trustee or co-trustee may, at any time, constitute the Trustee, its
agent or attorney-in-fact, with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Agreement
on
its behalf and in its name. If any separate trustee or co-trustee shall die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
SECTION
8.11 Trustee
to Execute Cap Contract.
The
Depositor hereby directs the Trustee to execute, deliver and perform its
obligations under the Cap Contracts on the Closing Date and thereafter on behalf
of the Holders of the Class A Certificates and the Mezzanine Certificates.
The
Depositor, the Servicer and the Holders of the Class A Certificates and the
Mezzanine Certificates by their acceptance of such Certificates acknowledge
and
agree that the Trustee shall execute, deliver and perform its obligations under
the Cap Contracts and shall do so solely in its capacity as Trustee of the
Trust
Fund and not in its individual capacity.
SECTION
8.12 Appointment
of Office or Agency.
The
Trustee shall maintain an office or agency in the United States where the
Certificates may be surrendered for registration of transfer or exchange, and
presented for final distribution. As of the Closing Date, the Trustee designates
its Corporate Trust Office in Minneapolis, Minnesota for such purposes. Notices
and demands to or upon the Trustee in respect of the Certificates and this
Agreement may be delivered at the Corporate Trust Office in Columbia,
Maryland.
SECTION
8.13 Representations
and Warranties of the Trustee.
The
Trustee hereby represents and warrants, solely as to itself, to the Servicer
and
the Depositor, as of the Closing Date, that:
(i) It
is a
national banking association duly organized, validly existing and in good
standing under the laws of the United States.
(ii) The
execution and delivery of this Agreement by it, and the performance and
compliance with the terms of this Agreement by it, will not violate its charter
or bylaws.
(iii) It
has
the full power and authority to enter into and consummate all transactions
contemplated by this Agreement, has duly authorized the execution, delivery
and
performance of this Agreement, and has duly executed and delivered this
Agreement.
(iv) This
Agreement, assuming due authorization, execution and delivery by the other
parties hereto, constitutes a valid, legal and binding obligation of it,
enforceable against it in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, receivership, reorganization, moratorium
and
other laws affecting the enforcement of creditors’ rights generally, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
ARTICLE
IX
TERMINATION
SECTION
9.01 Termination
Upon Repurchase or Liquidation of All Mortgage Loans.
(a)
Subject
to Section
9.02,
the
respective obligations and responsibilities under this Agreement of the
Depositor, the Servicer and the Trustee (other than the obligations of the
Servicer to the Trustee pursuant to Section
8.05
and of
the Servicer to make remittances to the Trustee and the Trustee to make payments
in respect of the REMIC I Regular Interests and the Classes of Certificates
as
hereinafter set forth) shall terminate upon payment to the Certificateholders
and the deposit of all amounts held by or on behalf of the Trustee and required
hereunder to be so paid or deposited on the Distribution Date coinciding with
or
following the earlier to occur of (i) the purchase by the Terminator (as defined
below) of all Mortgage Loans and each REO Property remaining in REMIC I and
(ii)
the final payment or other liquidation (or any advance with respect thereto)
of
the last Mortgage Loan or REO Property remaining in REMIC I; provided,
however,
that in
no event shall the trust created hereby continue beyond the earlier of (a)
the
expiration of 21 years from the death of the last survivor of the descendants
of
Xxxxxx X. Xxxxxxx, the late ambassador of the United States to the Court of
St.
Xxxxx, living on the date hereof and (b) the latest possible Maturity Date.
Subject to Section
3.10
hereof,
the purchase by the Terminator of all Mortgage Loans and each REO Property
remaining in REMIC I shall be at a price equal to the greater of (i) the Stated
Principal Balance of the Mortgage Loans and the appraised value of any REO
Properties (such appraisal to be conducted by an Independent appraiser mutually
agreed upon by the Terminator and, to the extent that the Class A Certificates
or a Class of Mezzanine Certificates will not receive all amounts owed to it
as
a result of the termination, the Trustee, in their reasonable discretion) and
(ii) the fair market value of the Mortgage Loans and the REO Properties (as
determined by the Terminator and, to the extent that the Class A Certificates
or
a Class of Mezzanine Certificates will not receive all amounts owed to it as
a
result of the termination, the Trustee (it being understood and agreed that
any
determination by the Trustee shall be made solely in reliance on an appraisal
by
an Independent appraiser as provided above)), as of the close of business on
the
third Business Day next preceding the date upon which notice of any such
termination is furnished to the related Certificateholders pursuant to
Section
9.01(c),
in each
case plus
accrued
and unpaid interest thereon at the weighted average of the Mortgage Rates
through the end of the Due Period preceding the final Distribution Date
plus
unreimbursed Servicing Advances, Advances, any unpaid Servicing Fees allocable
to such Mortgage Loans and REO Properties and any accrued and unpaid Net WAC
Rate Carryover Amounts (the “Termination
Price”);
provided,
however,
such
option may only be exercised if the Termination Price is sufficient to pay
all
interest accrued on, as well as amounts necessary to retire the principal
balance of, each class of notes issued pursuant to the Indenture. If the
determination of the fair market value of the Mortgage Loans and REO Properties
shall be required to be made by the Terminator and an Independent appraiser
as
provided above, (A) such appraisal shall be obtained at no expense to the
Trustee and (B) the Trustee may conclusively rely on, and shall be protected
in
relying on, such appraisal.
(b) The
majority Holder of the Class CE Certificates shall have the right (the party
exercising such right, the “Terminator”)
to
purchase all of the Mortgage Loans and each REO Property remaining in REMIC
I
pursuant to clause
(i)
of the
preceding paragraph in the manner set forth in Section
9.01(c)
below if
the aggregate Stated Principal Balance of the Mortgage Loans and each REO
Property remaining in the Trust Fund at the time of such election is reduced
to
less than 10% of the aggregate Stated Principal Balance of the Mortgage Loans
as
of the Cut-off Date. By acceptance of a Residual Certificate, the Holders of
the
Residual Certificates agree, in connection with any termination hereunder,
to
assign and transfer any amounts in excess of par, and to the extent received
in
respect of such termination, to pay any such amounts to the Holders of the
Class
CE Certificates.
(c) Notice
of
the liquidation of the Certificates shall be given promptly by the Trustee
by
letter to Certificateholders mailed (a) in the event such notice is given in
connection with the purchase of the Mortgage Loans and each REO Property by
the
Terminator, not earlier than the 10th
day and
not later than the 20th
day of
the month next preceding the month of the final distribution on the related
Certificates or (b) otherwise during the month of such final distribution on
or
before the Determination Date in such month, in each case specifying (i) the
Distribution Date upon which the Trust Fund will terminate and the final payment
in respect of the REMIC I Regular Interests, as applicable and the related
Certificates will be made upon presentation and surrender of the related
Certificates at the office of the Trustee therein designated, (ii) the amount
of
any such final payment, (iii) that no interest shall accrue in respect of the
REMIC I Regular Interests or the related Certificates from and after the
Interest Accrual Period relating to the final Distribution Date therefor and
(iv) that the Record Date otherwise applicable to such Distribution Date is
not
applicable, payments being made only upon presentation and surrender of the
related Certificates at the office of the Trustee. In the event such notice
is
given in connection with the purchase of all of the Mortgage Loans and each
REO
Property remaining in REMIC I by the Terminator, the Terminator shall deliver
to
the Trustee for deposit in the Certificate Account, not later than the third
Business Day preceding the date for such final payment, an amount in immediately
available funds equal to the above-described purchase price. The Trustee shall
remit to the Servicer from such funds deposited in the Certificate Account
(i)
any amounts which the Servicer would be permitted to withdraw and retain from
the Custodial Account pursuant to Section
3.11
and (ii)
any other amounts otherwise payable by the Trustee to the Servicer from amounts
on deposit in the Certificate Account pursuant to the terms of this Agreement,
in each case prior to making any final distributions pursuant to Section
10.01(d)
below.
Upon certification to the Trustee by the Terminator of the making of such final
deposit, the Trustee shall promptly release to the Terminator the Mortgage
Files
for the remaining Mortgage Loans, and the Trustee shall execute all assignments,
endorsements and other instruments necessary to effectuate such
transfer.
Immediately
following the deposit of funds in trust hereunder in respect of the
Certificates, the Trust Fund shall terminate.
SECTION
9.02 Additional
Termination Requirements.
(a)
In the
event that the Terminator purchases all the Mortgage Loans and each REO Property
or the final payment on or other liquidation of the last Mortgage Loan or REO
Property remaining in REMIC I pursuant to Section
9.01,
the
Trust Fund (or the applicable Trust REMIC) shall be terminated in accordance
with the following additional requirements:
(i) The
Trustee shall specify the first day in the 90-day liquidation period in a
statement attached to each Trust REMIC’s final Tax Return pursuant to Treasury
regulation Section 1.860F-1 and shall satisfy all requirements of a qualified
liquidation under Section 860F of the Code and any regulations thereunder,
as
evidenced by an Opinion of Counsel obtained at the expense of the
Terminator;
(ii) During
such 90-day liquidation period and, at or prior to the time of making of the
final payment on the Certificates, the Trustee shall sell all of the assets
of
REMIC I to the Terminator for cash; and
(iii) At
the
time of the making of the final payment on the Certificates, the Trustee shall
distribute or credit, or cause to be distributed or credited, to the Holders
of
the Residual Certificates in respect of the Class R-I Interest all cash on
hand
in the Trust Fund (other than cash retained to meet claims), and the Trust
Fund
shall terminate at that time.
(b) At
the
expense of the requesting Terminator (or, if the Trust Fund is being terminated
as a result of the occurrence of the event described in clause
(ii)
of the
first
paragraph
of
Section
9.01,
at the
expense of the Depositor without the right of reimbursement from the Trust
Fund), the Terminator shall prepare or cause to be prepared the documentation
required in connection with the adoption of a plan of liquidation of each Trust
REMIC pursuant to this Section
9.02.
(c) By
their
acceptance of Certificates, the Holders thereof hereby agree to authorize the
Trustee to specify the 90-day liquidation period for each Trust REMIC, which
authorization shall be binding upon all successor
Certificateholders.
ARTICLE
X
REMIC
PROVISIONS
SECTION
10.01 REMIC
Administration.
(a)
The
Trustee shall elect to treat each Trust REMIC as a REMIC under the Code and,
if
necessary, under applicable state law. Each such election will be made by the
Trustee on Form 1066 or other appropriate federal tax or information return
or
any appropriate state return for the taxable year ending on the last day of
the
calendar year in which the Certificates are issued. For the purposes of the
REMIC election in respect of REMIC I, the REMIC I Regular Interests shall be
designated as the Regular Interests in REMIC I and the Class R-I Interest shall
be designated as the sole class of Residual Interests in REMIC I. The Class
A
Certificates and the Mezzanine Certificates shall be designated as the Regular
Interests in REMIC II and the Class R-II Interest shall be designated as the
sole class of Residual Interests in REMIC II. The Trustee shall not permit
the
creation of any “interests” in any Trust REMIC (within the meaning of Section
860G of the Code) other than the REMIC I Regular Interests and the interests
represented by the Certificates.
(b) The
Closing Date is hereby designated as the “Startup Day” of each Trust REMIC
within the meaning of Section 860G(a)(9) of the Code.
(c) The
Trustee shall be reimbursed for any and all expenses relating to any tax audit
of the Trust Fund (including, but not limited to, any professional fees or
any
administrative or judicial proceedings with respect to each Trust REMIC that
involve the Internal Revenue Service or state tax authorities), including the
expense of obtaining any tax related Opinion of Counsel required to be obtained
hereunder. The Trustee, as agent for each Trust REMIC’s tax matters person shall
(i) act on behalf of the Trust Fund in relation to any tax matter or controversy
involving any Trust REMIC and (ii) represent the Trust Fund in any
administrative or judicial proceeding relating to an examination or audit by
any
governmental taxing authority with respect thereto. The holder of the largest
Percentage Interest of each Class of Residual Certificates shall be designated,
in the manner provided under Treasury regulations section 1.860F-4(d) and
Treasury regulations section 301.6231(a)(7)-1, as the tax matters person of
the
Trust REMICs created hereunder. By their acceptance thereof, the holder of
the
largest Percentage Interest of the Residual Certificates hereby agrees to
irrevocably appoint the Trustee or an Affiliate as its agent to perform all
of
the duties of the tax matters person for the Trust Fund.
(d) The
Trustee shall prepare, sign and file all of the Tax Returns (including Form
8811, which must be filed within 30 days following the Closing Date) in respect
of each Trust REMIC created hereunder. The expenses of preparing and filing
such
returns shall be borne by the Trustee without any right of reimbursement
therefor.
(e) The
Trustee shall perform on behalf of each Trust REMIC all reporting and other
tax
compliance duties that are the responsibility of such REMIC under the Code,
the
REMIC Provisions or other compliance guidance issued by the Internal Revenue
Service or any state or local taxing authority. Among its other duties, as
required by the Code, the REMIC Provisions or other such compliance guidance,
the Trustee shall provide (i) to any Transferor of a Residual Certificate such
information as is necessary for the application of any tax relating to the
transfer of a Residual Certificate to any Person who is not a Permitted
Transferee, (ii) to the Certificateholders such information or reports as are
required by the Code or the REMIC Provisions including reports relating to
interest, original issue discount and market discount or premium (using the
Prepayment Assumption as required) and (iii) to the Internal Revenue Service
the
name, title, address and telephone number of the person who will serve as the
representative of each Trust REMIC. The Depositor shall provide or cause to
be
provided to the Trustee, within ten (10) days after the Closing Date, all
information or data that the Trustee reasonably determines to be relevant for
tax purposes as to the valuations and issue prices of the Certificates,
including, without limitation, the price, yield, prepayment assumption and
projected cash flow of the Certificates.
(f) The
Trustee shall take such action and shall cause each Trust REMIC created
hereunder to take such action as shall be necessary to create or maintain the
status thereof as a REMIC under the REMIC Provisions. The Trustee shall not
take
any action or cause the Trust Fund to take any action or fail to take (or fail
to cause to be taken) any action that, under the REMIC Provisions, if taken
or
not taken, as the case may be, could (i) endanger the status of each Trust
REMIC
as a REMIC or (ii) result in the imposition of a tax upon the Trust Fund
(including but not limited to the tax on prohibited transactions as defined
in
Section 860F(a)(2) of the Code and the tax on contributions to a REMIC set
forth
in Section 860G(d) of the Code) (either such event, an “Adverse
REMIC Event”)
unless
the Trustee has received an Opinion of Counsel, addressed to the Trustee (at
the
expense of the party seeking to take such action but in no event at the expense
of the Trustee) to the effect that the contemplated action will not, with
respect to any Trust REMIC, endanger such status or result in the imposition
of
such a tax, nor shall the Servicer take or fail to take any action (whether
or
not authorized hereunder) as to which the Trustee has advised it in writing
that
it has received an Opinion of Counsel to the effect that an Adverse REMIC Event
could occur with respect to such action; provided that the Servicer may
conclusively rely on such Opinion of Counsel and shall incur no liability for
its action or failure to act in accordance with such Opinion of Counsel. In
addition, prior to taking any action with respect to any Trust REMIC or the
respective assets of each, or causing any Trust REMIC to take any action, which
is not contemplated under the terms of this Agreement, the Servicer will consult
with the Trustee or its designee, in writing, with respect to whether such
action could cause an Adverse REMIC Event to occur with respect to any Trust
REMIC and the Servicer shall not take any such action or cause any Trust REMIC
to take any such action as to which the Trustee has advised it in writing that
an Adverse REMIC Event could occur; provided that the Servicer may conclusively
rely on such writing and shall incur no liability for its action or failure
to
act in accordance with such writing. The Trustee may consult with counsel to
make such written advice, and the cost of same shall be borne by the party
seeking to take the action not permitted by this Agreement, but in no event
shall such cost be an expense of the Trustee. At all times as may be required
by
the Code, the Trustee will ensure that substantially all of the assets of REMIC
I will consist of “qualified mortgages” as defined in Section 860G(a)(3) of the
Code and “permitted investments” as defined in Section 860G(a)(5) of the Code,
to the extent such obligations are within the Trustee’s control and not
otherwise inconsistent with the terms of this Agreement.
(g) In
the
event that any tax is imposed on “prohibited transactions” of any Trust REMIC
created hereunder as defined in Section 860F(a)(2) of the Code, on the “net
income from foreclosure property” of such REMIC as defined in Section 860G(c) of
the Code, on any contributions to any such REMIC after the Startup Day therefor
pursuant to Section 860G(d) of the Code, or any other tax is imposed by the
Code
or any applicable provisions of state or local tax laws, such tax shall be
charged (i) to the Trustee pursuant to Section
10.03
hereof,
if such tax arises out of or results from a breach by the Trustee of any of
its
obligations under this Article
X,
(ii) to
the Servicer pursuant to Section
10.03
hereof,
if such tax arises out of or results from a breach by the Servicer of any of
its
obligations under Article
III
or this
Article
X,
or
(iii) in all other cases, against amounts on deposit in the Certificate Account
and shall be paid by withdrawal therefrom.
(h) On
or
before April 15 of each calendar year, commencing April 15, 2007, the Trustee
shall deliver to each Rating Agency an Officer’s Certificate of the Trustee
stating the Trustee’s compliance with this Article
X.
(i) The
Trustee shall, for federal income tax purposes, maintain books and records
with
respect to each Trust REMIC on a calendar year and on an accrual
basis.
(j) Following
the Startup Day, neither the Servicer nor the Trustee shall accept any
contributions of assets to any Trust REMIC other than in connection with any
Qualified Substitute Mortgage Loan delivered in accordance with Section
2.03
unless
it shall have received an Opinion of Counsel to the effect that the inclusion
of
such assets in the Trust Fund will not cause any Trust REMIC to fail to qualify
as a REMIC at any time that any Certificates are outstanding or subject any
Trust REMIC to any tax under the REMIC Provisions or other applicable provisions
of federal, state and local law or ordinances.
(k) Neither
the Trustee nor the Servicer shall enter into any arrangement by which any
Trust
REMIC will receive a fee or other compensation for services nor knowingly permit
any Trust REMIC to receive any income from assets other than “qualified
mortgages” as defined in Section 860G(a)(3) of the Code or “permitted
investments” as defined in Section 860G(a)(5) of the Code.
SECTION
10.02 Prohibited
Transactions and Activities.
None of
the Depositor, the Servicer or the Trustee shall sell, dispose of or substitute
for any of the Mortgage Loans (except in connection with (i) the foreclosure
of
a Mortgage Loan, including but not limited to, the acquisition or sale of a
Mortgaged Property acquired by deed in lieu of foreclosure, (ii) the bankruptcy
of REMIC I, (iii) the termination of REMIC I pursuant to Article
IX
of this
Agreement, (iv) a substitution pursuant to Article
II
of this
Agreement or (v) a purchase of Mortgage Loans pursuant to Article
II
or
III
of this
Agreement), nor acquire any assets for any Trust REMIC (other than REO Property
acquired in respect of a defaulted Mortgage Loan), nor sell or dispose of any
investments in the Custodial Account or the Certificate Account for gain, nor
accept any contributions to any Trust REMIC after the Closing Date (other than
a
Qualified Substitute Mortgage Loan delivered in accordance with Section
2.03),
unless
it has received an Opinion of Counsel, addressed to the Trustee (at the expense
of the party seeking to cause such sale, disposition, substitution, acquisition
or contribution but in no event at the expense of the Trustee) that such sale,
disposition, substitution, acquisition or contribution will not (a) affect
adversely the status of any Trust REMIC as a REMIC or (b) cause any Trust REMIC
to be subject to a tax on “prohibited transactions” or “contributions” pursuant
to the REMIC Provisions.
SECTION
10.03 Servicer
and Trustee Indemnification.
(a)
The
Trustee agrees to indemnify the Trust Fund, the Depositor and the Servicer
for
any taxes and costs including, without limitation, any reasonable attorneys’
fees imposed on or incurred by the Trust Fund, the Depositor or the Servicer
as
a result of a breach of the Trustee’s covenants set forth in this Article
X.
(b) The
Servicer agrees to indemnify the Trust Fund, the Depositor and the Trustee
for
any taxes and costs including, without limitation, any reasonable attorneys’
fees imposed on or incurred by the Trust Fund, the Depositor or the Trustee,
as
a result of a breach of the Servicer’s covenants set forth in Article
III
or this
Article
X.
ARTICLE
XI
TRUSTEE
COMPLIANCE WITH REGULATION AB
SECTION
11.01 Intent
of the Parties; Reasonableness.
The
Seller, the Trustee, the Depositor and the Servicer acknowledge and agree that
the purpose of Article XI of this Agreement is to facilitate compliance by
the
Seller and the Depositor with the provisions of Regulation AB and related rules
and regulations of the Commission. Neither the Seller nor the Depositor shall
exercise its right to request delivery of information or other performance
under
these provisions other than in good faith, or for purposes other than compliance
with the Securities Act, the Exchange Act and the rules and regulations of
the
Commission thereunder. Each of the Depositor, the Seller, the Servicer and
the
Trustee acknowledges that interpretations of the requirements of Regulation
AB
may change over time, whether due to interpretive guidance provided by the
Commission or its staff, consensus among participants in the asset-backed
securities markets, advice of counsel, or otherwise, and agrees to comply with
requests made by the Seller or the Depositor in good faith for delivery of
information under these provisions on the basis of evolving interpretations
of
Regulation AB. Each of the Servicer and the Trustee shall cooperate fully with
the Seller to deliver to the Seller (including any of its assignees or
designees) and the Depositor, any and all statements, reports, certifications,
records and any other information necessary in the good faith determination
of
the Seller or the Depositor to permit the Seller or the Depositor to comply
with
the provisions of Regulation AB, together with such disclosures relating to
the
Servicer, the Trustee and the Mortgage Loans, or the servicing of the Mortgage
Loans, reasonably believed by the Seller or the Depositor to be necessary in
order to effect such compliance.
SECTION
11.02 Additional
Representations and Warranties of the Trustee.
For so
long as the Trust is subject to the reporting requirements of the Exchange
Act,
the Trustee agrees that:
(a) The
Trustee shall be deemed to represent to the Seller and to the Depositor, as
of
the date hereof and the date on which information is provided to the Seller
or
the Depositor under Sections
11.01,
11.02(b)
or
11.03
that,
except as disclosed in writing to the Seller or the Depositor prior to such
date: (i) it is not aware and has not received notice that any default, early
amortization or other performance triggering event has occurred as to any other
Securitization Transaction due to any act or failure to act of the Trustee;
(ii)
it has not been terminated as trustee in a securitization of mortgage loans,
(iii) there are no aspects of its financial condition that could have a material
adverse effect on its performance of its trustee obligations under this
Agreement or any other Securitization Transaction as to which it is the trustee;
(iv) there are no material legal or governmental proceedings pending (or known
to be contemplated) against it that would be material to Certificateholders;
and
(v) there are no affiliations, relationships or transactions outside the
ordinary course of business relating to the Trustee, with respect to the
Depositor or any sponsor, issuing entity, servicer, trustee, originator,
significant obligor, enhancement or support provider or other material
transaction party (as such terms are used in Regulation AB) relating to the
Securitization Transaction contemplated by the Agreement (the “Transaction
Parties”).
(b) If
so
requested by the Seller or the Depositor on any date following the date on
which
information is first provided to the Seller or the Depositor under Section
11.03,
the
Trustee shall, within five Business Days following such request, confirm in
writing the accuracy of the representations and warranties set forth in
paragraph (a) of this Section or, if any such representation and warranty is
not
accurate as of the date of such request or such confirmation, provide reasonably
adequate disclosure of the pertinent facts, in writing, to the requesting
party.
SECTION
11.03 Information
to Be Provided by the Trustee.
(a) For
so
long as the Trust is subject to the reporting requirements of the Exchange
Act,
for the purpose of satisfying the Depositor’s and the Seller’s reporting
obligation under the Exchange Act with respect to any class of asset-backed
securities, the Trustee shall provide to the Servicer and the Seller a written
description of (A) any litigation or governmental proceedings pending against
the Trustee as of the last day of the calendar month that would be material
to
Certificateholders, and (B) any affiliations or relationships (as described
in
Item 1119 of Regulation AB) that develop following the Closing Date between
the
Trustee and any Transaction Party of the type described in Section
11.02(a)(iv)
or
11.02(a)(v)
as of
the last day of each calendar year. Any descriptions required with respect
to
legal proceedings, as well as updates to previously provided descriptions,
under
this Section
11.03
shall be
given no later than five Business Days prior to the Determination Date following
the month in which the relevant event occurs, and any notices and descriptions
required with respect to affiliations, as well as updates to previously provided
descriptions, under this Section
11.03
shall be
given no later than January 31 of the calendar year following the year in which
the relevant event occurs. As of the date the Depositor or the Trustee files
each Report on Form 10-D and Report on Form 10-K with respect to the
Certificates, the Trustee will be deemed to represent that any information
previously provided under this Article
XI
is
materially correct and does not have any material omissions unless the Trustee
has provided an update to such information.
(b) In
addition to such information as the Trustee is obligated to provide pursuant
to
other provisions of this Agreement, if so requested by the Servicer or the
Seller in its reasonable good faith determination, the Trustee shall provide
such information regarding the performance or servicing of the Mortgage Loans
as
is reasonably required to facilitate preparation of distribution reports in
accordance with Item 1121 of Regulation AB.
SECTION
11.04 Report
on Assessment of Compliance and Attestation.
On or
before March 1 of each calendar year, the Trustee shall:
(a) deliver
to the Seller and the Depositor a report (in form and substance reasonably
satisfactory to the Seller and the Depositor) regarding the Trustee’s assessment
of compliance with the applicable Servicing Criteria during the immediately
preceding calendar year, as required under Rules 13a-18 and 15d-18 of the
Exchange Act and Item 1122 of Regulation AB. Such report shall be addressed
to
the Seller and the Depositor and signed by an authorized officer of the Trustee,
and shall address each of the Servicing Criteria specified on a certification
substantially in the form of Exhibit J-2 hereto;
(b) deliver
to the Seller and the Depositor a report of a registered public accounting
firm
reasonably acceptable to the Seller and the Depositor that attests to, and
reports on, the assessment of compliance made by the Trustee and delivered
pursuant to the preceding paragraph. Such attestation shall be in accordance
with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under the Securities Act
and
the Exchange Act;
SECTION
11.05 Indemnification;
Remedies.
(a) The
Trustee shall indemnify the Seller, each affiliate of the Seller, the Depositor,
the Servicer, each broker dealer acting as underwriter, placement agent or
initial purchaser, each Person who controls any of such parties (within the
meaning of Section 15 of the Securities Act and Section 20 of the Exchange
Act);
and the respective present and former directors, officers, employees and agents
of each of the foregoing, and shall hold each of them harmless from and against
any losses, damages, penalties, fines, forfeitures, legal fees and expenses
and
related costs, judgments, and any other costs, fees and expenses that any of
them may sustain arising out of or based upon:
(i) (A)
any
untrue statement of a material fact contained or alleged to be contained in
any
(w) compliance certificate or report regarding the Trustee’s assessment of
compliance delivered by the Trustee or any Subcontractor of the Trustee pursuant
to Section
11.04(a),
(x) any
report of a registered public accounting firm delivered by or on behalf of
the
Trustee or any Subcontractor of the Trustee pursuant to Section 11.04(b), or
(y)
any information about the Trustee provided by it pursuant to Section
11.01,
11.02
or
11.03
(collectively, the “Trustee
Information”),
or
(B) the omission or alleged omission to state in the Trustee Information a
material fact required to be stated in the Trustee Information or necessary
in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) any
failure by the Trustee to deliver any information, report, certification,
accountants’ letter or other material when and as required under this
Article
XI;
or
(iii) any
breach by the Trustee of a representation or warranty set forth in Section
11.02(a)
or in a
writing furnished pursuant to Section
11.02(b).
(b) In
the
case of any failure of performance described in clause
(ii)
of this
Section
11.05(a),
the
Trustee shall promptly reimburse the Seller or the Depositor, as applicable,
for
all costs reasonably incurred by each such party in order to obtain the
information, report, certification, accountants’ attestation or other material
not delivered as required by the Trustee and cooperate with the Depositor and
the Seller to mitigate any damages that may result.
ARTICLE
XII
SERVICER
COMPLIANCE WITH REGULATION AB
SECTION
12.01 Intent
of the Parties; Reasonableness.
The
Seller, the Depositor and the Servicer acknowledge and agree that the purpose
of
Article
XII
of this
Agreement is to facilitate compliance by the Seller and the Depositor with
the
provisions of Regulation AB and related rules and regulations of the Commission.
Although Regulation AB is applicable by its terms only to offerings of
asset-backed securities that are registered under the Securities Act, the
Servicer acknowledges that investors in privately offered securities may require
that the Seller or the Depositor provide comparable disclosure in unregistered
offerings. References in this Agreement to compliance with Regulation AB include
provision of comparable disclosure in private offerings.
Neither
the Seller nor the Depositor shall exercise its right to request delivery of
information or other performance under these provisions other than in good
faith, or for purposes other than compliance with the Securities Act, the
Exchange Act and the rules and regulations of the Commission thereunder (or
the
provision in a private offering of disclosure comparable to that required under
the Securities Act). The Servicer acknowledges that interpretations of the
requirements of Regulation AB may change over time, whether due to interpretive
guidance provided by the Commission or its staff, consensus among participants
in the asset-backed securities markets, advice of counsel, or otherwise, and
agrees to comply with requests made by the Seller or the Depositor in good
faith
for delivery of information under these provisions on the basis of evolving
interpretations of Regulation AB. In connection with the transactions
contemplated by this Agreement, the Servicer shall cooperate fully with the
Seller to deliver to the Seller (including any of its assignees or designees)
and the Depositor, any and all statements, reports, certifications, records
and
any other information necessary in the good faith determination of the Seller
or
the Depositor to permit the Seller or the Depositor to comply with the
provisions of Regulation AB, together with such disclosures relating to the
Servicer, any Sub-Servicer, any Third-Party Originator and the Mortgage Loans,
or the servicing of the Mortgage Loans, reasonably believed by the Seller or
the
Depositor to be necessary in order to effect such compliance.
The
Seller (including any of its assignees or designees) shall cooperate with the
Servicer by providing timely notice of requests for information under these
provisions and by reasonably limiting such requests to information required,
in
the Seller’s reasonable judgment, to comply with Regulation AB.
SECTION
12.02 Additional
Representations and Warranties of the Servicer.
(a)
The
Servicer shall be deemed to represent to the Seller and to the Depositor, as
of
the date on which information is first provided to the Seller or the Depositor
under Section
12.03
that,
except as disclosed in writing to the Seller or the Depositor prior to such
date: (i) the Servicer is not aware and has not received notice that any
default, early amortization or other performance triggering event has occurred
as to any other securitization due to any default of the Servicer as servicer;
(ii) the Servicer has not been terminated as servicer in a residential mortgage
loan securitization, either due to a servicing default or to application of
a
servicing performance test or trigger; (iii) no material noncompliance with
the
applicable servicing criteria with respect to other securitizations of
residential mortgage loans involving the Servicer as servicer has been disclosed
or reported by the Servicer; (iv) no material changes to the Servicer’s policies
or procedures with respect to the servicing function it will perform under
this
Agreement for mortgage loans of a type similar to the Mortgage Loans have
occurred during the three-year period immediately preceding the Closing Date;
(v) there are no changes to the Servicer’s financial condition that could have a
material adverse effect on the performance by the Servicer of its servicing
obligations under this Agreement; (vi) there are no legal or governmental
proceedings pending (or governmental proceedings known to be contemplated)
against the Servicer, any Sub-Servicer or any Third-Party Originator that are
material to Certificateholders; and (vii) there are no affiliations,
relationships or transactions relating to the Servicer, any Sub-Servicer or
any
Third-Party Originator with respect to the transactions contemplated by this
Agreement and any party thereto identified by the Depositor of a type required
to be described in Item 1119 of Regulation AB.
(b) If
so
requested by the Seller or the Depositor on any date following the date on
which
information is first provided to the Seller or the Depositor under Section
12.03,
the
Servicer shall, within five Business Days following such request, confirm in
writing the accuracy of the representations and warranties set forth in
paragraph
(a)
of this
Section or, if any such representation and warranty is not accurate as of the
date of such request, provide reasonably adequate disclosure of the pertinent
facts, in writing, to the requesting party.
SECTION
12.03 Information
to Be Provided by the Servicer.
The
Servicer shall (i) within five Business Days following a request by the Seller
or the Depositor, provide to the Seller and the Depositor (or, as applicable,
cause each Third-Party Originator and each Sub-Servicer to provide), in writing
and in form and substance reasonably satisfactory to the Seller and the
Depositor, the information and materials specified in paragraphs
(a),
(b),
(c)
and
(f)
of this
Section, and (ii) as promptly as practicable following notice to or discovery
by
the Servicer, provide to the Seller and the Depositor (in writing and in form
and substance reasonably satisfactory to the Seller and the Depositor) the
information specified in paragraph
(d)
of this
Section.
(a) If
so
requested by the Seller or the Depositor, the Servicer shall provide such
information regarding (i) the Servicer, as originator of the Mortgage Loans
(including as an acquirer of Mortgage Loans from a Qualified Correspondent),
or
(ii) each Third-Party Originator, and (iii) as applicable, each Sub-Servicer,
as
is requested for the purpose of compliance with Items 1103(a)(1), 1105, 1110,
1117 and 1119 of Regulation AB. Such information shall include, at a
minimum:
(A) the
originator’s form of organization;
(B) a
description of the originator’s origination program and how long the originator
has been engaged in originating residential mortgage loans, which description
shall include a discussion of the originator’s experience in originating
mortgage loans of a similar type as the Mortgage Loans; information regarding
the size and composition of the originator’s origination portfolio; and
information that may be material to an analysis of the performance of the
Mortgage Loans, including the originators’ credit-granting or underwriting
criteria for mortgage loans of similar type(s) as the Mortgage Loans and such
other information as the Seller or the Depositor may reasonably request for
the
purpose of compliance with Item 1110(b)(2) of Regulation AB;
(C) a
description of any legal or governmental proceedings pending (or governmental
proceedings known to be contemplated) against the Servicer, any Sub-Servicer
or
any Third-Party Originator that would be material to Certificateholders;
and
(D) a
description of any affiliation or relationship that is required to be described
in Item 1119 of Regulation AB between the Servicer, each Third-Party Originator,
each Sub-Servicer and any of the following parties to a Securitization
Transaction, as such parties are identified to the Servicer by the Seller or
the
Depositor in writing in advance of such Securitization Transaction:
(i) the
sponsor;
(ii) the
depositor;
(iii) the
issuing entity;
(iv) any
servicer;
(v) any
trustee;
(vi) any
originator;
(vii) any
significant obligor;
(viii) any
enhancement or support provider; and
(ix) any
other
material transaction party.
(b) If
so
requested by the Seller or the Depositor, the Servicer shall provide (or, as
applicable, cause each Third-Party Originator to provide) Static Pool
Information with respect to the mortgage loans (of a similar type as the
Mortgage Loans) originated by (i) the Servicer, if the Servicer is an originator
of Mortgage Loans (including as an acquirer of Mortgage Loans from a Qualified
Correspondent), and/or (ii) each Third-Party Originator. Such Static Pool
Information shall be prepared by the Servicer (or Third-Party Originator) on
the
basis of its reasonable, good faith interpretation of the requirements of Item
1105(a)(1)-(3) of Regulation AB. The content of such Static Pool Information
may
be in the form customarily provided by the Servicer, and need not be customized
for the Seller or the Depositor. Such Static Pool Information for each vintage
origination year or prior securitized pool, as applicable, shall be presented
in
increments no less frequently than quarterly over the life of the mortgage
loans
included in the vintage origination year or prior securitized pool. The most
recent periodic increment must be as of a date no later than 135 days prior
to
the date of the prospectus or other offering document in which the Static Pool
Information is to be included or incorporated by reference. The Static Pool
Information shall be provided in an electronic format that provides a permanent
record of the information provided, such as a portable document format (pdf)
file, or other such electronic format reasonably required by the Seller or
the
Depositor, as applicable.
Promptly
following notice or discovery of a material error in Static Pool Information
provided pursuant to the immediately preceding paragraph (including an omission
to include therein information required to be provided pursuant to such
paragraph), the Servicer shall provide corrected Static Pool Information to
the
Seller or the Depositor, as applicable, in the same format in which Static
Pool
Information was previously provided to such party by the Servicer.
If
so
requested by the Seller or the Depositor, the Servicer shall provide (or, as
applicable, cause each Third-Party Originator to provide), at the expense of
the
requesting party (to the extent of any additional incremental expense associated
with delivery pursuant to this Agreement), such agreed-upon procedures letters
of certified public accountants reasonably acceptable to the Seller or
Depositor, as applicable, pertaining to Static Pool Information relating to
prior securitized pools for securitizations closed on or after January 1, 2006
or, in the case of Static Pool Information with respect to the Servicer’s or
Third-Party Originator’s originations or purchases, to calendar months
commencing January 1, 2006, as the Seller or the Depositor shall reasonably
request. Such letters shall be addressed to and be for the benefit of such
parties as the Seller or the Depositor shall designate, which may include,
by
way of example, the Seller as sponsor, the Depositor and any broker dealer
acting as underwriter, placement agent or initial purchaser with respect to
the
transactions contemplated by this Agreement. Any such statement or letter may
take the form of a standard, generally applicable document accompanied by a
reliance letter authorizing reliance by the addressees designated by the Seller
or the Depositor.
(c) If
so
requested by the Seller or the Depositor, the Servicer shall provide such
information regarding the Servicer, as servicer of the Mortgage Loans, and
each
Sub-Servicer (each of the Servicer and each Sub-Servicer, for purposes of this
paragraph, a “Servicer”),
as is
requested for the purpose of compliance with Item 1108 of Regulation AB. Such
information shall include, at a minimum:
(A) the
Servicer’s form of organization;
(B) a
description of how long the Servicer has been servicing residential mortgage
loans; a general discussion of the Servicer’s experience in servicing assets of
any type as well as a more detailed discussion of the Servicer’s experience in,
and procedures for, the servicing function it will perform under this Agreement;
information regarding the size, composition and growth of the Servicer’s
portfolio of residential mortgage loans of a type similar to the Mortgage Loans
and information on factors related to the Servicer that may be material, in
the
good faith judgment of the Seller or the Depositor, to any analysis of the
servicing of the Mortgage Loans or the related asset-backed securities, as
applicable, including, without limitation:
(i) whether
any prior securitizations of mortgage loans of a type similar to the Mortgage
Loans involving the Servicer have defaulted or experienced an early amortization
or other performance triggering event because of servicing during the three-year
period immediately preceding the Closing Date;
(ii) the
extent of outsourcing the Servicer utilizes;
(iii) whether
there has been previous disclosure of material noncompliance with the applicable
servicing criteria with respect to other securitizations of residential mortgage
loans involving the Servicer as a servicer during the three-year period
immediately preceding the Closing Date;
(iv) whether
the Servicer has been terminated as servicer in a residential mortgage loan
securitization, either due to a servicing default or to application of a
servicing performance test or trigger; and
(v) such
other information as the Seller or the Depositor may reasonably request for
the
purpose of compliance with Item 1108(b)(2) and Item 1108(c) of Regulation
AB;
(C) a
description of any material changes during the three-year period immediately
preceding the Closing Date to the Servicer’s policies or procedures with respect
to the servicing function it will perform under this Agreement for mortgage
loans of a type similar to the Mortgage Loans;
(D) information
regarding the Servicer’s financial condition, to the extent that there is a
material risk that an adverse financial event or circumstance involving the
Servicer could have a material adverse effect on the performance by the Servicer
of its servicing obligations under this Agreement;
(E) a
statement by an authorized officer of the Servicer to the effect that the
Servicer has made all advances required to be made on residential mortgage
loans
serviced by it during such period, or, if such statement would not be accurate,
information regarding the percentage and type of advances not made as required,
and the reasons for such failure to advance;
(F) a
description of the Servicer’s processes and procedures designed to address any
special or unique factors involved in servicing loans of a similar type as
the
Mortgage Loans;
(G) a
description of the Servicer’s processes for handling delinquencies, losses,
bankruptcies and recoveries, such as through liquidation of mortgaged
properties, sale of defaulted mortgage loans or workouts; and
(H) information
as to how the Servicer defines or determines delinquencies and charge-offs,
including the effect of any grace period, re-aging, restructuring, partial
payments considered current or other practices with respect to delinquency
and
loss experience.
(d) For
the
purpose of satisfying its reporting obligation under the Exchange Act with
respect to any class of Certificates for so long as the Depositor is required
to
file reports under the Exchange Act with respect to the Certificates, the
Servicer shall (or shall cause each Sub-Servicer and Third-Party Originator
to)
(i) notify the Seller and the Depositor in writing of (A) any litigation or
governmental proceedings pending against the Servicer, any Sub-Servicer or
any
Third-Party Originator that would be material to Certificateholders and (B)
any
affiliations or relationships of the type required to be disclosed under Item
1119 of Regulation AB that develop following the Closing Date between the
Servicer, any Sub-Servicer or any Third-Party Originator and any of the parties
specified in clause (D) of paragraph (a) of this Section (and any other parties
identified in writing by the requesting party) with respect to the issuing
of
the Certificates, and (ii) provide to the Seller and the Depositor a description
of such proceedings, affiliations or relationships.
(e) As
a
condition to the succession to the Servicer or any Sub-Servicer as servicer
or
subservicer of at least 10% of the Mortgage Loans under this Agreement by any
Person (i) into which the Servicer or such Sub-Servicer may be merged or
consolidated, or (ii) which may be appointed as a successor to the Servicer
or
any Sub-Servicer, the Servicer shall provide to the Seller and the Depositor,
at
least 15 calendar days prior to the effective date of such succession or
appointment, (x) written notice to the Seller and the Depositor of such
succession or appointment and (y) in writing and in form and substance
reasonably satisfactory to the Seller and the Depositor, all information
reasonably requested by the Seller or the Depositor in order to comply with
its
reporting obligation under Item 6.02 of Form 8-K with respect to any class
of
Certificates.
(f) In
addition to such information as the Servicer, as servicer, is obligated to
provide pursuant to other provisions of this Agreement, if so requested by
the
Seller or the Depositor, the Servicer shall provide such information regarding
the performance or servicing of the Mortgage Loans as is reasonably required
to
facilitate preparation of distribution reports in accordance with Item 1121
of
Regulation AB. Such information shall be provided concurrently with the monthly
reports otherwise required to be delivered by the Trustee pursuant to
Section
4.02
of this
Agreement, commencing with the first such report due not less than ten Business
Days following such request.
SECTION
12.04 Servicer
Compliance Statement.
The
Servicer shall deliver on or before March 15, commencing in 2007, to the Seller,
the Trustee and the Depositor a statement of compliance addressed to the Seller
and the Depositor and signed by an authorized officer of the Servicer, to the
effect that (i) a review of the Servicer’s activities during the immediately
preceding calendar year (or applicable portion thereof) and of its performance
under this Agreement during such period has been made under such officer’s
supervision, and (ii) to the best of such officers’ knowledge, based on such
review, the Servicer has fulfilled all of its obligations under this Agreement
in all material respects throughout such calendar year (or applicable portion
thereof) or, if there has been a failure to fulfill any such obligation in
any
material respect, specifically identifying each such failure known to such
officer and the nature and the status thereof.
SECTION
12.05 Report
on Assessment of Compliance and Attestation.
(a) The
Servicer shall on or before March 15, commencing in 2007:
(i) deliver
to the Seller, the Trustee and the Depositor a report regarding the Servicer’s
assessment of compliance with the Servicing Criteria during the immediately
preceding calendar year, as required under Rules 13a-18 and 15d-18 of the
Exchange Act and Item 1122 of Regulation AB. Such report shall be signed by
an
authorized officer of the Servicer, and shall address each of the Servicing
Criteria specified on a certification substantially in the form of Exhibit
J-2
hereto delivered to the Seller concurrently with the execution of this
Agreement;
(ii) deliver
to the Seller, the Trustee and the Depositor a report of a registered public
accounting firm that attests to, and reports on, the assessment of compliance
made by the Servicer and delivered pursuant to the preceding paragraph. Such
attestation shall be in accordance with Rules 1-02(a)(3) and 2-02(g) of
Regulation S-X under the Securities Act and the Exchange Act; immediately upon
receipt of such report, the Servicer shall, at its own expense, furnish a copy
of such report to each Rating Agency. Copies of such statement shall be provided
by the Trustee to any Certificateholder upon request, provided that such
statement is delivered by the Servicer to the Trustee;
(iii) cause
each Sub-Servicer, and each Subcontractor determined by the Servicer pursuant
to
Section 12.06(b) to be “participating in the servicing function” within the
meaning of Item 1122 of Regulation AB, to deliver to the Seller, the Trustee
and
the Depositor an assessment of compliance and accountants’ attestation as and
when provided in paragraphs (a) and (b) of this Section; and
(iv) not
later
than March 1 of the calendar year in which such certification is to be
delivered, deliver to the Seller and the Depositor a backup certification in
the
form attached hereto as Exhibit
I-1.
The
Servicer acknowledges that the parties identified in clause
(a)(iv)
above
may rely on the certification provided by the Servicer pursuant to such clause
in signing a Sarbanes Certification and filing such with the Commission. Neither
the Seller nor the Depositor will request delivery of a certification under
clause
(a)(iv)
above
unless the Depositor is required under the Exchange Act to file an annual report
on Form 10-K with respect to the Certificates.
(b) Each
assessment of compliance provided by a Sub-Servicer pursuant to Section
12.05(a)(i)
shall
address each of the Servicing Criteria specified on a certification
substantially in the form of Exhibit
J-2
hereto
delivered to the Seller concurrently with the execution of this Agreement or,
in
the case of a Sub-Servicer subsequently appointed as such, on or prior to the
date of such appointment. An assessment of compliance provided by a
Subcontractor pursuant to Section
12.05(a)(iii)
need not
address any elements of the Servicing Criteria other than those specified by
the
Servicer pursuant to Section
12.06.
SECTION
12.06 Use
of
Sub-Servicers and Subcontractors.
The
Servicer shall not hire or otherwise utilize the services of any Sub-Servicer
to
fulfill any of the obligations of the Servicer as servicer under this Agreement
unless the Servicer complies with the provisions of paragraph
(a)
of this
Section. The Servicer shall not hire or otherwise utilize the services of any
Subcontractor, and shall not permit any Sub-Servicer to hire or otherwise
utilize the services of any Subcontractor, to fulfill any of the obligations
of
the Servicer as servicer under this Agreement unless the Servicer complies
with
the provisions of paragraph
(b)
of this
Section.
(a) It
shall
not
be
necessary for the Servicer to seek the consent of the Seller or the Depositor
to
the utilization of any Sub-Servicer. The Servicer shall cause any Sub-Servicer
used by the Servicer (or by any Sub-Servicer) for the benefit of the Seller
and
the Depositor to comply with the provisions of this Section and with Sections
12.02, 12.03(c) and (e), 12.04, 12.05 and 12.07 of this Agreement to the same
extent as if such Sub-Servicer were the Servicer, and to provide the information
required with respect to such Sub-Servicer under Section 12.03(d) of this
Agreement. The Servicer shall be responsible for obtaining from each
Sub-Servicer and delivering to the Seller and the Depositor any servicer
compliance statement required to be delivered by such Sub-Servicer under Section
12.04, any assessment of compliance and attestation required to be delivered
by
such Sub-Servicer under Section 12.05 and any certification required to be
delivered to the Depositor as and when required to be delivered under Section
12.05.
(b) It
shall
not be necessary for the Servicer to seek the consent of the Seller or the
Depositor to the utilization of any
Subcontractor. The Servicer shall promptly upon request provide to the Seller
and the Depositor (or any designee of the Depositor, such as a master servicer
or administrator) a written description (in form and substance satisfactory
to
the Seller and the Depositor) of the role and function of each Subcontractor
utilized by the Servicer or any Sub-Servicer, specifying (i) the identity of
each such Subcontractor, (ii) which (if any) of such Subcontractors are
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, and (iii) which elements of the Servicing Criteria will be
addressed in assessments of compliance provided by each Subcontractor identified
pursuant to clause
(ii)
of this
paragraph.
As
a
condition to the utilization of any Subcontractor determined to be
“participating in the servicing function” within the meaning of Item 1122 of
Regulation AB, the Servicer shall cause any such Subcontractor used by the
Servicer (or by any Sub-Servicer) for the benefit of the Seller and the
Depositor to comply with the provisions of Sections
12.05
and
12.07
of this
Agreement to the same extent as if such Subcontractor were the Servicer
performing the servicing functions of the Subcontractor. The Servicer shall
be
responsible for obtaining from each Subcontractor and delivering to the Seller
and the Depositor any assessment of compliance and attestation required to
be
delivered by such Subcontractor under Section
12.05,
in each
case as and when required to be delivered.
SECTION
12.07 Indemnification;
Remedies.
(a) The
Servicer shall indemnify the Trustee, the Depositor, the Seller, each affiliate
of the Seller, and each of the following parties participating in the
transactions contemplated by this Agreement: each sponsor and issuing entity;
each Person responsible for the preparation, execution or filing of any report
required to be filed with the Commission with respect to such transactions,
or
for execution of a certification pursuant to Rule 13a-14(d) or Rule 15d-14(d)
under the Exchange Act with respect to such transactions; each broker dealer
acting as underwriter, placement agent or initial purchaser, each Person who
controls any of such parties or the Depositor (within the meaning of Section
15
of the Securities Act and Section 20 of the Exchange Act); and the respective
present and former directors, officers, employees and agents of each of the
foregoing and of the Depositor, and shall hold each of them harmless from and
against any losses, damages, penalties, fines, forfeitures, reasonable legal
fees and expenses and related costs, judgments, and any other costs, fees and
expenses that any of them may sustain arising out of or based upon:
(i) (A)
any
untrue statement of a material fact contained or alleged to be contained in
any
information, report, certification, accountants’ letter or other material
provided in written or electronic form under this Article
XII
by or on
behalf of the Servicer, or provided under this Article
XII
by or on
behalf of any Sub-Servicer, Subcontractor or Third-Party Originator
(collectively, the “Servicer
Information”),
or
(B) the omission or alleged omission to state in the Servicer Information a
material fact required to be stated in the Servicer Information or necessary
in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided,
by way
of clarification, that clause
(B)
of this
paragraph shall be construed solely by reference to the Servicer Information
and
not to any other information communicated in connection with a sale or purchase
of securities, without regard to whether the Servicer Information or any portion
thereof is presented together with or separately from such other
information;
(ii) any
failure by the Servicer, any Sub-Servicer, any Subcontractor or any Third-Party
Originator to deliver any information, report, certification, accountants’
letter or other material when and as required under this Article
XII,
including any failure by the Servicer to identify pursuant to Section
12.06(b)
any
Subcontractor “participating in the servicing function” within the meaning of
Item 1122 of Regulation AB; or
(iii) any
breach by the Servicer of a representation or warranty set forth in Section
12.02(a)
or in a
writing furnished pursuant to Section
12.02(b)
and made
as of a date prior to the Closing Date, to the extent that such breach is not
cured by such closing date, or any breach by the Servicer of a representation
or
warranty in a writing furnished pursuant to Section
12.02(b)
to the
extent made as of a date subsequent to such closing date.
In
the
case of any failure of performance described in clause
(a)(ii)
of this
Section, the Servicer shall promptly reimburse the Seller, the Depositor, as
applicable, and each Person responsible for the preparation, execution or filing
of any report required to be filed with the Commission with respect to the
transactions contemplated hereunder, or for execution of a certification
pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect
to the transactions contemplated by this Agreement, for all costs reasonably
incurred by each such party in order to obtain the information, report,
certification, accountants’ letter or other material not delivered as required
by the Servicer, any Sub-Servicer, any Subcontractor or any Third-Party
Originator.
(b) (i)
Any
failure by the Servicer, any Sub-Servicer, any Subcontractor or any Third-Party
Originator to deliver any information, report, certification, accountants’
letter or other material when and as required under this Article
XII,
or any
breach by the Servicer of a representation or warranty set forth in Section
12.02(a)
or in a
writing furnished pursuant to Section
12.02(b)
and made
as of a date prior to the Closing Date, to the extent that such breach is not
cured by such closing date, or any breach by the Servicer of a representation
or
warranty in a writing furnished pursuant to Section
12.02(b)
to the
extent made as of a date subsequent to such closing date, shall, except as
provided in clause
(ii)
of this
paragraph, immediately and automatically, without notice or grace period,
constitute an Event of Default with respect to the Servicer under this Agreement
and shall entitle the Depositor, in its sole discretion, to terminate the rights
and obligations of the Servicer as servicer under this Agreement without payment
(notwithstanding anything in this Agreement to the contrary) of any compensation
to the Servicer; provided
that to
the extent that any provision of this Agreement expressly provides for the
survival of certain rights or obligations following termination of the Servicer
as servicer, such provision shall be given effect.
(ii) Any
failure by the Servicer, any Sub-Servicer or any Subcontractor to deliver any
information, report, certification or accountants’ letter when and as required
under Section
12.04
or
12.05,
including (except as provided below) any failure by the Servicer to identify
pursuant to Section
12.06(b)
any
Subcontractor “participating in the servicing function” within the meaning of
Item 1122 of Regulation AB, which continues unremedied for ten calendar days
after the date on which such information, report, certification or accountants’
letter was required to be delivered shall constitute an Event of Default with
respect to the Servicer under this Agreement, and shall entitle Depositor,
as
applicable, in its sole discretion to terminate the rights and obligations
of
the Servicer as servicer under this Agreement without payment (notwithstanding
anything in this Agreement to the contrary) of any compensation to the Servicer;
provided
that to
the extent that any provision of this Agreement expressly provides for the
survival of certain rights or obligations following termination of the Servicer
as servicer, such provision shall be given effect.
Neither
the Seller nor the Depositor shall be entitled to terminate the rights and
obligations of the Servicer pursuant to this subparagraph
(b)(ii)
if a
failure of the Servicer to identify a Subcontractor “participating in the
servicing function” within the meaning of Item 1122 of Regulation AB was
attributable solely to the role or functions of such Subcontractor with respect
to mortgage loans other than the Mortgage Loans.
(iii) The
Servicer shall promptly reimburse the Seller (or any designee of the Seller,
such as a master servicer) and the Depositor, as applicable, for all reasonable
expenses incurred by the Seller (or such designee) or the Depositor, as such
are
incurred, in connection with the termination of the Servicer as servicer and
the
transfer of servicing of the Mortgage Loans to a successor servicer. The
provisions of this paragraph shall not limit whatever rights the Seller or
the
Depositor may have under other provisions of this Agreement or otherwise,
whether in equity or at law, such as an action for damages, specific performance
or injunctive relief.
ARTICLE
XIII
MISCELLANEOUS
PROVISIONS
SECTION
13.01 Amendment.
This
Agreement may be amended from time to time by the Depositor, the Servicer and
the Trustee without the consent of any of the Certificateholders, (i) to cure
any ambiguity or defect, (ii) to correct, modify or supplement any provisions
herein (including to give effect to the expectations of Certificateholders),
(iii) to amend the provisions of Section
4.06,
(iv) to
change the timing and/or nature of deposits into the Custodial Account or the
Certificate Account or to change the name in which the Custodial Account is
maintained, provided
that (A)
the Servicer Remittance Date shall in no event be later than the related
Distribution Date, (B) such change shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
Certificateholder and (C) such change shall not result in a reduction of the
rating assigned to any Class of Certificates below the lower of the then-current
rating or the rating assigned to such Certificates as of the Closing Date,
as
evidenced by a letter from each Rating Agency to such effect, (v) to modify,
eliminate or add to any of its provisions to such extent as shall be necessary
or desirable to maintain the qualification of any Trust REMIC created hereunder
as a Trust REMIC at all times that any Certificate is outstanding or to avoid
or
minimize the risk of the imposition of any tax on the Trust Fund pursuant to
the
Code that would be a claim against the Trust Fund, provided
that the
Trustee has received an Opinion of Counsel to the effect that (A) such action
is
necessary or desirable to maintain such qualification or to avoid or minimize
the risk of the imposition of any such tax and (B) such action will not
adversely affect in any material respect the interests of any Certificateholder,
(vi) such amendment is made to conform the terms of this Agreement to the terms
described in the Prospectus dated May 16, 2006 together with the Prospectus
Supplement dated May 19, 2006, or (vii) to make any other provisions with
respect to matters or questions arising under this Agreement which shall not
be
inconsistent with the provisions of this Agreement, provided
that any such action pursuant to clauses (i), (ii), (iii) or (vii),
as
evidenced by either (a) an Opinion of Counsel delivered to the Trustee that
such
action will not adversely affect in any material respect the interests of any
Certificateholder or (b) written notice to the Depositor, the Servicer and
the Trustee from the Rating Agencies that such action will not result in the
reduction or withdrawal of the rating of any outstanding Class of Certificates
with respect to which it is a Rating Agency). No amendment shall be deemed
to
adversely affect in any material respect the interests of any Certificateholder
who shall have consented thereto, and no Opinion of Counsel or Rating Agency
confirmation shall be required to address the effect of any such amendment
on
any such consenting Certificateholder. Notwithstanding the foregoing, neither
an
Opinion of Counsel nor written notice to the Depositor, the Servicer and the
Trustee from the Rating Agencies will be required in connection with an
amendment to the provisions of Section
4.06.
This
Agreement may also be amended from time to time by the Depositor, the Servicer
and the Trustee with the consent of the Holders of Certificates entitled to
at
least 66% of the Voting Rights for the purpose of adding any provisions to
or
changing in any manner or eliminating any of the provisions of this Agreement
or
of modifying in any manner the rights of the Holders of Certificates;
provided,
however,
that no
such amendment shall (i) reduce in any manner the amount of, or delay the timing
of, payments received on Mortgage Loans which are required to be distributed
on
any Certificate without the consent of the Holder of such Certificate, (ii)
adversely affect in any material respect the interests of the Holders of any
Class of Certificates (as evidenced by either (a) an Opinion of Counsel
delivered to the Trustee or (b) written notice to the Depositor, the
Servicer and the Trustee from the Rating Agencies that such action will not
result in the reduction or withdrawal of the rating of any outstanding Class
of
Certificates with respect to which it is a Rating Agency) in a manner, other
than as described in (i) or (iii) modify the consents required by the
immediately preceding clauses
(i)
and
(ii)
without
the consent of the Holders of all Certificates then outstanding. Notwithstanding
any other provision of this Agreement, for purposes of the giving or withholding
of consents pursuant to this Section
13.01,
Certificates registered in the name of the Depositor or the Servicer or any
Affiliate thereof shall be entitled to Voting Rights with respect to matters
affecting such Certificates.
Notwithstanding
any contrary provision of this Agreement, the Trustee shall not consent to
any
amendment to this Agreement unless it shall have first received an Opinion
of
Counsel to the effect that such amendment (i) 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 (ii) is authorized or permitted hereunder.
Promptly
after the execution of any such amendment the Trustee shall furnish a copy
of
such amendment to each Certificateholder.
It
shall
not be necessary for the consent of Certificateholders under this Section
13.01
to
approve the particular form of any proposed amendment, but it shall be
sufficient if such consent shall approve the substance thereof. The manner
of
obtaining such consents and of evidencing the authorization of the execution
thereof by Certificateholders shall be subject to such reasonable regulations
as
the Trustee may prescribe.
The
cost
of any Opinion of Counsel to be delivered pursuant to this Section
13.01
shall be
borne by the Person seeking the related amendment, but in no event shall such
Opinion of Counsel be an expense of the Trustee.
The
Trustee may, but shall not be obligated to enter into any amendment pursuant
to
this Section that affects its rights, duties and immunities under this Agreement
or otherwise.
SECTION
13.02 Recordation
of Agreement; Counterparts.
To the
extent permitted by applicable law, this Agreement is subject to recordation
in
all appropriate public offices for real property records in all of the counties
or other comparable jurisdictions in which any or all of the Mortgaged
Properties are situated, and in any other appropriate public recording office
or
elsewhere. The Servicer shall effect such recordation at the Trust’s expense
upon the request in writing of a Certificateholder, but only if such direction
is accompanied by an Opinion of Counsel (provided at the expense of the
Certificateholder requesting recordation) to the effect that such recordation
would materially and beneficially affect the interests of the Certificateholders
or is required by law.
For
the
purpose of facilitating the recordation of this Agreement as herein provided
and
for other purposes, this Agreement may be executed simultaneously in any number
of counterparts, each of which counterparts shall be deemed to be an original,
and such counterparts shall constitute but one and the same
instrument.
SECTION
13.03 Limitation
on Rights of Certificateholders.
The
death or incapacity of any Certificateholder shall not operate to terminate
this
Agreement or the Trust Fund, nor entitle such Certificateholder’s legal
representative or heirs to claim an accounting or to take any action or commence
any proceeding in any court for a petition or winding up of the Trust Fund,
or
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
No
Certificateholder shall have any right to vote (except as provided herein)
or in
any manner otherwise control the operation and management of the Trust Fund,
or
the obligations of the parties hereto, nor shall anything herein set forth
or
contained in the terms of the Certificates be construed so as to constitute
the
Certificateholders from time to time as partners or members of an association;
nor shall any Certificateholder be under any liability to any third party by
reason of any action taken by the parties to this Agreement pursuant to any
provision hereof.
No
Certificateholder shall have any right by virtue or by availing itself of any
provisions of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement, unless such
Holder previously shall have given to the Trustee a written notice of an Event
of Default and of the continuance thereof, as hereinbefore provided, the Holders
of Certificates evidencing not less than 25% of the Voting Rights evidenced
by
the Certificates shall also have made written request to the Trustee to
institute such action, suit or proceeding in its own name as Trustee hereunder
and shall have offered to the Trustee such reasonable indemnity as it may
require against the costs, expenses, and liabilities to be incurred therein
or
thereby, and the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity shall have neglected or refused to institute any such
action, suit or proceeding; it being understood and intended, and being
expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing itself
or
themselves of any provisions of this Agreement to affect, disturb or prejudice
the rights of the Holders of any other of the Certificates, or to obtain or
seek
to obtain priority over or preference to any other such Holder or to enforce
any
right under this Agreement, except in the manner herein provided and for the
common benefit of all Certificateholders. For the protection and enforcement
of
the provisions of this Section
13.03,
each
and every Certificateholder, the Trustee shall be entitled to such relief as
can
be given either at law or in equity.
SECTION
13.04 Governing
Law.
THIS
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE SUBSTANTIVE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED
IN THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HERETO AND THE CERTIFICATEHOLDERS SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF (OTHER THAN
SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAWS).
SECTION
13.05 Notices.
All
directions, demands and notices hereunder shall be in writing and shall be
deemed to have been duly given when received if personally delivered at or
mailed by first class mail, postage prepaid, or by express delivery service
or
delivered in any other manner specified herein, to (a) in the case of the
Depositor, Stanwich Asset Acceptance Company, L.L.C., Seven Greenwich Office
Park, 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000, Attention:
President, or such other address or telecopy number as may hereafter be
furnished to the Servicer and the Trustee in writing by the Depositor, (b)
in
the case of the Servicer, Homecomings Financial Network, Inc., 0000 X. Xxxxxxx
Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, Attention: Xxxxx Xxxxx, with a copy
to
Residential Funding Corporation, 0000 Xxxxxxxxxx Xxxx Xxxx., Xxxxx 000,
Xxxxxxxxxxx, XX 00000, Attention: Structured Finance, or such other address
or
telecopy number as may hereafter be furnished to the Trustee and the Depositor
in writing by the Servicer and (c) in the case of the Trustee, at its Corporate
Trust Office in Columbia, Maryland, or such other address or telecopy number
as
may hereafter be furnished to the Servicer and the Depositor in writing by
the
Trustee. Any notice required or permitted to be given to a Certificateholder
shall be given by first class mail, postage prepaid, at the address of such
Holder as shown in the Certificate Register. Any notice so mailed within the
time prescribed in this Agreement shall be conclusively presumed to have been
duly given when mailed, whether or not the Certificateholder receives such
notice. A copy of any notice required to be telecopied hereunder also shall
be
mailed to the appropriate party in the manner set forth above.
SECTION
13.06 Severability
of Provisions.
If any
one or more of the covenants, agreements, provisions or terms of this Agreement
shall be for any reason whatsoever held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in no
way
affect the validity or enforceability of the other provisions of this Agreement
or of the Certificates or the rights of the Holders thereof.
SECTION
13.07 Notice
to Rating Agencies.
The
Trustee shall use its best efforts promptly to provide notice to the Rating
Agencies with respect to each of the following of which it has actual
knowledge:
Any
material change or amendment to this Agreement;
The
occurrence of any Servicer Event of Default that has not been cured or
waived;
The
resignation or termination of the Servicer or the Trustee;
The
repurchase or substitution of Mortgage Loans pursuant to or as contemplated
by
Section
2.03;
The
final
payment to the Holders of any Class of Certificates;
Any
change in the location of the Custodial Account or the Certificate Account;
and
Any
event
that would result in the inability of the Trustee, as successor servicer, to
make advances regarding delinquent Mortgage Loans.
In
addition, the Trustee shall make available to each Rating Agency copies of
each
report to Certificateholders described in Section
4.02
and the
Servicer shall promptly furnish to each Rating Agency copies of the
following:
Each
annual statement as to compliance described in Section
12.05(i);
and
Each
annual independent public accountants’ servicing report described in
Section
12.05(ii).
Any
such
notice pursuant to this Section
13.07
shall be
in writing and shall be deemed to have been duly given if personally delivered
at or mailed by first class mail, postage prepaid, or by express delivery
service to Fitch Ratings, Xxx Xxxxx Xxxxxx Xxxxx, Xxx, Xxxx, Xxx Xxxx 00000,
facsimile number: (000) 000-0000; Xxxxx’x Investors Service, Inc., 00 Xxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; and to Standard & Poor’s Ratings Services,
a division of the XxXxxx-Xxxx Companies, Inc., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 or such other addresses as the Rating Agencies may designate in
writing to the parties hereto.
SECTION
13.08 Article
and Section References.
All
article and section references used in this Agreement, unless otherwise
provided, are to articles and sections in this Agreement.
SECTION
13.09 Grant
of Security Interest.
It is
the express intent of the parties hereto that the conveyance of the Mortgage
Loans by the Depositor to the Trustee, be, and be construed as, a sale of the
Mortgage Loans by the Depositor and not a pledge of the Mortgage Loans to secure
a debt or other obligation of the Depositor. However, in the event that,
notwithstanding the aforementioned intent of the parties, the Mortgage Loans
are
held to be property of the Depositor, then, (a) it is the express intent of
the
parties that such conveyance be deemed a pledge of the Mortgage Loans by the
Depositor to the Trustee to secure a debt or other obligation of the Depositor
and (b) (1) this Agreement shall also be deemed to be a security agreement
within the meaning of Articles 8 and 9 of the Uniform Commercial Code as in
effect from time to time in the State of New York; (2) the conveyance provided
for in Section
2.01
hereof
shall be deemed to be a grant by the Depositor to the Trustee of a security
interest in all of the Depositor’s right, title and interest in and to (i) such
Mortgage Loans and all amounts payable to the holders of the Mortgage Loans
in
accordance with the terms thereof and all proceeds of the conversion, voluntary
or involuntary, of the foregoing into cash, instruments, securities or other
property and Prepayment Charges related thereto 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
Depositor’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); (v) the Custodial Account
(other than any amounts representing any Servicer Prepayment Charge Payment
Amount), the Certificate Account (other than any amounts representing any
Servicer Prepayment Charge Payment Amount) 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;
(vi) the Net WAC Rate Carryover Reserve Account; and (vii) the Depositor’s
rights under the Cap Contracts and all payments received under the Cap
Contracts; (3) the obligations secured by such security agreement shall be
deemed to be all of the Depositor’s obligations under this Agreement, including
the obligation to provide to the Certificateholders the benefits of this
Agreement relating to the Mortgage Loans and the Trust Fund; and (4)
notifications to persons holding such property, and acknowledgments, receipts
or
confirmations from persons holding such property, shall be deemed notifications
to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the Trustee for the purpose
of perfecting such security interest under applicable law. Accordingly, the
Depositor hereby grants to the Trustee a security interest in the Mortgage
Loans
and all other property described in clause
(2)
of the
preceding
sentence,
for the
purpose of securing to the Trustee the performance by the Depositor of the
obligations described in clause
(3)
of the
preceding
sentence.
Notwithstanding the foregoing, the parties hereto intend the conveyance pursuant
to Section
2.01
to be a
true, absolute and unconditional sale of the Mortgage Loans and assets
constituting the Trust Fund by the Depositor to the Trustee.
SECTION
13.10 Intention
of Parties.
It is
the express intent of the parties hereto that the conveyance of the Mortgage
Notes, Mortgages, assignments of Mortgages, title insurance policies and any
modifications, extensions and/or assumption agreements and private mortgage
insurance policies relating to the Mortgage Loans by the Seller to the
Depositor, and by the Depositor to the Trustee be, and be construed as, an
absolute sale thereof to the Depositor or the Trustee, as applicable. It is,
further, not the intention of the parties that such conveyance be deemed a
pledge thereof by the Seller to the Depositor, or by the Depositor to the
Trustee. However, in the event that, notwithstanding the intent of the parties,
such assets are held to be the property of the Seller or the Depositor, as
applicable, or if for any other reason the Mortgage Loan Purchase Agreement
or
this Agreement is held or deemed to create a security interest in such assets,
then (i) the Mortgage Loan Purchase Agreement and this Agreement shall each
be
deemed to be a security agreement within the meaning of the Uniform Commercial
Code of the State of New York and (ii) the conveyance provided for in the
Mortgage Loan Purchase Agreement from the Seller to the Depositor, and the
conveyance provided for in this Agreement from the Depositor to the Trustee,
shall be deemed to be an assignment and a grant by the Seller or the Depositor,
as applicable, for the benefit of the Certificateholders, of a security interest
in all of the assets that constitute the Trust Fund, whether now owned or
hereafter acquired.
The
Depositor for the benefit of the Certificateholders shall, to the extent
consistent with this Agreement, take such actions as may be necessary to ensure
that, if this Agreement were deemed to create a security interest in the assets
of the Trust Fund, such security interest would be deemed to be a perfected
security interest of first priority under applicable law and will be maintained
as such throughout the term of the Agreement.
SECTION
13.11 Assignment.
Notwithstanding anything to the contrary contained herein, except as provided
pursuant to Section
6.02,
this
Agreement may not be assigned by the Servicer or the Depositor.
SECTION
13.12 Inspection
and Audit Rights.
The
Servicer agrees that, on reasonable prior notice, it will permit any
representative of the Depositor or the Trustee during the Servicer’s normal
business hours, to examine all the books of account, records, reports and other
papers of the Servicer relating to the Mortgage Loans, to make copies and
extracts therefrom, to cause such books to be audited by independent certified
public accountants selected by the Depositor or the Trustee and to discuss
its
affairs, finances and accounts relating to such Mortgage Loans with its
officers, employees and independent public accountants (and by this provision
the Servicer hereby authorizes such accountants to discuss with such
representative such affairs, finances and accounts), all at such reasonable
times and as often as may be reasonably requested. Any out-of-pocket expense
incident to the exercise by the Depositor or the Trustee of any right under
this
Section
13.12
shall be
borne by the party requesting such inspection, subject to such party’s right to
reimbursement hereunder (in the case of the Trustee, pursuant to Section
8.05
hereof).
SECTION
13.13 Certificates
Nonassessable and Fully Paid.
It is
the intention of the Depositor that Certificateholders shall not be personally
liable for obligations of the Trust Fund, that the interests in the Trust Fund
represented by the Certificates shall be nonassessable for any reason
whatsoever, and that the Certificates, upon due authentication thereof by the
Trustee pursuant to this Agreement, are and shall be deemed fully
paid.
SECTION
13.14 Perfection
Representations.
The
Perfection Representations shall be a part of this Agreement for all
purposes.
SECTION
13.15 Notice
to Holder of Class CE Certificate.
Upon
actual knowledge by a Servicing Officer of an event which constitutes a Servicer
Event of Default under Section
7.01
of this
Agreement or gives rise to an indemnity claim under Sections
3.25,
8.05(b),
10.03(b)
or
14.02(g)
of this
Agreement, such Servicing Officer shall promptly (but in no event later than
two
Business Days following such knowledge) provide written notice to the Holder
of
the Class CE Certificate of such event.
ARTICLE
XIV
RIGHTS
OF
THE CLASS CE CERTIFICATEHOLDER
SECTION
14.01 Reports
and Notices.
(a)
In
connection with the performance of its duties under this Agreement relating
to,
among other things, the collection of Mortgage Loans, the Servicer shall provide
to the Class CE Certificateholder the following notices and reports in a timely
manner and using the same methodology and calculations used in its standard
servicing reports to the Trustee. The Servicer shall send all such notices
and
reports to the Class CE Certificateholder in electronic format unless otherwise
specified herein or agreed to in writing by the Class CE
Certificateholder.
(i) The
Servicer shall, within ten Business Days after each Distribution Date,
commencing in June 2006, provide to the Class CE Certificateholder a report
of
each Mortgage Loan in the Trust Fund, indicating the information contained
in
Exhibit
L
for the
Due Period relating to such Distribution Date and to the extent such information
is reasonably available to the Servicer.
(ii) Within
ten Business Days after each Distribution Date commencing in June 2006, the
Servicer shall provide the Class CE Certificateholder with a report listing
each
Mortgage Loan that has liquidated or paid off. Such report shall specify, if
applicable and to the extent the information is reasonably available to the
Servicer: (a) mortgage loan number; (b) outstanding Stated Principal
Balance of the mortgage loan upon its liquidation; (c) Realized Loss or gain;
(d) Liquidation Proceeds; (e) payoff date; (f) Prepayment Charges
collected.
(iii) Where
applicable, the Servicer shall provide the Class CE Certificateholder with
copies of all primary mortgage insurance claims filed, as well as the actual
amount paid in respect of any claim. Copies of any primary mortgage insurance
claims will be provided to the Class CE Certificateholder within ten Business
Days of their filing with the mortgage insurance company.
(iv) The
Servicer shall provide the Class CE Certificateholder with a copy of the monthly
reporting to the Trustee, and of any notice submitted to the Trustee regarding
a
loan modification. Such notice shall be provided to the Class CE
Certificateholder simultaneous with its delivery to the Trustee.
(v) On
a
monthly basis, the Servicer shall provide the Class CE Certificateholder with
a
delinquency report detailing at a minimum the percentages of 30-day, 60-day
and
90-day delinquencies in the Servicer’s total portfolio that move into
foreclosure and the percentage of foreclosed loans the Servicer’s total
portfolio that remain in foreclosure.
(b) The
Servicer shall make its servicing personnel available during their normal
business hours to respond to reasonable inquiries, either orally or in writing
by facsimile transmission, express mail, or electronic mail, transmitted by
the
Class CE Certificateholder in connection with any Mortgage Loan identified
in a
report under subsection
14.01(a)(i)
through
(iv) which has been given to the Class CE Certificateholder; provided that
the
Servicer shall only be required to provide information that is reasonably
accessible to its servicing personnel.
(c) If
reasonably requested by the Class CE Certificateholder, the Servicer shall
make
available to the Class CE Certificateholder access to the underwriting files
for
defaulted Mortgage Loans, in original, photocopied or imaged form, to the extent
such files have been provided to the Servicer. The Class CE Certificateholder
agrees to protect the confidentiality of the documents and information contained
in underwriting files from all parties other than the Depositor and Trustee,
and
agrees not to remove, xxxx or destroy any of the documents contained
therein.
(d) With
respect to all Mortgage Loans which are serviced at any time by the Servicer
through a Sub-Servicer which has been approved by the Class CE Certificateholder
pursuant to the next succeeding sentence, the Servicer shall be entitled to
rely
for all purposes hereunder, including for purposes of fulfilling its reporting
obligations under this Section
14.01,
on the
accuracy and completeness of any information provided to it by the applicable
subservicer. The Servicer shall not allow any Mortgage Loan to be serviced
by a
Sub-Servicer without the prior written consent of the Class CE
Certificateholder.
(e) The
Servicer shall permit the Class CE Certificateholder to conduct an on-site
review and evaluation of the Servicer’s operations as they relate to the
Mortgage Loans no more than annually, unless circumstances warrant special
review. Such review and evaluation will be conducted upon at least 30 days
written notice to the Servicer by the Class CE Certificateholder, and shall be
conducted at the Class CE Certificateholder’s expense. The review is intended to
benefit the Servicer, as well as to assist the Class CE Certificateholder in
adjusting its monitoring approach to fit the default procedures in place. The
Class CE Certificateholder will conduct such review and evaluation during normal
business hours and use its best efforts to cause the least practicable
interruption to the Servicer’s business. During the course of the on-site
evaluation, the Servicer will make available to the Class CE Certificateholder
access to the Servicer’s policies and procedures regarding the management and
liquidation of defaulted Mortgage Loans. The written findings of such review
and
evaluation will be presented to the Servicer for review and comment. Other
than
a comfort letter to the Depositor summarizing the review and evaluation of
the
Servicer, the Class CE Certificateholder will not divulge the written findings
of such review to any party without the prior written consent of the
Servicer.
SECTION
14.02 Class
CE Certificateholder’s Directions With Respect to Defaulted Mortgage
Loans.
(a)
All
parties to this Agreement acknowledge that the Class CE Certificateholder’s
advice is made in the form of directions, and that the Class CE
Certificateholder has the right to direct the Servicer in performing its duties
under this Agreement. The Servicer must accept such advice, subject to the
duties of the Servicer set forth in this Agreement.
(b) The
Class
CE Certificateholder may provide the Servicer with advice regarding the
management of specific defaulted Mortgage Loans. Such advice may be made in
writing, in the form of electronic mail. The advice provided to the Servicer
may
be based on observations made in conjunction with the data provided pursuant
to
the Section
14.01
of this
Agreement, or in conjunction with the Class CE Certificateholder’s periodic
review of the Servicer’s operations. The advice may include comparable analysis
of the performance of the Mortgage Loans in the Trust Fund with similar mortgage
loans serviced by other mortgage loan servicers. Such advice also may take
the
form of benchmark comparisons that identify and interpret the Servicer’s
strengths and weaknesses relative to similar, unidentified servicers in the
industry.
(c) In
all
cases where the Class CE Certificateholder makes directions to the Servicer,
the
Class CE Certificateholder will protect the confidentiality of the Servicer
and
other servicers in the industry whose work is monitored by the Class CE
Certificateholder. Under no circumstances will the Class CE Certificateholder
divulge any materials confidential of the Servicer, whether a party to this
Agreement or not, or the details of any Servicer’s proprietary system or
approaches.
(d) All
advice offered to the Servicer by the Class CE Certificateholder will be kept
confidential by the Class CE Certificateholder, except as disclosed as a finding
in the Class CE Certificateholder’s review and evaluation of the Servicer, as
discussed in Section
13.01(e),
or in
reports to the Depositor.
(e) The
Servicer’s obligations under this Article
XIV
shall
terminate upon the termination of the Trust Fund pursuant to Section
9.01.
(f) Neither
the Servicer nor the Class CE Certificateholder nor any of their respective
directors, officers, employees or agents shall be under any liability for any
action taken or for refraining from the taking of any action in good faith
pursuant to this Article
XIV
or for
errors in judgment; provided,
however,
that
this provision shall not protect the Servicer or the Class CE Certificateholder
or any such Person against any liability which would otherwise be imposed by
reason of willful malfeasance or bad faith. The Servicer and the Class CE
Certificateholder and any director, officer, employee or agent thereof may
rely
in good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder.
(g) The
Servicer or the Class CE Certificateholder, as applicable, (“Indemnitor”)
shall
indemnify, defend and hold harmless the other (“Indemnitee”)
and
its officers, directors, agents and employees from and against all claims,
losses, expenses, fees (including attorneys’ and expert witnesses’ fees), costs
and judgments involving the rights and obligations of this Article
XIV
that may
be asserted against Indemnitee (a) that result from the acts or omissions of
the
Indemnitor (including, without limitation, any advice or directions provided
pursuant to this Section
14.02),
or (b)
result from third party claims of intellectual property
infringement.
(h) The
Class
CE Certificateholder agrees that all information supplied by or on behalf of
the
Servicer shall be used by the Class CE Certificateholder only for the benefit
of
the Certificateholders of the Trust Fund. Notwithstanding anything to the
contrary in this Agreement, the Class CE Certificateholder shall be entitled
to
retain all records or other information supplied to Class CE Certificateholder
pursuant to this Agreement.
[Signatures
follow]
IN
WITNESS WHEREOF, the Depositor, the Servicer and the Trustee have caused their
names to be signed hereto by their respective officers thereunto duly
authorized, in each case as of the day and year first above
written.
|
STANWICH
ASSET ACCEPTANCE COMPANY, L.L.C., as Depositor
|
|
|
By:
|
/s/ Xxxxx X. Xxxx |
|
Name:
|
Xxxxx X. Xxxx |
|
Title:
|
President |
|
HOMECOMINGS
FINANCIAL NETWORK, INC., as Servicer
|
|
|
By:
|
/s/ Xxxxxx X. Xxxxx |
|
Name:
|
Xxxxxx X. Xxxxx |
|
Title:
|
Managing Director, Servicing |
|
XXXXX
FARGO BANK, N.A., as Trustee
|
|
|
By:
|
/s/ Xxxxxx X. Xxxxxx |
|
Name:
|
Xxxxxx X. Xxxxxx |
|
Title:
|
Assistant Vice President |
|
)
|
||
|
)
|
ss.:
|
|
|
COUNTY
OF FAIRFIELD
|
)
|
On
the 19th day of May 2006, before me, a notary public in and for said
State, personally appeared Xxxxx X. Xxxx, known to me to be President of
Stanwich Asset Acceptance Company, L.L.C., one of the entities that executed
the
within instrument, and also known to me to be the person who executed it on
behalf of said entity, and acknowledged to me that such entity executed the
within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
| /s/ Xxxxx X. Xxxxx | |
|
Notary
Public
|
[Notarial
Seal]
|
STATE
OF MINNESOTA
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF HENNEPIN
|
)
|
On
the
24th day of May 2006, before me, a notary public in and for said State,
personally appeared Xxxxxx X. Xxxxx, known to me to be a Managing Director
of
Homecomings Financial Network, Inc., one of the entities that executed the
within instrument, and also known to me to be the person who executed it
on
behalf of said entity, and acknowledged to me that such entity executed the
within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
| /s/ Xxx Xxx Xxxxx | |
|
Notary
Public
|
[Notarial
Seal]
|
STATE
OF MARYLAND
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF XXXXXX
|
)
|
On
the
24th day of May 2006, before me, a notary public in and for said State,
personally appeared Xxxxxx X. Xxxxxx, known to me to be an Assistant Vice
President of Xxxxx Fargo Bank, N.A., one of the entities that executed the
within instrument, and also known to me to be the person who executed it
on
behalf of said entity, and acknowledged to me that such entity executed the
within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
|
/s/
Xxxxxx X. Xxxxxxx
|
|
|
Notary
Public
|
[Notarial
Seal]
Appendix
A
DEFINITIONS
AND USAGE
The
following rules of construction and usage shall be applicable to any agreement
or instrument that is governed by this Appendix:
(a) All
terms
defined in this Appendix shall have the defined meanings when used in any
agreement or instrument governed hereby and in any certificate or other document
made or delivered pursuant thereto unless otherwise defined
therein.
(b) As
used
herein, in any agreement or instrument governed hereby and in any certificate
or
other document made or delivered pursuant thereto, accounting terms not defined
in this Appendix or in any such agreement, instrument, certificate or other
document, and accounting terms partly defined in this Appendix or in any
such
agreement, instrument, certificate or other document, to the extent not defined,
shall have the respective meanings given to them under generally accepted
accounting principles as in effect on the date of such agreement or instrument.
To the extent that the definitions of accounting terms in this Appendix or
in
any such agreement, instrument, certificate or other document are inconsistent
with the meanings of such terms under generally accepted accounting principles,
the definitions contained in this Appendix or in any such instrument,
certificate or other document shall control.
The
words
“hereof,” “herein,” “hereunder” and words of similar import when used in an
agreement or instrument refer to such agreement or instrument as a whole
and not
to any particular provision or subdivision thereof; references in an agreement
or instrument to “Article,” “Section” or another subdivision or to an attachment
are, unless the context otherwise requires, to an article, section or
subdivision of or an attachment to such agreement or instrument; and the
term
“including” and its variations mean “including without limitation.”
The
definitions contained in this Appendix are equally applicable to both the
singular and plural forms of such terms and to the masculine as well as to
the
feminine and neuter genders of such terms.
Any
agreement, instrument or statute defined or referred to below or in any
agreement or instrument that is governed by this Appendix means such agreement
or instrument or statute as from time to time amended, modified or supplemented,
including (in the case of agreements or instruments) by waiver or consent
and
(in the case of statutes) by succession of comparable successor statutes
and
includes (in the case of agreements or instruments) references to all
attachments thereto and instruments incorporated therein. References to a
Person
are also to its permitted successors and assigns.
Definitions
“Accepted
Servicing Practices”:
The
servicing standards set forth in Section
3.01
of the
Pooling and Servicing Agreement.
“Accrued
Certificate Interest”:
With
respect to any Class A Certificate, Mezzanine Certificate and the Class CE
Certificates and each Distribution Date, interest accrued during the related
Interest Accrual Period at the Pass-Through Rate for such Certificate for
such
Distribution Date on the Certificate Principal Balance, in the case of the
Class
A Certificates and the Mezzanine Certificates, or on the Notional Amount,
in the
case of the Class CE Certificates, of such Certificate immediately prior
to such
Distribution Date. The Class P Certificates are not entitled to distributions
in
respect of interest and, accordingly, will not accrue interest. All
distributions of interest on the Class A Certificates and the Mezzanine
Certificates will be calculated on the basis of a 360-day year and the actual
number of days in the applicable Interest Accrual Period. All distributions
of
interest on the Class CE Certificates will be based on a 360-day year consisting
of twelve 30-day months. Accrued Certificate Interest with respect to each
Distribution Date, as to any Class A Certificate, Mezzanine Certificate or
the
Class CE Certificates, shall be reduced by an amount equal to the portion
allocable to such Certificate pursuant to Section
1.02
of the
Pooling and Servicing Agreement 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
3.24
of the
Pooling and 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 the Class
CE
Certificates, shall be reduced by an amount equal to the portion allocable
to
the Class CE Certificates of Realized Losses, if any, pursuant to Section
4.04
of the
Pooling and Servicing Agreement.
“Additional
Form 10-D Disclosure”
has
the
meaning set forth in Section
4.06(a)
of the
Pooling and Servicing Agreement.
“Additional
Form 10-K Disclosure”
has
the
meaning set forth in Section
4.06(b)
of the
Pooling and Servicing Agreement.
“Additional
Servicer”
means
(i) each affiliated servicer meeting the requirements of Item 1108(a)(2)(ii)
of
Regulation AB that services any of the Mortgage Loans, and (ii) each
unaffiliated servicer meeting the requirements of Item 1108(a)(2)(iii) of
Regulation AB (other than the Trustee), who services 10% or more of the Mortgage
Loans.
“Adjustable-Rate
Mortgage Loan”:
Each
of the Mortgage Loans identified on 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 such 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.
“Advance”:
As to
any Mortgage Loan or REO Property, any advance made by the Servicer in respect
of any Distribution Date pursuant to Section
4.03
of the
Pooling and Servicing Agreement.
“Advance
Facility”:
As
defined in Section
3.26(a)
of the
Pooling and Servicing Agreement.
“Advance
Facility Trustee”:
As
defined in Section
3.26(b)
of the
Pooling and Servicing Agreement.
“Advancing
Person”:
As
defined in Section
3.26(a)
of the
Pooling and Servicing Agreement.
“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.
“Allocated
Realized Loss Amount”:
With
respect to any Distribution Date and any Class of Class A Certificates or
Mezzanine Certificates, the sum of (i) any Realized Losses allocated to such
Class of Certificates on such Distribution Date and (ii) the amount of any
Allocated Realized Loss Amount for such Class of Certificates remaining unpaid
from the previous Distribution Date minus
the
amount of the increase in the related Certificate Principal Balance due to
the
receipt of Subsequent Recoveries as provided in Section
4.01
of the
Pooling and Servicing Agreement.
“Assignment”:
An
assignment of Mortgage, notice of transfer or equivalent instrument, in
recordable form (excepting therefrom, if applicable, the mortgage recordation
information which has not been required pursuant to Section
2.01
of the
Pooling and Servicing Agreement or returned by the applicable recorder’s
office), which is sufficient under the laws of the jurisdiction wherein the
related Mortgaged Property is located to reflect of record the sale of the
Mortgage, which assignment, notice of transfer or equivalent instrument may
be
in the form of one or more blanket assignments covering Mortgages secured
by
Mortgaged Properties located in the same county, if permitted by
law.
“Available
Distribution Amount”:
With
respect to any Distribution Date, an amount equal to (1) the sum of
(a) the aggregate of the amounts on deposit in the Custodial Account and
Certificate Account as of the close of business on the related Determination
Date, (b) the aggregate of any amounts received in respect of an REO
Property withdrawn from any REO Account and deposited in the Certificate
Account
for such Distribution Date pursuant to Section
3.23
of the
Pooling and Servicing Agreement, (c) the aggregate of any amounts deposited
in the Certificate Account by the Servicer in respect of Prepayment Interest
Shortfalls for such Distribution Date pursuant to Section
3.24
of the
Pooling and Servicing Agreement, (d) the aggregate of any Advances made by
the Servicer for such Distribution Date pursuant to Section
4.03
of the
Pooling and Servicing Agreement and (e) the aggregate of any Advances made
by the Trustee as successor Servicer or any other successor Servicer for
such
Distribution Date pursuant to Section
7.02
of the
Pooling and Servicing Agreement, reduced (to not less than zero), by
(2) the portion of the amount described in clause
(1)(a)
above
that represents (i) Monthly Payments on the Mortgage Loans received from a
Mortgagor on or prior to the Determination Date but due during any Due Period
subsequent to the related Due Period, (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) (other than Prepayment Charges),
(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
Custodian, the Seller or any Sub-Servicer pursuant to Section
3.11,
Section
3.12,
Section
8.05
of the
Pooling and Servicing Agreement or otherwise payable in respect of Extraordinary
Trust Fund Expenses, (v) the Trustee Fee payable from the Certificate Account
pursuant to Section
8.05
of the
Pooling and Servicing Agreement, (vi) amounts deposited in the Custodial
Account
or the Certificate Account in error and (vii) the amount of any Prepayment
Charges collected by the Servicer in connection with the Principal Prepayment
of
any of the Mortgage Loans or any Servicer Prepayment Charge Payment
Amount.
“Bankruptcy
Code”:
The
Bankruptcy Reform Act of 1978 (Title 11 of the United States Code), as
amended.
“Bankruptcy
Loss”:
With
respect to any Mortgage Loan, a Realized Loss resulting from a Deficient
Valuation or Debt Service Reduction.
“Bloomberg”:
As
defined in Section
4.02
of the
Pooling and Servicing Agreement.
“Book-Entry
Certificate”:
The
Class A Certificates and the Mezzanine 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
5.01.
“Business
Day”:
Any
day other than a Saturday, a Sunday or a day on which banking or savings
and
loan institutions in the State of Texas, the State of Minnesota, the State
of
New York or in any city in which the Corporate Trust Office of the Trustee
is
located, are authorized or obligated by law or executive order to be
closed.
“Cap
Contracts”:
Collectively, the Class A Cap Contract and the Mezzanine Cap
Contract.
“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 or subordinate
mortgage on the related Mortgaged Property and any closing costs related
to such
Refinance Mortgage Loan.
“Certificate”:
Any
one of the Xxxxxxxxxx Mortgage Loan Trust, Series 2006-RFC1 Asset-Backed
Pass-Through Certificates, Class A-1, Class A-2, Class X-0, Xxxxx X-0, Class
M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class M-6, Class M-7, Class
M-8, Class M-9, Class M-10, Class CE, Class P and Class R issued under the
Pooling and Servicing Agreement.
“Certificate
Account”:
The
trust account or accounts created and maintained by the Trustee pursuant
to
Section
3.10(b)
of the
Pooling and Servicing Agreement, which shall be entitled “Xxxxx Fargo Bank,
N.A., as Trustee, in trust for the registered holders of Xxxxxxxxxx Mortgage
Loan Trust, Series 2006-RFC1 Asset-Backed Pass-Through Certificates.” The
Certificate Account must be an Eligible Account.
“Certificate
Factor”:
With
respect to any Class of Regular 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 the Notional Amount, in
the
case of the Class CE Certificates) of such Class of Certificates on such
Distribution Date (after giving effect to any distributions of principal
and in
the case of the Class A Certificates, the Mezzanine Certificates and the
Class
CE Certificates, the allocations of Realized Losses in reduction of the
Certificate Principal Balance (or the Notional Amount, in the case of the
Class
CE Certificates) of such Class of Certificates to be made on such Distribution
Date), and the denominator of which is the initial aggregate Certificate
Principal Balance (or the Notional Amount, in the case of the Class CE
Certificates) of such Class of Certificates as of the Closing Date.
“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 purpose of the Pooling and
Servicing Agreement and, solely for the purpose of giving any consent pursuant
to the Pooling and Servicing Agreement, any Certificate registered in the
name
of the Depositor or the Servicer 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
13.01
of the
Pooling and Servicing Agreement. The Trustee may conclusively rely upon a
certificate of the Depositor 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 shall be required to recognize as a “Holder” or “Certificateholder”
only the Person in whose name a Certificate is registered in the Certificate
Register.
“Certificate
Owner”:
With
respect to a Book-Entry Certificate, the Person who is the beneficial owner
of
such Certificate as reflected on the books of the Depository or on the books
of
a Depository Participant or on the books of an indirect participating brokerage
firm for which a Depository Participant acts as agent.
“Certificate
Principal Balance”:
With
respect to each Class A Certificate, Mezzanine Certificate or Class P
Certificate as of any date of determination, the Certificate Principal Balance
of such Certificate on the Distribution Date immediately prior to such date
of
determination plus
any
Subsequent Recoveries added to the Certificate Principal Balance of such
Certificate pursuant to Section
4.01
of the
Pooling and Servicing Agreement, minus
all
distributions allocable to principal made thereon and, in the case of the
Class
A Certificates and the Mezzanine Certificates, Realized Losses allocated
thereto
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 the Class CE Certificates 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
Balance of the REMIC I Regular Interests over (B) the then aggregate Certificate
Principal Balance of the Class A Certificates, the Mezzanine Certificates
and
the Class P Certificates then outstanding.
“Certificate
Register”:
The
register maintained pursuant to Section
5.02
of the
Pooling and Servicing Agreement.
“Class”:
Collectively, all of the Certificates bearing the same class
designation.
“Class
A Cap Contract”:
The
cap contract, dated as of the Closing Date, between the Trustee on behalf
of the
Trust and the counterparty thereunder for the benefit of the Holders of the
Class A Certificates in the form attached to the Pooling and Servicing Agreement
as Exhibit
K.
“Class
A-1 Certificates”:
Any
one of the Class A-1 Certificates executed, authenticated and delivered by the
Trustee, substantially in the form annexed hereto as Exhibit
A-1
and
evidencing (i) a Regular Interest in REMIC II for purposes of the REMIC
Provisions and (ii) the right to receive payments under the Class A Cap Contract
to the extent described herein.
“Class
A-2 Certificates”:
Any
one of the Class A-2 Certificates executed, authenticated and delivered by
the
Trustee, substantially in the form annexed hereto as Exhibit
A-2
and
evidencing (i) a Regular Interest in REMIC II for purposes of the REMIC
Provisions and (ii) the right to receive payments under the Class A Cap Contract
to the extent described herein.
“Class
A-3 Certificates”:
Any
one of the Class A-3 Certificates executed, authenticated and delivered by
the
Trustee, substantially in the form annexed hereto as Exhibit
A-3
and
evidencing (i) a Regular Interest in REMIC II for purposes of the REMIC
Provisions and (ii) the right to receive payments under the Class A Cap Contract
to the extent described herein.
“Class
A-4 Certificates”:
Any
one of the Class A-4 Certificates executed, authenticated and delivered by
the
Trustee, substantially in the form annexed hereto as Exhibit
A-4
and
evidencing (i) a Regular Interest in REMIC II for purposes of the REMIC
Provisions and (ii) the right to receive payments under the Class A Cap Contract
to the extent described herein.
“Class
A Certificates”:
Collectively, the Class A-1 Certificates, the Class A-2 Certificates, the
Class
A-3 Certificates and the Class A-4 Certificates.
“Class
A Principal Distribution Amount”:
With
respect to any Distribution Date, the excess of (x) the aggregate Certificate
Principal Balance of the Class A Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i) the applicable
Subordination Percentage and (ii) the aggregate Stated Principal Balance
of the
Mortgage Loans as of the last day of the related Due Period and (B) the excess,
if any, of the aggregate Stated Principal Balance of the Mortgage Loans as
of
the last day of the related Due Period over
the
Overcollateralization Floor Amount.
“Class
CE Certificate”:
Any
one of the Class CE Certificates executed, authenticated and delivered by
the
Trustee, substantially in the form annexed hereto as Exhibit
A-15
and
evidencing two Regular Interests in REMIC II for purposes of the REMIC
Provisions.
“Class
M-1 Certificate”:
Any
one of the Class M-1 Certificates executed, authenticated and delivered by
the
Trustee, substantially in the form annexed hereto as Exhibit
A-5
and
evidencing (i) a Regular Interest in REMIC II for purposes of the REMIC
Provisions and (ii) the right to receive payments under the Mezzanine Cap
Contract to the extent described herein.
“Class
M-1 Principal Distribution Amount”:
With
respect to any Distribution Date, the excess of (x) the sum of (i) the aggregate
Certificate Principal Balance of the Class A Certificates (after taking into
account the distribution of the Class A Principal Distribution Amount on
such
Distribution Date) and (ii) the Certificate Principal Balance of the Class
M-1
Certificates immediately prior to such Distribution Date over (y) the lesser
of
(A) the product of (i) the applicable Subordination Percentage and (ii) the
aggregate Stated Principal Balance of the Mortgage Loans as of the last day
of
the related Due Period and (B) the excess, if any, of the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related
Due
Period over
the
Overcollateralization Floor Amount.
“Class
M-2 Certificate”:
Any
one of the Class M-2 Certificates executed, authenticated and delivered by
the
Trustee, substantially in the form annexed hereto as Exhibit
A-6
and
evidencing (i) a Regular Interest in REMIC II for purposes of the REMIC
Provisions and (ii) the right to receive payments under the Mezzanine Cap
Contract to the extent described herein.
“Class
M-2 Principal Distribution Amount”:
With
respect to any Distribution Date, the excess of (x) the sum of (i) the aggregate
Certificate Principal Balance of the Class A Certificates (after taking into
account the distribution of the Class A Principal Distribution Amount on
such
Distribution Date), (ii) the Certificate Principal Balance of the Class M-1
Certificates (after taking into account the distribution of the Class M-1
Principal Distribution Amount on such Distribution Date) and (iii) the
Certificate Principal Balance of the Class M-2 Certificates immediately prior
to
such Distribution Date over (y) the lesser of (A) the product of (i) the
applicable Subordination Percentage and (ii) the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period
and
(B) the excess, if any, of the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period over
the
Overcollateralization Floor Amount.
“Class
M-3 Certificate”:
Any
one of the Class M-3 Certificates executed, authenticated and delivered by
the
Trustee, substantially in the form annexed hereto as Exhibit
A-7
and
evidencing (i) a Regular Interest in REMIC II for purposes of the REMIC
Provisions and
(ii)
the right to receive payments
under
the Mezzanine Cap Contract to the extent described herein.
“Class
M-3 Principal Distribution Amount”:
With
respect to any Distribution Date, the excess of (x) the sum of (i) the aggregate
Certificate Principal Balance of the Class A Certificates (after taking into
account the distribution of the Class A Principal Distribution Amount on
such
Distribution Date), (ii) the Certificate Principal Balance of the Class M-1
Certificates (after taking into account the distribution of the Class M-1
Principal Distribution Amount on such Distribution Date), (iii) the Certificate
Principal Balance of the Class M-2 Certificates (after taking into account
the
distribution of the Class M-2 Principal Distribution Amount on such Distribution
Date) and (iv) the Certificate Principal Balance of the Class M-3 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) the applicable Subordination Percentage and (ii) the aggregate
Stated Principal Balance of the Mortgage Loans as of the last day of the
related
Due Period and (B) the excess, if any, of the aggregate Stated Principal
Balance
of the Mortgage Loans as of the last day of the related Due Period over
the
Overcollateralization Floor Amount.
“Class
M-4 Certificate”:
Any
one of the Class M-4 Certificates executed, authenticated and delivered by
the
Trustee, substantially in the form annexed hereto as Exhibit
A-8
and
evidencing (i) a Regular Interest in REMIC II for purposes of the REMIC
Provisions and (ii) the right to receive payments under the Mezzanine Cap
Contract to the extent described herein.
“Class
M-4 Principal Distribution Amount”:
With
respect to any Distribution Date, the excess of (x) the sum of (i) the aggregate
Certificate Principal Balance of the Class A Certificates (after taking into
account the distribution of the Class A Principal Distribution Amount on
such
Distribution Date), (ii) the Certificate Principal Balance of the Class M-1
Certificates (after taking into account the distribution of the Class M-1
Principal Distribution Amount on such Distribution Date), (iii) the Certificate
Principal Balance of the Class M-2 Certificates (after taking into account
the
distribution of the Class M-2 Principal Distribution Amount on such Distribution
Date), (iv) the Certificate Principal Balance of the Class M-3 Certificates
(after taking into account the distribution of the Class M-3 Principal
Distribution Amount on such Distribution Date) and (v) the Certificate Principal
Balance of the Class M-4 Certificates immediately prior to such Distribution
Date over (y) the lesser of (A) the product of (i) the applicable Subordination
Percentage and (ii) the aggregate Stated Principal Balance of the Mortgage
Loans
as of the last day of the related Due Period and (B) the excess, if any,
of the
aggregate Stated Principal Balance of the Mortgage Loans as of the last day
of
the related Due Period over
the
Overcollateralization Floor Amount.
“Class
M-5 Certificate”:
Any
one of the Class M-5 Certificates executed, authenticated and delivered by
the
Trustee, substantially in the form annexed hereto as Exhibit
A-9
and
evidencing (i) a Regular Interest in REMIC II for purposes of the REMIC
Provisions and (ii) the right to receive payments under the Mezzanine Cap
Contract to the extent described herein.
“Class
M-5 Principal Distribution Amount”:
With
respect to any Distribution Date, the excess of (x) the sum of (i) the aggregate
Certificate Principal Balance of the Class A Certificates (after taking into
account the distribution of the Class A Principal Distribution Amount on
such
Distribution Date), (ii) the Certificate Principal Balance of the Class M-1
Certificates (after taking into account the distribution of the Class M-1
Principal Distribution Amount on such Distribution Date), (iii) the Certificate
Principal Balance of the Class M-2 Certificates (after taking into account
the
distribution of the Class M-2 Principal Distribution Amount on such Distribution
Date), (iv) the Certificate Principal Balance of the Class M-3 Certificates
(after taking into account the distribution of the Class M-3 Principal
Distribution Amount on such Distribution Date), (v) the Certificate Principal
Balance of the Class M-4 Certificates (after taking into account the
distribution of the Class M-4 Principal Distribution Amount on such Distribution
Date) and (vi) the Certificate Principal Balance of the Class M-5 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) the applicable Subordination Percentage and (ii) the aggregate
Stated Principal Balance of the Mortgage Loans as of the last day of the
related
Due Period and (B) the excess, if any, of the aggregate Stated Principal
Balance
of the Mortgage Loans as of the last day of the related Due Period over
the
Overcollateralization Floor Amount.
“Class
M-6 Certificate”:
Any
one of the Class M-6 Certificates executed, authenticated and delivered by
the
Trustee, substantially in the form annexed hereto as Exhibit
A-10
and
evidencing (i) a Regular Interest in REMIC II for purposes of the REMIC
Provisions and (ii) the right to receive payments under the Mezzanine Cap
Contract to the extent described herein.
“Class
M-6 Principal Distribution Amount”:
With
respect to any Distribution Date, the excess of (x) the sum of (i) the aggregate
Certificate Principal Balance of the Class A Certificates (after taking into
account the distribution of the Class A Principal Distribution Amount on
such
Distribution Date), (ii) the Certificate Principal Balance of the Class M-1
Certificates (after taking into account the distribution of the Class M-1
Principal Distribution Amount on such Distribution Date), (iii) the Certificate
Principal Balance of the Class M-2 Certificates (after taking into account
the
distribution of the Class M-2 Principal Distribution Amount on such Distribution
Date), (iv) the Certificate Principal Balance of the Class M-3 Certificates
(after taking into account the distribution of the Class M-3 Principal
Distribution Amount on such Distribution Date), (v) the Certificate Principal
Balance of the Class M-4 Certificates (after taking into account the
distribution of the Class M-4 Principal Distribution Amount on such Distribution
Date), (vi) the Certificate Principal Balance of the Class M-5 Certificates
(after taking into account the distribution of the Class M-5 Principal
Distribution Amount on such Distribution Date) and (vii) the Certificate
Principal Balance of the Class M-6 Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i) the applicable
Subordination Percentage and (ii) the aggregate Stated Principal Balance
of the
Mortgage Loans as of the last day of the related Due Period and (B) the excess,
if any, of the aggregate Stated Principal Balance of the Mortgage Loans as
of
the last day of the related Due Period over
the
Overcollateralization Floor Amount.
“Class
M-7 Certificate”:
Any
one of the Class M-7 Certificates executed, authenticated and delivered by
the
Trustee, substantially in the form annexed hereto as Exhibit
A-11
and
evidencing (i) a Regular Interest in REMIC II for purposes of the REMIC
Provisions and (ii) the right to receive payments under the Mezzanine Cap
Contract to the extent described herein.
“Class
M-7 Principal Distribution Amount”:
With
respect to any Distribution Date, the excess of (x) the sum of (i) the aggregate
Certificate Principal Balance of the Class A Certificates (after taking into
account the distribution of the Class A Principal Distribution Amount on
such
Distribution Date), (ii) the Certificate Principal Balance of the Class M-1
Certificates (after taking into account the distribution of the Class M-1
Principal Distribution Amount on such Distribution Date), (iii) the Certificate
Principal Balance of the Class M-2 Certificates (after taking into account
the
distribution of the Class M-2 Principal Distribution Amount on such Distribution
Date), (iv) the Certificate Principal Balance of the Class M-3 Certificates
(after taking into account the distribution of the Class M-3 Principal
Distribution Amount on such Distribution Date), (v) the Certificate Principal
Balance of the Class M-4 Certificates (after taking into account the
distribution of the Class M-4 Principal Distribution Amount on such Distribution
Date), (vi) the Certificate Principal Balance of the Class M-5 Certificates
(after taking into account the distribution of the Class M-5 Principal
Distribution Amount on such Distribution Date), (vii) the Certificate Principal
Balance of the Class M-6 Certificates (after taking into account the
distribution of the Class M-6 Principal Distribution Amount on such Distribution
Date) and (viii) the Certificate Principal Balance of the Class M-7 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) the applicable Subordination Percentage and (ii) the aggregate
Stated Principal Balance of the Mortgage Loans as of the last day of the
related
Due Period and (B) the excess, if any, of the aggregate Stated Principal
Balance
of the Mortgage Loans as of the last day of the related Due Period over
the
Overcollateralization Floor Amount.
“Class
M-8 Certificate”:
Any
one of the Class M-8 Certificates executed, authenticated and delivered by
the
Trustee, substantially in the form annexed hereto as Exhibit
A-12
and
evidencing (i) a Regular Interest in REMIC II for purposes of the REMIC
Provisions and (ii) the right to receive payments under the Mezzanine Cap
Contract to the extent described herein.
“Class
M-8 Principal Distribution Amount”:
With
respect to any Distribution Date, the excess of (x) the sum of (i) the aggregate
Certificate Principal Balance of the Class A Certificates (after taking into
account the distribution of the Class A Principal Distribution Amount on
such
Distribution Date), (ii) the Certificate Principal Balance of the Class M-1
Certificates (after taking into account the distribution of the Class M-1
Principal Distribution Amount on such Distribution Date), (iii) the Certificate
Principal Balance of the Class M-2 Certificates (after taking into account
the
distribution of the Class M-2 Principal Distribution Amount on such Distribution
Date), (iv) the Certificate Principal Balance of the Class M-3 Certificates
(after taking into account the distribution of the Class M-3 Principal
Distribution Amount on such Distribution Date), (v) the Certificate Principal
Balance of the Class M-4 Certificates (after taking into account the
distribution of the Class M-4 Principal Distribution Amount on such Distribution
Date), (vi) the Certificate Principal Balance of the Class M-5 Certificates
(after taking into account the distribution of the Class M-5 Principal
Distribution Amount on such Distribution Date), (vii) the Certificate Principal
Balance of the Class M-6 Certificates (after taking into account the
distribution of the Class M-6 Principal Distribution Amount on such Distribution
Date), (viii) the Certificate Principal Balance of the Class M-7 Certificates
(after taking into account the distribution of the Class M-7 Principal
Distribution Amount on such Distribution Date) and (ix) the Certificate
Principal Balance of the Class M-8 Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i) the applicable
Subordination Percentage and (ii) the aggregate Stated Principal Balance
of the
Mortgage Loans as of the last day of the related Due Period and (B) the excess,
if any, of the aggregate Stated Principal Balance of the Mortgage Loans as
of
the last day of the related Due Period over
the
Overcollateralization Floor Amount.
“Class
M-9 Certificate”:
Any
one of the Class M-9 Certificates executed, authenticated and delivered by
the
Trustee, substantially in the form annexed hereto as Exhibit
A-13
and
evidencing (i) a Regular Interest in REMIC II for purposes of the REMIC
Provisions and (ii) the right to receive payments under the Mezzanine Cap
Contract to the extent described herein.
“Class
M-9 Principal Distribution Amount”:
With
respect to any Distribution Date, the excess of (x) the sum of (i) the aggregate
Certificate Principal Balance of the Class A Certificates (after taking into
account the distribution of the Class A Principal Distribution Amount on
such
Distribution Date), (ii) the Certificate Principal Balance of the Class M-1
Certificates (after taking into account the distribution of the Class M-1
Principal Distribution Amount on such Distribution Date), (iii) the Certificate
Principal Balance of the Class M-2 Certificates (after taking into account
the
distribution of the Class M-2 Principal Distribution Amount on such Distribution
Date), (iv) the Certificate Principal Balance of the Class M-3 Certificates
(after taking into account the distribution of the Class M-3 Principal
Distribution Amount on such Distribution Date), (v) the Certificate Principal
Balance of the Class M-4 Certificates (after taking into account the
distribution of the Class M-4 Principal Distribution Amount on such Distribution
Date), (vi) the Certificate Principal Balance of the Class M-5 Certificates
(after taking into account the distribution of the Class M-5 Principal
Distribution Amount on such Distribution Date), (vii) the Certificate Principal
Balance of the Class M-6 Certificates (after taking into account the
distribution of the Class M-6 Principal Distribution Amount on such Distribution
Date), (viii) the Certificate Principal Balance of the Class M-7 Certificates
(after taking into account the distribution of the Class M-7 Principal
Distribution Amount on such Distribution Date), (ix) the Certificate Principal
Balance of the Class M-8 Certificates (after taking into account the
distribution of the Class M-8 Principal Distribution Amount on such Distribution
Date) and (x) the Certificate Principal Balance of the Class M-9 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) the applicable Subordination Percentage and (ii) the aggregate
Stated Principal Balance of the Mortgage Loans as of the last day of the
related
Due Period and (B) the excess, if any, of the aggregate Stated Principal
Balance
of the Mortgage Loans as of the last day of the related Due Period over
the
Overcollateralization Floor Amount.
“Class
M-10 Certificate”:
Any
one of the Class M-10 Certificates executed, authenticated and delivered
by the
Trustee, substantially in the form annexed hereto as Exhibit
A-14
and
evidencing (i) a Regular Interest in REMIC II for purposes of the REMIC
Provisions and (ii) the right to receive payments under the Mezzanine Cap
Contract to the extent described herein.
“Class
M-10 Principal Distribution Amount”:
With
respect to any Distribution Date, the excess of (x) the sum of (i) the aggregate
Certificate Principal Balance of the Class A Certificates (after taking into
account the distribution of the Class A Principal Distribution Amount on
such
Distribution Date), (ii) the Certificate Principal Balance of the Class M-1
Certificates (after taking into account the distribution of the Class M-1
Principal Distribution Amount on such Distribution Date), (iii) the Certificate
Principal Balance of the Class M-2 Certificates (after taking into account
the
distribution of the Class M-2 Principal Distribution Amount on such Distribution
Date), (iv) the Certificate Principal Balance of the Class M-3 Certificates
(after taking into account the distribution of the Class M-3 Principal
Distribution Amount on such Distribution Date), (v) the Certificate Principal
Balance of the Class M-4 Certificates (after taking into account the
distribution of the Class M-4 Principal Distribution Amount on such Distribution
Date), (vi) the Certificate Principal Balance of the Class M-5 Certificates
(after taking into account the distribution of the Class M-5 Principal
Distribution Amount on such Distribution Date), (vii) the Certificate Principal
Balance of the Class M-6 Certificates (after taking into account the
distribution of the Class M-6 Principal Distribution Amount on such Distribution
Date), (viii) the Certificate Principal Balance of the Class M-7 Certificates
(after taking into account the distribution of the Class M-7 Principal
Distribution Amount on such Distribution Date), (ix) the Certificate Principal
Balance of the Class M-8 Certificates (after taking into account the
distribution of the Class M-8 Principal Distribution Amount on such Distribution
Date), (x) the Certificate Principal Balance of the Class M-9 Certificates
(after taking into account the distribution of the Class M-9 Principal
Distribution Amount on such Distribution Date) and (xi) the Certificate
Principal Balance of the Class M-10 Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i) the applicable
Subordination Percentage and (ii) the aggregate Stated Principal Balance
of the
Mortgage Loans as of the last day of the related Due Period and (B) the excess,
if any, of the aggregate Stated Principal Balance of the Mortgage Loans as
of
the last day of the related Due Period over
the
Overcollateralization Floor Amount.
“Class
P Certificate”:
Any
one of the Class P Certificates executed, authenticated and delivered by
the
Trustee, substantially in the form annexed hereto as Exhibit
A-16
and
evidencing a Regular Interest in REMIC II for purposes of the REMIC
Provisions.
“Class
R Certificate”:
Any
one of the Class R Certificates executed, authenticated and delivered by
the
Trustee, substantially in the form annexed hereto as Exhibit
A-17
and
evidencing the ownership of the Class R-I Interest and the Class R-II
Interest.
“Class
R-I Interest”:
The
uncertificated Residual Interest in REMIC I.
“Class
R-II Interest”:
The
uncertificated Residual Interest in REMIC II.
“Closing
Date”:
May
24, 2006.
“Code”:
The
Internal Revenue Code of 1986, as amended.
“Commission”:
The
Securities and Exchange Commission.
“Compensating
Interest”:
As
defined in Section 3.24 of the Pooling and Servicing Agreement.
“Controlling
Person”
means,
with respect to any Person, any other Person who “controls” such Person within
the meaning of the Securities Act.
“Corporate
Trust Office”:
The
principal corporate trust office of the Trustee at which at any particular
time
its corporate trust business in connection with the Pooling and Servicing
Agreement shall be administered, which office at the date of the execution
of
the Pooling and Servicing Agreement is located at (i) for purposes of the
transfer and exchange of the certificates, Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000, Attention: Corporate Trust Services -
Xxxxxxxxxx 2006-RFC1, and (ii) for all other purposes, 0000 Xxx Xxxxxxxxx
Xxxx,
Xxxxxxxx, Xxxxxxxx 00000, Attention: Client Manager - Xxxxxxxxxx
2006-RFC1.
“Corresponding
Certificate”:
With
respect to each REMIC I Regular Interest set forth below, the Regular
Certificate set forth in the table below:
|
REMIC
I
Regular
Interest
|
Certificate
|
|
I-LTA1
|
Class
A-1
|
|
I-LTA2
|
Class
X-0
|
|
X-XXX0
|
Xxxxx
X-0
|
|
X-XXX0
|
Class
A-4
|
|
I-LTM1
|
Class
M-1
|
|
I-LTM2
|
Class
M-2
|
|
I-LTM3
|
Class
M-3
|
|
I-LTM4
|
Class
M-4
|
|
I-LTM5
|
Class
M-5
|
|
I-LTM6
|
Class
M-6
|
|
I-LTM7
|
Class
M-7
|
|
I-LTM8
|
Class
M-8
|
|
I-LTM9
|
Class
M-9
|
|
I-LTM10
|
Class
M-10
|
|
I-LTP
|
Class
P
|
“Credit
Enhancement Percentage”:
For
any Distribution Date, the percentage equivalent of a fraction, the numerator
of
which is the sum of the aggregate Certificate Principal Balance of the Mezzanine
Certificates and the Class CE Certificates, calculated after taking into
account
payments of principal on the Mortgage Loans and distribution of the Principal
Distribution Amount to the Holders of the Certificates then entitled to
distributions of principal on such Distribution Date, and the denominator
of
which is the aggregate Stated Principal Balance of the Mortgage Loans as
of the
last day of the related Due Period (after giving effect to scheduled payments
of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period).
“Credit
Support Depletion Date”:
The
first Distribution Date on which the Certificate Principal Balances of the
Mezzanine Certificates have been reduced to zero.
“Custodial
Account”:
The
account or accounts created and maintained, or caused to be created and
maintained, by the Servicer pursuant to Section
3.10(a)
of the
Pooling and Servicing Agreement, which shall be entitled “Homecomings Financial
Network, Inc., as Servicer for Xxxxx Fargo Bank, N.A., as Trustee, in trust
for
the registered holders of Xxxxxxxxxx Mortgage Loan Trust, Series 2006-RFC1,
Asset-Backed Pass-Through Certificates.” The Custodial Account must be an
Eligible Account.
“Cut-off
Date”:
With
respect to each Original Mortgage Loan, May 1, 2006. With respect to all
Qualified Substitute Mortgage Loans, their respective dates of substitution.
References herein to the “Cut-off Date,” when used with respect to more than one
Mortgage Loan, shall be to the respective Cut-off Dates for each such Mortgage
Loan.
“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
Stated Principal Balance of the Mortgage Loan, which valuation results from
a
proceeding initiated under the Bankruptcy Code.
“Definitive
Certificates”:
As
defined in Section
5.01(b)
of the
Pooling and Servicing Agreement.
“Deleted
Mortgage Loan”:
A
Mortgage Loan replaced or to be replaced by a Qualified Substitute Mortgage
Loan.
“Delinquency
Percentage”:
As
of the
last day of the related Due Period, the percentage equivalent of a fraction,
the
numerator
of
which is the aggregate unpaid principal balance of the
Rolling
Three-Month Delinquency Average of the Mortgage Loans plus the aggregate
unpaid
principal balance of the Mortgage Loans that, as of the last day of the previous
calendar month, 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 unpaid principal balance of the Mortgage Loans and REO Properties
as of the last day of the previous calendar month; provided,
however,
that
any Mortgage Loan purchased by the Servicer pursuant to Section 3.16(c)
of the
Pooling and Servicing Agreement shall not be included in either the numerator
or
the denominator for purposes of calculating the Delinquency
Percentage.
“Depositor”:
Stanwich Asset Acceptance Company, L.L.C., a Delaware limited liability company,
or its successor in interest.
“Depository”:
The
Depository Trust Company, or any successor Depository hereafter named. The
nominee of the initial Depository, for purposes of registering those
Certificates that are to be Book-Entry Certificates, is Cede & Co. The
Depository shall at all times be a “clearing corporation” as defined in Section
8-102(a)(5) 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 P-1 by Xxxxx’x, F-1 by Fitch (if rated by
Fitch) and A-1+ by S&P.
“Depository
Participant”:
A
broker, dealer, bank or other financial institution or other Person for whom
from time to time a Depository effects book-entry transfers and pledges of
securities deposited with the Depository.
“Determination
Date”:
With
respect to each Distribution Date, the 15th
day of
the calendar month in which such Distribution Date occurs or, if such
15th
day is
not a Business Day, the Business Day immediately preceding such 15th
day.
“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 Trustee (or the Servicer on behalf of the Trustee) shall not be considered
to Directly Operate an REO Property solely because the Trustee (or the Servicer
on behalf of the Trustee) establishes rental terms, chooses tenants, enters
into
or renews leases, makes payment on or otherwise discharges tax or insurance
obligations, or makes decisions as to repairs or capital expenditures with
respect to such REO Property.
“Disqualified
Organization”:
Any
organization defined as a “disqualified organization” under Section 860E(e)(5)
of the Code, including, if not otherwise included, any of the following:
(i) the
United States, any State or political subdivision thereof, any possession
of the
United States, or any agency or instrumentality of any of the foregoing (other
than an instrumentality which is a corporation if all of its activities are
subject to tax and, except for Xxxxxxx Mac, a majority of its board of directors
is not selected by such governmental unit), (ii) any foreign government,
any
international organization, or any agency or instrumentality of any of the
foregoing, (iii) any organization (other than certain farmers’ cooperatives
described in Section 521 of the Code) which is exempt from the tax imposed
by
Chapter 1 of the Code (including the tax imposed by Section 511 of the Code
on
unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381(a)(2)(C) of the Code, (v) an “electing
large partnership” and (vi) any other Person as set forth in an Opinion of
Counsel delivered to the Trustee and the Depositor to the effect 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
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 June 2006.
“Due
Date”:
With
respect to each Mortgage Loan and any Distribution Date, the first day of
the
calendar month in which such Distribution Date occurs on which the Monthly
Payment for such Mortgage Loan was due (or, in the case of any Mortgage Loan
under terms of which the Monthly Payment for such Mortgage Loan was due on
a day
other than the first day of the calendar month in which such Distribution
Date
occurs, the day during the related Due Period on which such Monthly Payment
was
due), in each case exclusive of any days of grace.
“Due
Period”:
With
respect to any Distribution Date, the period commencing on the second day
of the
month immediately preceding the month in which such Distribution Date occurs
and
ending on the first day of the month of such Distribution Date.
“XXXXX”:
As
defined in Section
4.06
of the
Pooling and 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 segregated non-interest bearing trust account or accounts
maintained with the corporate trust department of a federal depository
institution or state-chartered depository institution subject to regulations
regarding fiduciary funds on deposit similar to Title 12 of the Code of Federal
Regulation Section 9.10(b), which, in either case, has corporate trust powers,
acting in its fiduciary capacity.
“ERISA”:
The
Employee Retirement Income Security Act of 1974, as amended.
“Escrow
Payments”:
As
defined in Section
3.09
of the
Pooling and Servicing Agreement.
“Excess
Overcollateralized Amount”:
With
respect to the Class A Certificates and the Mezzanine Certificates and any
Distribution Date, the excess, if any, of (i) the Overcollateralization Amount
for such Distribution Date (calculated for this purpose only after assuming
that
100% of the Principal Remittance Amount on such Distribution Date has been
distributed) over (ii) the Overcollateralization Target Amount for such
Distribution Date.
“Exchange
Act”:
As
defined in Section
4.06
of the
Pooling and Servicing Agreement.
“Expense
Adjusted 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 applicable Mortgage
Rate thereon as of the first day of the related Due Period minus the sum
of (i)
the Trustee Fee Rate and (ii) the Servicing Fee Rate.
“Extraordinary
Trust Fund Expense”:
Any
amounts reimbursable to the Trustee or any director, officer, employee or
agent
of the Trustee from the Trust Fund pursuant to Section
8.05
or
Section
10.01(c)
of the
Pooling and Servicing Agreement and any amounts payable from the Certificate
Account in respect of taxes pursuant to Section
10.01(g)(iii)
of the
Pooling and Servicing Agreement and any costs of the Trustee for the recording
of the Assignments pursuant to Section
2.01
of the
Pooling and Servicing Agreement (to the extent the Seller is unable to pay
such
costs).
“Xxxxxx
Xxx”:
Xxxxxx
Xxx, a federally chartered and privately owned corporation organized and
existing under the Federal National Mortgage Association Charter Act, or
any
successor thereto.
“FDIC”:
Federal Deposit Insurance Corporation or any successor thereto.
“ FHLMC”:
The
Federal Home Loan Mortgage Corporation or any successor thereto.
“Final
Recovery Determination”:
With
respect to any defaulted Mortgage Loan or any REO Property (other than a
Mortgage Loan or REO Property purchased by RFC, the Depositor or the Servicer
pursuant to or as contemplated by Section
2.03,
Section 3.16(c)
or
Section
9.01
of the
Pooling and Servicing Agreement), a determination made by the Servicer that
all
Insurance Proceeds, Liquidation Proceeds and other payments or recoveries
which
the Servicer, in its reasonable good faith judgment, expects to be finally
recoverable in respect thereof have been so recovered. The Servicer shall
maintain records, prepared by a Servicing Officer, of each Final Recovery
Determination made thereby.
“Fitch”:
Fitch
Ratings, or its successor in interest.
“Fixed-Rate
Mortgage Loan”:
Each
of the Mortgage Loans identified on the Mortgage Loan Schedule as having
a fixed
Mortgage Rate.
“Formula
Rate”:
For
any Distribution Date and the Class A Certificates and the Mezzanine
Certificates, One-Month LIBOR plus
the
related Margin.
“Xxxxxxx
Mac”:
Xxxxxxx Mac, a corporate instrumentality of the United States created and
existing under Title III of the Emergency Home Finance Act of 1970, as amended,
or any successor thereto.
“Gross
Margin”:
With
respect to each Adjustable-Rate Mortgage Loan, the fixed percentage set forth
in
the related Mortgage Note that is added to the Index on each Adjustment Date
in
accordance with the terms of the related Mortgage Note used to determine
the
Mortgage Rate for such Adjustable-Rate Mortgage Loan.
“Highest
Priority”:
As of
any date of determination, the Class of Mezzanine Certificates then outstanding
with a Certificate Principal Balance greater than zero, with the highest
priority for payments pursuant to Section
4.01
of the
Pooling and Servicing Agreement, in the following order: Class X-0, Xxxxx
X-0,
Class M-3, Class M-4, Class M-5, Class M-6, Class M-7, Class M-8, Class M-9
and
Class M-10 Certificates.
“Indenture”:
An
indenture relating to the issuance of notes secured by the Class CE
Certificates, the Class P Certificates and/or the Class R Certificates (or
any
portion thereof).
“Independent”:
When
used with respect to any specified Person, any such Person who (i) is in
fact independent of the Depositor, the Servicer, the Seller and their respective
Affiliates, (ii) does not have any direct financial interest in or any
material indirect financial interest in the Depositor, the Servicer, the
Seller
or any Affiliate thereof, and (iii) is not connected with the Depositor,
the Servicer, the Seller 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 Servicer, the
Seller 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
Servicer, the Seller or any Affiliate thereof, as the case may be.
“Independent
Contractor”:
Either
(i) any Person (other than the Servicer) that would be an “independent
contractor” with respect to REMIC I within the meaning of Section 856(d)(3) of
the Code if REMIC I were a real estate investment trust (except that the
ownership tests set forth in that section shall be considered to be met by
any
Person that owns, directly or indirectly, 35% or more of any Class of
Certificates), so long as REMIC I does not receive or derive any income from
such Person and provided that the relationship between such Person and REMIC
I
is at arm’s length, all within the meaning of Treasury Regulation Section
1.856-4(b)(5), or (ii) any other Person (including the Servicer) if the Trustee
has received an Opinion of Counsel to the effect that the taking of any action
in respect of any REO Property by such Person, subject to any conditions
therein
specified, that is otherwise herein contemplated to be taken by an Independent
Contractor will not cause such REO Property to cease to qualify as “foreclosure
property” within the meaning of Section 860G(a)(8) of the Code (determined
without regard to the exception applicable for purposes of Section 860D(a)
of
the Code), or cause any income realized in respect of such REO Property to
fail
to qualify as Rents from Real Property.
“Index”:
With
respect to each Adjustable-Rate Mortgage Loan and each related Adjustment
Date,
the index specified in the related Mortgage Note.
“Insurance
Proceeds”:
Proceeds of any title policy, hazard policy or other insurance policy covering
a
Mortgage Loan, to the extent such proceeds are not to be applied to the
restoration of the related Mortgaged Property or released to the Mortgagor
in
accordance with the procedures that the Servicer would follow in servicing
mortgage loans held for its own account, subject to the terms and conditions
of
the related Mortgage Note and Mortgage.
“Interest
Accrual Period”:
With
respect to any Distribution Date and the Class A Certificates and the Mezzanine
Certificates, the period commencing on the Distribution Date of the month
immediately preceding the month in which such Distribution Date occurs (or,
in
the case of the first Distribution Date, commencing on the Closing Date)
and
ending on the day preceding such Distribution Date. With respect to any
Distribution Date and the Class CE Certificates and the REMIC I Regular
Interests, the one-month period ending on the last day of the calendar month
preceding the month in which such Distribution Date occurs.
“Interest
Carry Forward Amount”:
With
respect to any Distribution Date and the Class A Certificates or the Mezzanine
Certificates, the sum of (i) the amount, if any, by which (a) the Interest
Distribution Amount for such Class of Certificates as of the immediately
preceding Distribution Date exceeded (b) the actual amount distributed on
such
Class of Certificates in respect of interest on such immediately preceding
Distribution Date, (ii) the amount of any Interest Carry Forward Amount for
such
Class of Certificates remaining unpaid from the previous Distribution Date
and
(iii) accrued interest on the sum of (i) and (ii) above calculated at the
related Pass-Through Rate for the most recently ended Interest Accrual
Period.
“Interest
Determination Date”:
With
respect to the Class A Certificates, the Mezzanine Certificates, REMIC I
Regular
Interest I-LTA1, REMIC I Regular Interest I-LTA2, REMIC I Regular Interest
I-LTA3, REMIC I Regular Interest I-LTA4, REMIC I Regular Interest I-LTM1,
REMIC
I Regular Interest I-LTM2, REMIC I Regular Interest I-LTM3, REMIC I Regular
Interest I-LTM4, REMIC I Regular Interest I-LTM5, REMIC I Regular Interest
I-LTM6, REMIC I Regular Interest I-LTM7, REMIC I Regular Interest I-LTM8,
REMIC
I Regular Interest I-LTM9, REMIC I Regular Interest I-LTM10 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 the Class A Certificates, the Mezzanine
Certificates and the Class CE Certificates, the aggregate Accrued Certificate
Interest on the Certificates of such Class for such Distribution
Date.
“Interest
Remittance Amount”:
For
any Distribution Date, that portion of the Available Distribution Amount
for the
related Distribution Date that represents interest received or advanced on
the
Mortgage Loans.
“Investment
Account”:
As
defined in Section
3.12
of the
Pooling and Servicing Agreement.
“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, 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
3.16(c)
or
Section
9.01
of the
Pooling and Servicing 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
9.01
of the
Pooling and Servicing Agreement.
“Liquidation
Proceeds”:
The
amount (other than Insurance Proceeds or amounts received in respect of the
rental of any REO Property prior to REO Disposition) received by the Servicer
in
connection with (i) the taking of all or a part of a Mortgaged Property by
exercise of the power of eminent domain or condemnation, (ii) the liquidation
of
a defaulted Mortgage Loan through a trustee’s sale, foreclosure sale or
otherwise, or (iii) the repurchase, substitution or sale of a Mortgage Loan
or
an REO Property pursuant to or as contemplated by Section
2.03,
Section 3.16(c),
Section
3.23
or
Section
9.01
of the
Pooling and Servicing Agreement.
“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 City of London and New York are open and conducting
transactions in United States dollars.
“Margin”:
With
respect to each class of the Class A Certificates and Mezzanine Certificates
and, for purposes of the Marker Rate and the Maximum I-LTZZ Uncertificated
Interest Deferral Amount, the specified REMIC I Regular Interest, as
follows:
|
Class
|
REMIC
I Regular Interest
|
Margin
|
|
|
(1)
(%)
|
(2)
(%)
|
||
|
X-0
|
X-XXX0
|
0.040
|
0.080
|
|
X-0
|
X-XXX0
|
0.000
|
0.000
|
|
X-0
|
X-XXX0
|
0.150
|
0.300
|
|
X-0
|
X-XXX0
|
0.240
|
0.480
|
|
M-1
|
I-LTM1
|
0.270
|
0.405
|
|
M-2
|
I-LTM2
|
0.290
|
0.435
|
|
M-3
|
I-LTM3
|
0.310
|
0.465
|
|
M-4
|
I-LTM4
|
0.350
|
0.525
|
|
M-5
|
I-LTM5
|
0.380
|
0.570
|
|
M-6
|
I-LTM6
|
0.460
|
0.690
|
|
M-7
|
I-LTM7
|
0.860
|
1.290
|
|
M-8
|
I-LTM8
|
1.050
|
1.575
|
|
M-9
|
I-LTM9
|
1.870
|
2.805
|
|
M-10
|
I-LTM10
|
2.500
|
3.750
|
__________
(1) For
each
Interest Accrual Period for each Distribution Date on or prior to the Optional
Termination Date.
(2) For
each
Interest Accrual Period thereafter.
“Marker
Rate”:
With
respect to the Class CE Certificates or the REMIC II Regular Interest CE-IO
and
any Distribution Date, a per annum rate equal to two (2) multiplied by the
weighted average of the REMIC I Remittance Rates for the REMIC I Regular
Interests (other than REMIC I Regular Interest I-LTP and REMIC I Regular
Interest I-LTAA), with the rate on each such REMIC I Regular Interest (other
than REMIC I Regular Interest I-LTZZ) subject to a cap equal to the Pass-Through
Rate for the related Corresponding Certificate and with the rate on REMIC
I
Regular Interest I-LTZZ subject to a cap of zero, in each case for purposes
of
this calculation; provided,
however,
each
cap shall be multiplied by a fraction, the numerator of which is the actual
number of days elapsed in the related Interest Accrual Period and the
denominator of which is 30.
“Maximum
I-LTZZ Uncertificated Interest Deferral Amount”:
With
respect to any Distribution Date, the excess of (i) accrued interest at the
REMIC I Remittance Rate applicable to REMIC I Regular Interest I-LTZZ for
such
Distribution Date on a balance equal to the Uncertificated Balance of REMIC
I
Regular Interest I-LTZZ minus
the
REMIC I Overcollateralized Amount, in each case for such Distribution Date,
over
(ii) Uncertificated Interest on REMIC I Regular Interest I-LTA1, REMIC I
Regular Interest I-LTA2, REMIC I Regular Interest I-LTA3, REMIC I Regular
Interest I-LTA4, REMIC I Regular Interest I-LTM1, REMIC I Regular Interest
I-LTM2, REMIC I Regular Interest I-LTM3, REMIC I Regular Interest I-LTM4,
REMIC
I Regular Interest I-LTM5, REMIC I Regular Interest I-LTM6, REMIC I Regular
Interest I-LTM7, REMIC I Regular Interest I-LTM8, REMIC I Regular Interest
I-LTM9 and REMIC I Regular Interest I-LTM10 for such Distribution Date, with
the
rate on each such REMIC I Regular Interest subject to a cap equal to the
lesser
of (i) One-Month LIBOR plus
the
related Margin for the related Corresponding Certificate and (ii) the Net
WAC Pass-Through Rate for the related Corresponding Certificate; provided,
however,
each
cap shall be multiplied by a fraction, the numerator of which is the actual
number of days elapsed in the related Interest Accrual Period and the
denominator of which is 30.
“Maximum
Mortgage Rate”:
With
respect to each Adjustable-Rate Mortgage Loan, the percentage set forth in
the
related Mortgage Note as the maximum Mortgage Rate thereunder.
“MERS”:
Mortgage Electronic Registration Systems, Inc., a corporation organized and
existing under the laws of the State of Delaware, or any successor
thereto.
“MERS®
System”:
The
system of recording transfers of Mortgages electronically maintained by
MERS.
“Mezzanine
Cap Contract”:
The
cap contract between the Trustee on behalf of the Trust and the counterparty
thereunder for the benefit of the Holders of the Mezzanine Certificates in
the
form attached to the Pooling and Servicing Agreement as Exhibit
K.
“Mezzanine
Certificates”:
Collectively, the Class M-1 Certificates, the Class M-2 Certificates, the
Class
M-3 Certificates, the Class M-4 Certificates, the Class M-5 Certificates,
the
Class M-6 Certificates, the Class M-7 Certificates, the Class M-8 Certificates,
the Class M-9 Certificates and the Class M-10 Certificates.
“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 applicable 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; (b) without
giving effect to any extension granted or agreed to by the Servicer pursuant
to
Section
3.07
of the
Pooling and Servicing Agreement and (c) on the assumption that all other
amounts, if any, due under such Mortgage Loan are paid when due.
“Moody’s”:
Xxxxx’x Investors Service, Inc., or its successor in interest.
“Mortgage”:
With
respect to each Mortgage Note, the mortgage, deed of trust or other instrument
creating a first lien or second lien on, or first or second priority security
interest in, a Mortgaged Property securing a Mortgage Note.
“Mortgage
File”:
The
mortgage documents listed in Section
2.01
of the
Pooling and Servicing Agreement pertaining to a particular Mortgage Loan
and any
additional documents required to be added to the Mortgage File pursuant to
the
Pooling and Servicing Agreement.
“Mortgage
Loan”:
Each
mortgage loan transferred and assigned to the Trustee and delivered to the
Trustee pursuant to Section
2.01
or
Section
2.03(b)
of the
Pooling and Servicing 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 Purchase Agreement”:
The
agreement among the Seller, RFC and the Depositor, regarding the sale of
the
Mortgage Loans by the Seller to the Depositor, substantially in the form
of
Exhibit
D
annexed
hereto.
“Mortgage
Loan Schedule”:
As of
any date, the list of Mortgage Loans included in REMIC I on such date, attached
to the Pooling and Servicing Agreement as Schedule
1.
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 city, state
and
zip code of the Mortgaged Property;
|
| (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) |
[reserved];
|
| (x) |
the
Mortgage Rate in effect immediately following the Cut-off
Date;
|
| (xi) |
(A)
the date on which the first Monthly Payment was due on the Mortgage
Loan
and (B) if such date is not consistent with the Due Date currently
in
effect, such Due Date;
|
| (xii) |
[reserved];
|
| (xiii) |
[reserved];
|
| (xiv) |
the
amount of the Monthly Payment as of the Cut-off
Date;
|
| (xv) |
the
last Due Date on which a Monthly Payment was actually applied to
the
unpaid Stated Principal Balance;
|
| (xvi) |
the
original principal amount of the Mortgage
Loan;
|
| (xvii) |
the
Stated Principal Balance of the Mortgage Loan as of the close of
business
on the Cut-off
Date;
|
| (xviii) |
with
respect to each Adjustable-Rate Mortgage Loan, the Adjustment
Dates;
|
| (xix) |
with
respect to each Adjustable-Rate Mortgage Loan, the Gross
Margin;
|
| (xx) |
a
code indicating the purpose of the Mortgage Loan (i.e., purchase
financing, Rate/Term Refinancing, Cash-Out
Refinancing);
|
| (xxi) |
with
respect to each Adjustable-Rate Mortgage Loan, the Maximum Mortgage
Rate
under the terms of the Mortgage Note;
|
| (xxii) |
with
respect to each Adjustable-Rate Mortgage Loan, the Minimum Mortgage
Rate;
|
| (xxiii) |
the
Mortgage Rate at origination;
|
| (xxiv) |
with
respect to each Adjustable-Rate Mortgage Loan, the Periodic Rate
Cap;
|
| (xxv) |
with
respect to each Adjustable-Rate Mortgage Loan, the first Adjustment
Date
immediately following the Cut-off Date;
|
| (xxvi) |
with
respect to each Adjustable-Rate Mortgage Loan, the
Index;
|
| (xxvii) |
[reserved]
|
| (xxviii) |
a
code indicating whether the Mortgage Loan is an Adjustable Rate
Mortgage
Loan or a Fixed Rate Mortgage Loan;
|
| (xxix) |
a
code indicating the documentation program (i.e., Full Documentation,
Limited Documentation, Stated Income
Documentation);
|
| (xxx) |
the
Value of the Mortgaged Property;
|
| (xxxi) |
the
sale price of the Mortgaged Property, if
applicable;
|
| (xxxii) |
a
code indicating if the Mortgaged Property is subject to a primary
insurance policy or lender paid mortgage insurance
policy;
|
| (xxxiii) |
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;
|
| (xxxiv) |
the
product type (e.g., 2/28, 15 year fixed, 30 year fixed, 15/30 balloon,
etc.);
|
| (xxxv) |
the
Mortgagor’s debt to income ratio;
|
| (xxxvi) |
a
code indicating whether the Mortgaged Property is subject to a
first lien
or a subordinate lien;
|
| (xxxvii) |
the
number of months since the Mortgagor’s bankruptcy disposition, if
applicable;
|
| (xxxviii) |
the
number of months since foreclosure disposition for the Mortgagor’s
previous mortgage loan, if applicable;
|
| (xxxix) |
the
Mortgage Loan payment history in a ticker
format;
|
| (xl) |
the
total amount of points and fees charged such Mortgage
Loan;
|
| (xli) |
the
maximum first Adjustment Date Mortgage Rate
adjustment;
|
| (xlii) |
RFC’s
risk grade;
|
| (xliii) |
the
Servicing Fee Rate for such Mortgage Loan;
and
|
| (xliv) |
the
MIN, if applicable.
|
The
Mortgage Loan Schedule shall set forth the following information with respect
to
the Mortgage Loans in the aggregate as of the Cut-off Date:
| (1) |
the
number of Mortgage Loans;
|
| (2) |
the
current Stated Principal Balance of the Mortgage
Loans;
|
| (3) |
the
weighted average Mortgage Rate of the Mortgage
Loans;
|
| (4) |
weighted
average maturity of the Mortgage Loans;
and
|
| (5) |
the
delinquency status.
|
The
Mortgage Loan Schedule shall be amended from time to time by the Depositor
in
accordance with the provisions of the Pooling and Servicing 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
Pool”:
The
pool of Mortgage Loans, identified on Schedule 1 and existing from time to
time
thereafter, and any REO Properties acquired in respect thereof.
“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 (i) with respect to each Fixed-Rate Mortgage Loan
shall remain constant at the rate set forth in the Mortgage Loan Schedule
as the
Mortgage Rate in effect immediately following the Cut-off Date and (ii) with
respect to the Adjustable-Rate Mortgage Loans, (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 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 a fee simple estate in a parcel of land 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 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 Senior Interest Distribution Amount distributable to the holders of
the Class A Certificates, (B) the Interest Distribution Amount distributable
to
the holders of the Mezzanine 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 Servicing Fee Rate.
“Net
WAC Pass-Through Rate”:
With
respect to the Class A Certificates and the Mezzanine Certificates and any
Distribution Date, a rate per annum (adjusted for the actual number of days
in
the related Interest Accrual Period) equal to the weighted average of the
Expense Adjusted Mortgage Rates of the Mortgage Loans, weighted on the basis
of
the respective Stated Principal Balances of the Mortgage Loans as of the
first
day of the related Due Period. For federal income tax purposes, the Net WAC
Pass-Through Rate calculated pursuant to the immediately preceding sentence
shall be the equivalent of that which is provided in such immediately preceding
sentence expressed as a per annum rate equal to the weighted average of the
aggregate REMIC I Remittance Rates on the REMIC I Regular Interests, weighted
on
the basis of the Uncertificated Balance of such REMIC I Regular
Interests.
“Net
WAC Rate Carryover Amount”:
With
respect to any Class of the Class A Certificates and the Mezzanine Certificates
and any Distribution Date, the sum of (A) the positive excess of (i) the
amount
of interest that would have accrued on such Class of Certificates for such
Distribution Date had the Pass-Through Rate been calculated at the related
Formula Rate over (ii) the amount of interest accrued on such Class of
Certificates at the Net WAC Pass-Through Rate for such Distribution Date
and (B)
the related Net WAC Rate Carryover Amount for the previous Distribution Date
not
previously distributed, together with interest thereon at a rate equal to
the
related Formula Rate for such Class of Certificates for such Distribution
Date.
“Net
WAC Rate Carryover Reserve Account”:
As
defined in Section
3.27
of the
Pooling and Servicing Agreement.
“New
Lease”:
Any
lease of REO Property entered into on behalf of REMIC I, including any lease
renewed or extended on behalf of REMIC I, if REMIC I has the right to
renegotiate the terms of such lease.
“Nonrecoverable
Advance”:
Any
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, will
not
or, in the case of a proposed 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, will not or, in the case of a proposed Servicing Advance, would
not be
ultimately recoverable from related Late Collections, Insurance Proceeds
or
Liquidation Proceeds on such Mortgage Loan or REO Property as provided
herein.
“Non-United
States Person”:
Any
Person other than a United States Person.
“Notional
Amount”:
With
respect to the Class CE Certificates and any Distribution Date, the aggregate
Uncertificated Balance of the REMIC I Regular Interests for such Distribution
Date.
“Officers’
Certificate”:
A
certificate signed by the Chairman of the Board, the Vice Chairman of the
Board,
the President or a vice president (however denominated), and by the Treasurer,
the Secretary, or one of the assistant treasurers or assistant secretaries
of
the Servicer, the Seller or the Depositor, as applicable.
“One-Month
LIBOR”:
With
respect to the Class A Certificates, the Mezzanine Certificates and for purposes
of the Marker Rate and Maximum I-LTZZ Uncertificated Interest Deferral Amount,
REMIC I Regular Interest I-LTA1, REMIC I Regular Interest I-LTA2, REMIC I
Regular Interest I-LTA3, REMIC I Regular Interest I-LTA4, REMIC I Regular
Interest I-LTM1, REMIC I Regular Interest I-LTM2, REMIC I Regular Interest
I-LTM3, REMIC I Regular Interest I-LTM4, REMIC I Regular Interest I-LTM5,
REMIC
I Regular Interest I-LTM6, REMIC I Regular Interest I-LTM7, REMIC I Regular
Interest I-LTM8, REMIC I Regular Interest I-LTM9 and REMIC I Regular Interest
I-LTM10 and any Interest Accrual Period therefor, the rate determined by
the
Trustee 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 Trustee 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 Trustee, after consultation
with the Depositor, shall select an alternative comparable index (over which
the
Trustee 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 Trustee and the Trustee’s
subsequent calculation of the interest rates applicable to the Certificates
for
the relevant Interest Accrual Period, in the absence of manifest error, shall
be
final and binding.
“Opinion
of Counsel”:
A
written opinion of counsel, who may, without limitation, be salaried counsel
for
the Depositor or the Servicer, acceptable to the Trustee, if such opinion
is
delivered to the Trustee, except that any opinion of counsel relating to
(a) the
qualification of any Trust REMIC as a REMIC or (b) compliance with the REMIC
Provisions must be an opinion of Independent counsel.
“Original
Mortgage Loan”:
Any of
the Mortgage Loans included in REMIC I as of the Closing Date.
“Overcollateralization
Amount”:
With
respect to any Distribution Date, the excess, if any, of (a) the aggregate
Stated Principal Balances of the Mortgage Loans and REO Properties as of
the
last day of the related Due Period over (b) the sum of the aggregate Certificate
Principal Balance of the Class A Certificates, the Mezzanine Certificates
and
the Class P Certificates.
“Overcollateralization
Deficiency Amount”:
With
respect to any Distribution Date, the excess, if any, of (a) the
Overcollateralization Target Amount applicable to such Distribution Date
over
(b) the Overcollateralization Amount applicable to such Distribution Date
(calculated for this purpose only after assuming that 100% of the Principal
Remittance Amount on such Distribution Date has been distributed).
“Overcollateralization
Floor Amount”:
With
respect to any Distribution Date, the amount equal to 0.50% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date.
“Overcollateralization
Increase Amount”:
With
respect to any Distribution Date, the lesser of (a) the Overcollateralization
Deficiency Amount as of such Distribution Date (calculated for this purpose
only
after assuming that 100% of the Principal Remittance Amount on such Distribution
Date has been distributed) and (b) the amount of Accrued Certificate Interest
payable on the Class CE Certificates on such Distribution Date as reduced
by
Realized Losses allocated thereto with respect to such Distribution Date
pursuant to Section
4.04
of the
Pooling and Servicing Agreement.
“Overcollateralization
Reduction Amount”:
With
respect to any Distribution Date, an amount equal to the lesser of (a) the
Principal Remittance Amount on such Distribution Date and (b) the Excess
Overcollateralized Amount.
“Overcollateralization
Target Amount”:
With
respect to any Distribution Date, (i) prior to the Stepdown Date, an amount
equal to 3.80% of the aggregate outstanding Stated 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) 7.60% of the
then
current aggregate outstanding Stated Principal Balance of the Mortgage Loans
as
of the last day of the related Due Period and (y) the Overcollateralization
Floor Amount, or (iii) on or after the Stepdown Date and if a Trigger Event
is
in effect, the Overcollateralization Target Amount for the immediately preceding
Distribution Date. Notwithstanding the foregoing, on and after any Distribution
Date following the reduction of the aggregate Certificate Principal Balance
of
the Class A Certificates, Mezzanine Certificates and Class P Certificates
to
zero, the Overcollateralization Target Amount shall be zero.
“Ownership
Interest”:
As to
any Certificate, any ownership or security interest in such Certificate,
including any interest in such Certificate as the Holder thereof and any
other
interest therein, whether direct or indirect, legal or beneficial, as owner
or
as pledgee.
“Pass-Through
Rate”:
With
respect to the Class A Certificates and the Mezzanine Certificates and any
Distribution Date, the lesser of (x) the related Formula Rate for such
Distribution Date and (y) the Net WAC Pass-Through Rate for such Distribution
Date. With respect to the Class CE Certificates and any Distribution Date,
(i) a
per annum rate equal to the percentage equivalent of a fraction, the numerator
of which is (x) the interest on the Uncertificated Balance of each REMIC
I
Regular Interest described in clause
(y)
below
computed at a rate equal to the related REMIC I Remittance Rate minus
the
Marker Rate and the denominator of which is (y) the aggregate Uncertificated
Balance of REMIC I Regular Interest X-XXXX, X-XXX0, X-XXX0, X-XXX0, X-XXX0,
I-LTM1, I-LTM2, I-LTM3, I-LTM4, I-LTM5, I-LTM6, I-LTM7, I-LTM8, I-LTM9, I-LTM10
and I-LTZZ and (ii) 100% of the interest on REMIC I Regular Interest I-LTP,
expressed as a per annum rate.
“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 or Notional Amount represented by such Certificate and
the
denominator of which is the aggregate initial Certificate Principal Balance
or
initial Notional Amount of all of the Certificates of such Class. The Class
A
Certificates and the Class M-1 Certificates are issuable only in minimum
Percentage Interests corresponding to minimum initial Certificate Principal
Balances of $100,000 and integral multiples of $1.00 in excess thereof. The
Mezzanine Certificates (other than the Class M-1 Certificates) are issuable
only
in minimum Percentage Interests corresponding to minimum initial Certificate
Principal Balances of $250,000 and integral multiples of $1 in excess thereof.
The Class P Certificates are issuable only in Percentage Interests corresponding
to initial Certificate Principal Balances of $20 and integral multiples thereof.
The Class CE Certificates are issuable only in minimum Percentage Interests
corresponding to minimum initial Certificate Principal Balances of $100,000
and
integral multiples of $1.00 in excess thereof; provided,
however,
that a
single Certificate of each such Class of Certificates may be issued having
a
Percentage Interest corresponding to the remainder of the aggregate initial
Certificate Principal Balance or Notional Amount of such Class or to an
otherwise authorized denomination for such Class plus
such
remainder. With respect to any Residual Certificate, the undivided percentage
ownership in such Class evidenced by such Certificate, as set forth on the
face
of such Certificate. The Residual Certificates are issuable in Percentage
Interests of 20% and multiples thereof.
“Perfection
Representations”:
The
representations, warranties and covenants set forth in Schedule 3 attached
to
the Pooling and Servicing Agreement.
“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 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 or managed by
the
Depositor, the 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) |
demand
and time deposits in, certificates of deposit of, or bankers’ acceptances
issued by, any Depository
Institution;
|
| (iii) |
repurchase
obligations with respect to any security described in clause
(i)
above entered into with a Depository Institution (acting as
principal);
|
| (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, which securities mature in 365 days or
less;
|
| (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, including those managed or advised by the
Trustee
or its Affiliates, that have been rated “AAA” by Fitch (if rated by Fitch)
and “AAAm” or “AAAm-G” by S&P and “Aaa” by Moody’s;
and
|
| (vii) |
if
previously confirmed in writing to the Trustee, any other demand,
money
market or time deposit, or any other obligation, security or investment,
as may be acceptable to the Rating Agencies as a permitted investment
of
funds backing securities having ratings equivalent to its highest
initial
rating of the Class A Certificates;
|
provided,
however,
that no
instrument described hereunder shall evidence either the right to receive
(a)
only interest with respect to the obligations underlying such instrument
or (b)
both principal and interest payments derived from obligations underlying
such
instrument and the interest and principal payments with respect to such
instrument provide a yield to maturity at par greater than 120% of the yield
to
maturity at par of the underlying obligations.
“Permitted
Transferee”:
Any
Transferee of a Residual Certificate other than a Disqualified Organization
or
Non-United States Person.
“Person”:
Any
individual, corporation, partnership, limited liability company, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
“Plan”:
Any
“employee benefit plan” as defined in Section 3(3) of ERISA that is subject to
Title I of ERISA, any “plan” as defined in Section 4975(e)(1) of the Code that
is subject to Section 4975 of the Code or any entity deemed to hold plan
assets
of any of the foregoing.
“Pooling
and Servicing Agreement”:
The
Pooling and Servicing Agreement dated and effective as of May 1, 2006, among
Stanwich Asset Acceptance Company, L.L.C., a Delaware limited liability company,
as Depositor, Homecomings Financial Network, Inc., a Delaware corporation,
as
Servicer, and Xxxxx Fargo Bank, N.A., as Trustee, as amended and supplemented
from time to time.
“Prepayment
Assumption”:
As
defined in the Prospectus Supplement.
“Prepayment
Charge”:
With
respect to any Prepayment Period, 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 (other than any Servicer
Prepayment Charge Payment Amount).
“Prepayment
Charge Schedule”:
As of
any date, the list of Prepayment Charges included in the Trust Fund on such
date, attached to the Pooling and Servicing Agreement as Schedule
2
(including the prepayment charge summary attached thereto). 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) |
remaining
prepayment term in months.
|
“Prepayment
Interest Shortfall”:
With
respect to any Distribution Date, for each 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, 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 the month in which such Distribution
Date
occurs. The obligations of the Servicer in respect of any Prepayment Interest
Shortfall are set forth in Section
3.24
of the
Pooling and Servicing Agreement.
“Prepayment
Period”:
With
respect to any Distribution Date, the calendar month immediately preceding
the
calendar month in which such Distribution Date occurs.
“Principal
Distribution Amount”:
With
respect to any Distribution Date, an amount, not less than zero, equal to
the
sum of:
| (i) |
the
principal portion of each Monthly Payment on the Mortgage Loans
due during
the related Due Period, received on or prior to the related Determination
Date or Advanced on or prior to the related Determination
Date;
|
| (ii) |
the
Stated Principal Balance of any Mortgage Loan that was purchased
during
the related Prepayment Period pursuant to or as contemplated by
Section
2.03,
Section
3.16(c)
or
Section
9.01
of
the Pooling and Servicing Agreement and the amount of any shortfall
deposited in the Custodial Account in connection with the substitution
of
a Deleted Mortgage Loan pursuant to Section
2.03
of
the Pooling and Servicing Agreement during the related Prepayment
Period;
|
| (iii) |
the
principal portion of all other unscheduled collections (including,
without
limitation, Principal Prepayments, Insurance Proceeds, Liquidation
Proceeds, Subsequent Recoveries and REO Principal Amortization)
received
during the related Prepayment Period, net of any portion thereof
that
represents a recovery of principal for which an Advance was made
by the
Servicer pursuant to Section
4.03
of
the Pooling and Servicing Agreement in respect of a preceding Distribution
Date; and
|
| (iv) |
the
amount of any Overcollateralization Increase Amount for such Distribution
Date; minus
|
| (v) |
the
amount of any Overcollateralization Reduction Amount for such Distribution
Date.
|
“Principal
Prepayment”:
Any
payment of principal made by the Mortgagor on a Mortgage Loan which is received
in advance of its scheduled Due Date and which is not accompanied by an amount
of interest representing the full amount of scheduled interest due on any
Due
Date in any month or months subsequent to the month of prepayment.
“Principal
Remittance Amount”:
With
respect to any Distribution Date, the sum of the amounts set forth in (i)
through (iii) of the definition of Principal Distribution Amount.
“Private
Certificates”:
As
defined in Section
5.02(b)
of the
Pooling and Servicing Agreement.
“Prospectus
Supplement”:
The
Prospectus Supplement, dated May 19, 2006, relating to the public offering
of
the Class A Certificates and the Mezzanine Certificates (other than the Class
M-10 Certificates).
“PTCE”:
A
Prohibited Transaction Class Exemption issued by the United States Department
of
Labor which provides that exemptive relief is available to any party to any
transaction which satisfies the conditions of the exemption.
“Purchase
Price”:
With
respect to any Mortgage Loan or REO Property to be purchased pursuant to
or as
contemplated by Section
2.03,
Section
3.16(c)
or
Section
9.01
of the
Pooling and Servicing Agreement, and as confirmed by a certification from
a
Servicing Officer to the Trustee, an amount equal to the sum of (i) 100%
of the
Stated Principal Balance thereof as of the date of purchase (or such other
price
as provided in Section
9.01
of the
Pooling and Servicing Agreement), (ii) in the case of (x) a Mortgage Loan,
accrued interest on such Stated Principal Balance at the applicable Expense
Adjusted 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 an Advance by
the
Servicer, which payment or Advance had as of the date of purchase been
distributed pursuant to Section
4.01
of the
Pooling and Servicing Agreement, through the end of the calendar month in
which
the purchase is to be effected plus
and (y)
an REO Property, the sum of (1) accrued interest on such Stated Principal
Balance at the applicable Expense Adjusted 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 an Advance by the Servicer through the end of the calendar month
immediately preceding the calendar month in which such REO Property was
acquired, plus
(2) REO
Imputed Interest for such REO Property for each calendar month commencing
with
the calendar month in which such REO Property was acquired and ending with
the
calendar month in which such purchase is to be effected, net of the total
of all
net rental income, Insurance Proceeds, Liquidation Proceeds and Advances
that as
of the date of purchase had been distributed as or to cover REO Imputed Interest
pursuant to Section
4.01
of the
Pooling and Servicing Agreement, (iii) any unreimbursed Servicing Advances
and
Advances (including Nonrecoverable 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 Custodial Account
in
respect of such Mortgage Loan or REO Property pursuant to Section
3.11(a)(ix)
and
Section
3.16(b)
of the
Pooling and Servicing Agreement, and (v) in the case of a Mortgage Loan required
to be purchased pursuant to Section
2.03
of the
Pooling and Servicing Agreement, expenses reasonably incurred or to be incurred
by the Servicer or the Trustee in respect of the breach or defect giving
rise to
the purchase obligation including any costs and damages incurred by the Trust
Fund in connection with any violation by such loan of any predatory or abusive
lending law.
“Qualified
Correspondent”:
Any
Person from which RFC purchased Mortgage Loans, provided that the following
conditions are satisfied: (i) such Mortgage Loans were originated pursuant
to an
agreement between RFC and such Person that contemplated that such Person
would
underwrite mortgage loans from time to time, for sale to RFC, in accordance
with
underwriting guidelines designated by RFC (“Designated Guidelines”) or
guidelines that do not vary materially from such Designated Guidelines; (ii)
such Mortgage Loans were in fact underwritten as described in clause (i)
above
and were acquired by RFC within 180 days after origination; (iii) either
(x) the
Designated Guidelines were, at the time such Mortgage Loans were originated,
used by RFC in origination of mortgage loans of the same type as the Mortgage
Loans for RFC’s own account or (y) the Designated Guidelines were, at the time
such Mortgage Loans were underwritten, designated by RFC on a consistent
basis
for use by lenders in originating mortgage loans to be purchased by RFC;
and
(iv) RFC employed, at the time such Mortgage Loans were acquired by RFC,
pre-purchase or post-purchase quality assurance procedures (which may involve,
among other things, review of a sample of mortgage loans purchased during
a
particular time period or through particular channels) designed to ensure
that
Persons from which it purchased mortgage loans properly applied the underwriting
criteria designated by RFC.
“Qualified
Substitute Mortgage Loan”:
A
mortgage loan substituted for a Deleted Mortgage Loan pursuant to the terms
of
the Pooling and Servicing Agreement which must, on the date of such
substitution, (i) have an outstanding Stated 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 Stated Principal
Balance of the Deleted Mortgage Loan as of the Due Date in the calendar month
during which the substitution occurs, (ii) have a Mortgage Rate not less
than
(and not more than one percentage point in excess of) the Mortgage Rate of
the
Deleted Mortgage Loan, (iii) with respect to any Adjustable-Rate Mortgage
Loan,
have a Maximum Mortgage Rate not less than the Maximum Mortgage Rate on the
Deleted Mortgage Loan, (iv) with respect to any Adjustable-Rate Mortgage
Loan,
have a Minimum Mortgage Rate not less than the Minimum Mortgage Rate of the
Deleted Mortgage Loan, (v) with respect to any Adjustable-Rate Mortgage Loan,
have a Gross Margin equal to the Gross Margin of the Deleted Mortgage Loan,
(vi)
with respect to any 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) have
a
risk grading determined by the Originator at least equal to the risk grading
assigned on the Deleted Mortgage Loan and (xi) 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 risk gradings 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
(xi)
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,
Xxxxx’x 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 zero) 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 Custodial Account in respect of
such
Mortgage Loan pursuant to Section
3.11(a)(ix)
and
Section
3.16(b)
of the
Pooling and 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 with respect to such Mortgage Loan
pursuant to Section
3.11(a)(iii)
of the
Pooling and Servicing Agreement.
With
respect to any REO Property as to which a Final Recovery Determination has
been
made, an amount (not less than zero) equal to (i) the unpaid principal balance
of the related Mortgage Loan as of the date of acquisition of such REO Property
on behalf of REMIC I, plus
(ii)
accrued interest from the Due Date as to which interest was last paid by
the
Mortgagor in respect of the related Mortgage Loan through the end of the
calendar month immediately preceding the calendar month in which such REO
Property was acquired, calculated in the case of each calendar month during
such
period (A) at an annual rate equal to the annual rate at which interest was
then
accruing on the related Mortgage Loan and (B) on a principal amount equal
to the
Stated Principal Balance of the related Mortgage Loan as of the close of
business on the Distribution Date during such calendar month, plus
(iii)
REO Imputed Interest for such REO Property for each calendar month commencing
with the calendar month in which such REO Property was acquired and ending
with
the calendar month in which such Final Recovery Determination was made,
plus
(iv) any
amounts previously withdrawn from the Custodial Account in respect of the
related Mortgage Loan pursuant to Section
3.11(a)(ix)
and
Section
3.16(b)
of the
Pooling and Servicing Agreement, minus
(v)
the
aggregate of all Advances and Servicing Advances (in the case of Servicing
Advances, without duplication of amounts netted out of the rental income,
Insurance Proceeds and Liquidation Proceeds described in clause
(vi)
below)
made by the Servicer in respect of such REO Property or the related Mortgage
Loan for which the Servicer has been or, in connection with such Final Recovery
Determination, will be reimbursed pursuant to Section
3.23
of the
Pooling and 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 Certificate
Account pursuant to Section
3.23
of the
Pooling and 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.
If
the
Servicer receives Subsequent Recoveries with respect to any Mortgage Loan,
the
amount of the Realized Loss with respect to that Mortgage Loan will be reduced
to the extent such recoveries are applied to principal distributions on any
Distribution Date.
Realized
Losses allocated to the Class CE Certificates shall be allocated first to
the
REMIC II Regular Interest CE-IO in reduction of the accrued but unpaid interest
thereon until such accrued and unpaid interest shall have been reduced to
zero
and then to the REMIC II Regular Interest CE-PO in reduction of the Principal
Balance thereof.
“Record
Date”:
With
respect to each Distribution Date and any Book-Entry Certificate, the Business
Day immediately preceding such Distribution Date. With respect to each
Distribution Date and any other Certificates, including any Definitive
Certificates, the last Business Day of the month immediately preceding the
month
in which such Distribution Date occurs, except in the case of the first Record
Date which shall be the Closing Date.
“Reference
Banks”:
Deutsche Bank AG, Barclays’ Bank PLC, The Tokyo Mitsubishi Bank and National
Westminster Bank PLC and their successors in interest; provided,
however,
that if
any of the foregoing banks are not suitable to serve as a Reference Bank,
then
any leading banks selected by the Trustee, after consultation with the
Depositor, which are engaged in transactions in Eurodollar deposits in the
international Eurocurrency market (i) with an established place of business
in
London and (ii) not controlling, under the control of or under common control
with the Depositor or any Affiliate thereof.
“Refinanced
Mortgage Loan”:
A
Mortgage Loan the proceeds of which were not used to purchase the related
Mortgaged Property.
“Regular
Certificate”:
Any
Class A Certificate, Mezzanine Certificate, Class CE Certificate or Class
P
Certificate.
“Regular
Interest”:
A
“regular interest” in a REMIC within the meaning of Section 860G(a)(1) of the
Code.
“Regulation
AB”:
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.
“Relief
Act”:
The
Servicemembers Civil Relief Act.
“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
calendar month 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
related thereto as from time to time are subject to the Pooling and Servicing
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 the Pooling and Servicing Agreement and any proceeds
thereof; (iv) the Depositor’s rights under the Mortgage Loan Purchase Agreement
(including any security interest created thereby); and (v) the Custodial
Account
(other than any amounts representing any Servicer Prepayment Charge Payment
Amount), the Certificate Account (other than any amounts representing any
Servicer Prepayment Charge Payment Amount) 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 all
payments and other collections of principal and interest due on the Mortgage
Loans on or before the Cut-off Date, all Prepayment Charges payable in
connection with Principal Prepayments on the Mortgage Loans made before the
Cut-off Date, the Net WAC Rate Carryover Reserve Account and the Cap
Contracts.
“REMIC
I Interest Loss Allocation Amount”:
With
respect to any Distribution Date, an amount equal to (a) the product of (i)
the
aggregate Stated Principal Balance of the Mortgage Loans and REO Properties
then
outstanding and (ii) the REMIC I Remittance Rate for REMIC I Regular Interest
I-LTAA minus
the
Marker Rate, divided by (b) 12.
“REMIC
I Overcollateralized Amount”:
With
respect to any date of determination, (i) 1% of the aggregate Uncertificated
Balance of the REMIC I Regular Interests (other than REMIC I Regular Interest
I-LTP) minus
(ii) the
aggregate Uncertificated Balance of REMIC I Regular Interest I-LTA1, REMIC
I
Regular Interest I-LTA2, REMIC I Regular Interest I-LTA3, REMIC I Regular
Interest I-LTA4, REMIC I Regular Interest I-LTM1, REMIC I Regular Interest
I-LTM2, REMIC I Regular Interest I-LTM3, REMIC I Regular Interest I-LTM4,
REMIC
I Regular Interest I-LTM5, REMIC I Regular Interest I-LTM6, REMIC I Regular
Interest I-LTM7, REMIC I Regular Interest I-LTM8, REMIC I Regular Interest
I-LTM9, REMIC I Regular Interest I-LTM10, in each case as of such date of
determination.
“REMIC
I Principal Loss Allocation Amount”:
With
respect to any Distribution Date, an amount equal to the product of (i) the
aggregate Stated Principal Balance of the Mortgage Loans and REO Properties
then
outstanding and (ii) 1 minus
a
fraction, the numerator of which is two times the aggregate Uncertificated
Balance of REMIC I Regular Interest I-LTA1, REMIC I Regular Interest I-LTA2,
REMIC I Regular Interest I-LTA3, REMIC I Regular Interest I-LTA4, REMIC I
Regular Interest I-LTM1, REMIC I Regular Interest I-LTM2, REMIC I Regular
Interest I-LTM3, REMIC I Regular Interest I-LTM4, REMIC I Regular Interest
I-LTM5, REMIC I Regular Interest I-LTM6, REMIC I Regular Interest I-LTM7,
REMIC
I Regular Interest I-LTM8, REMIC I Regular Interest I-LTM9 and REMIC I Regular
Interest I-LTM10 and the denominator of which is the aggregate Uncertificated
Balance of REMIC I Regular Interest I-LTA1, REMIC I Regular Interest I-LTA2,
REMIC I Regular Interest I-LTA3, REMIC I Regular Interest I-LTM1, REMIC I
Regular Interest I-LTM2, REMIC I Regular Interest I-LTM3, REMIC I Regular
Interest I-LTM4, REMIC I Regular Interest I-LTM5, REMIC I Regular Interest
I-LTM6, REMIC I Regular Interest I-LTM7, REMIC I Regular Interest I-LTM8,
REMIC
I Regular Interest I-LTM9, REMIC I Regular Interest I-LTM10 and REMIC I Regular
Interest I-LTZZ.
“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 or shall otherwise be entitled to interest as set
forth
herein, and shall be entitled to distributions of principal, subject to the
terms and conditions of the Pooling and Servicing Agreement, in an aggregate
amount equal to its initial Uncertificated Balance as set forth in the
Preliminary
Statement
hereto.
The REMIC I Regular Interests are as follows: REMIC I Regular Interest I-LTAA,
REMIC I Regular Interest I-LTA1, REMIC I Regular Interest I-LTA2, REMIC I
Regular Interest I-LTA3, REMIC I Regular Interest I-LTA4, REMIC I Regular
Interest I-LTM1, REMIC I Regular Interest I-LTM2, REMIC I Regular Interest
I-LTM3, REMIC I Regular Interest I-LTM4, REMIC I Regular Interest I-LTM5,
REMIC
I Regular Interest I-LTM6, REMIC I Regular Interest I-LTM7, REMIC I Regular
Interest I-LTM8, REMIC I Regular Interest I-LTM9, REMIC I Regular Interest
I-LTM10, REMIC I Regular Interest I-LTZZ and REMIC I Regular Interest
I-LTP.
“REMIC
I Remittance Rate”:
With
respect to each REMIC I Regular Interest and any Distribution Date, the weighted
average of the Expense Adjusted Mortgage Rates of the Mortgage Loans, weighted
based on their Stated Principal Balances as of the first day of the related
Due
Period.
“REMIC
I Required Overcollateralized Amount”:
1% of
the Overcollateralization Target Amount.
“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 Class A Certificates,
the Mezzanine Certificates, the Class CE Certificates, the Class P Certificates
and the Class R-II Interest and all amounts deposited therein, with respect
to
which a separate REMIC election is to be made.
“REMIC
II Regular Interests”:
Any
Regular Interest issued by REMIC II, the ownership of which is evidenced
by a
Class A Certificate, Class M Certificate or Class CE Certificate.
“REMIC
II Regular Interest CE-IO”:
A
separate non-certificated regular interest of REMIC II designated as a REMIC
II
Regular Interest. REMIC II Regular Interest CE-IO shall have no entitlement
to
principal and shall be entitled to distributions of interest subject to the
terms and conditions of the Pooling and Servicing Agreement, in an aggregate
amount equal to interest distributable with respect to the Class CE Certificates
pursuant to the terms and conditions of the Pooling and Servicing
Agreement.
“REMIC
II Regular Interest CE-PO”:
A
separate non-certificated regular interest of REMIC II designated as a REMIC
II
Regular Interest. REMIC II Regular Interest CE-PO shall have no entitlement
to
interest and shall be entitled to distributions of principal subject to the
terms and conditions of the Pooling and Servicing Agreement, in an aggregate
amount equal to principal distributable with respect to the Class CE
Certificates pursuant to the terms and conditions of the Pooling and Servicing
Agreement.
“REMIC
Provisions”:
Provisions of the federal income tax law relating to real estate mortgage
investment conduits, which appear at Section 860A through 860G of the Code,
and
related provisions, and proposed, temporary and final regulations and published
rulings, notices and announcements promulgated thereunder, as the foregoing
may
be in effect from time to time.
“Remittance
Report”:
A
report in form and substance acceptable to the Trustee on an electronic data
file or tape prepared by the Servicer pursuant to Section
4.03
of the
Pooling and Servicing Agreement, with such additions, deletions and
modifications as agreed to by the Trustee and the Servicer.
“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
3.23
of the
Pooling and Servicing Agreement.
“REO
Disposition”:
The
sale or other disposition of an REO Property on behalf of REMIC I.
“REO
Imputed Interest”:
As to
any REO Property, for any calendar month during which such REO Property was
at
any time part of REMIC I, one month’s interest at the applicable Net Mortgage
Rate on the Stated Principal Balance of such REO Property (or, in the case
of
the first such calendar month, of the related Mortgage Loan, if appropriate)
as
of the close of business on the Distribution Date in such calendar
month.
“REO
Principal Amortization”:
With
respect to any REO Property, for any calendar month, the excess, if any,
of (a)
the aggregate of all amounts received in respect of such REO Property during
such calendar month, whether in the form of rental income, sale proceeds
(including, without limitation, that portion of the Termination Price paid
in
connection with a purchase of all of the Mortgage Loans and REO Properties
pursuant to Section
9.01
of the
Pooling and Servicing Agreement that is allocable to such REO Property) or
otherwise, net of any portion of such amounts (i) payable pursuant to
Section
3.23(c)
of the
Pooling and Servicing Agreement in respect of the proper operation, management
and maintenance of such REO Property or (ii) payable or reimbursable to the
Servicer pursuant to Section
3.23(d)
of the
Pooling and Servicing Agreement for unpaid Servicing Fees in respect of the
related Mortgage Loan and unreimbursed Servicing Advances and 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 on behalf of REMIC I through
foreclosure or deed-in-lieu of foreclosure, as described in Section
3.23
of the
Pooling and Servicing Agreement.
“Request
for Release”:
A
release signed by a Servicing Officer, in the form of Exhibit
E
attached
hereto.
“Reserve
Interest Rate”:
With
respect to any Interest Determination Date, the rate per annum that the Trustee
determines to be either (i) the arithmetic mean (rounded upwards if necessary
to
the nearest whole multiple of 1/16%) of the one-month U.S. dollar lending
rates
which New York City banks selected by the Trustee, 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 Trustee can determine no such arithmetic mean, the
lowest
one-month U.S. dollar lending rate which New York City banks selected by
the
Trustee, after consultation with the Depositor, are quoting on such Interest
Determination Date to leading European banks.
“Residential
Dwelling”:
Any
one of the following: (i) an attached, detached or semi-detached one-family
dwelling, (ii) an attached, detached or semi-detached two- to four-family
dwelling, (iii) a one-family dwelling unit in a Xxxxxx Xxx eligible condominium
project, (iv) an attached, detached or semi-detached one-family dwelling in
a planned unit development, none of which is a co-operative or mobile home
(as
defined in 00 Xxxxxx Xxxxxx Code, Section 5402(6)).
“Residual
Certificates”:
The
Class R Certificates.
“Residual
Interest”:
The
sole class of “residual interests” in a REMIC within the meaning of Section
860G(a)(2) of the Code.
“Responsible
Officer”:
When
used with respect to the Trustee, any vice president, managing director,
director, any assistant vice president, the Secretary, any assistant secretary,
the Treasurer, any assistant treasurer, any associate, any trust officer
or
assistant trust officer or any other officer of the Trustee having direct
responsibility over the Pooling and Servicing Agreement or otherwise engaged
in
performing functions similar to those performed by any of the above designated
officers 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.
“RFC”:
Residential Funding Corporation, a Delaware corporation, or its successor
in
interest.
“Rolling
Three-Month Delinquency Average”:
With
respect to any Distribution Date, the average aggregate unpaid principal
balance
of the Mortgage Loans delinquent 60 days or more for each of the three (or
one
and two, in the case of the Distribution Dates in June 2006 and July 2006,
respectively) immediately preceding months.
“S&P”:
Standard & Poor’s Ratings Services, a division of the XxXxxx-Xxxx Companies,
Inc., or its successor in interest.
“Securitization
Transaction”:
Any
transaction involving either (1) a sale or other transfer of some or all
of the
Mortgage Loans directly or indirectly to an issuing entity in connection
with an
issuance of publicly offered or privately placed, rated or unrated
mortgage-backed securities or (2) an issuance of publicly offered or privately
placed, rated or unrated securities, the payments on which are determined
primarily by reference to one or more portfolios of residential mortgage
loans
consisting, in whole or in part, of some or all of the Mortgage
Loans.
“Seller”:
Xxxxxxxxxx Securities, LP, a Delaware limited partnership, 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 A Certificates
and
(ii) the Interest Carry Forward Amount, if any, for such Distribution Date
for
the Class A Certificates.
“Servicer”:
Homecomings Financial Network, Inc., a Delaware corporation, or any successor
servicer appointed as herein provided, in its capacity as Servicer
hereunder.
“Servicer
Event of Default”:
One or
more of the events described in Section
7.01
of the
Pooling and Servicing Agreement.
“Servicer
Information”:
As
defined in Section
12.07(a)(i)
of the
Pooling and Servicing Agreement.
“Servicer
Prepayment Charge Payment Amount”:
The
amounts payable by the Servicer in respect of any waived Prepayment Charges
pursuant to Section
3.01
of the
Pooling and Servicing Agreement.
“Servicer
Remittance Date”:
With
respect to any Distribution Date, by 1:00 p.m. New York time on the Business
Day
preceding the related Distribution Date.
“Servicer
Termination Test”:
The
Servicer Termination Test will be failed with respect to any Distribution
Date
if the aggregate amount of Realized Losses incurred since the Cut-off Date
through the last day of the related Due Period (reduced by the aggregate
amount
of Subsequent Recoveries received from the Cut-off Date through the last
day of
the related Due Period) divided by aggregate Stated 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:
|
Payment
Date Occurring In
|
Percentage
(%)
|
|
June
2009 through May 2010
|
3.50
|
|
June
2010 through May 2111
|
5.00
|
|
June
2011 through May 2012
|
6.25
|
|
June
2012 and thereafter
|
7.00
|
“Servicing
Account”:
The
account or accounts created and maintained pursuant to Section
3.09
of the
Pooling and Servicing Agreement.
“Servicing
Advances”:
The
reasonable “out-of-pocket” costs and expenses (including legal fees) incurred by
the Servicer in connection with a default, delinquency or other unanticipated
event by the Servicer in the performance of its servicing obligations,
including, but not limited to, the cost of (i) the preservation, restoration,
inspection and protection of a Mortgaged Property, (ii) any enforcement or
judicial proceedings, including but not limited to foreclosures and litigation,
in respect of a particular Mortgage Loan, (iii) the management (including
reasonable fees in connection therewith) and liquidation of any REO Property
and
(iv) the performance of its obligations under Section
3.01,
Section
3.09,
Section
3.14,
Section
3.16
and
Section
3.23
of the
Pooling and Servicing Agreement. The Servicer shall not be required to make
any
Nonrecoverable Servicing Advances.
“Servicing
Criteria”:
The
“servicing criteria” set forth in Item 1122(d) of Regulation AB, as such may be
amended from time to time.
“Servicing
Fee”:
With
respect to each Mortgage Loan and for any calendar month, an amount equal
to the
Servicing Fee Rate accrued for one month (or in the event of any payment
of
interest which accompanies a Principal Prepayment in full or in part made
by the
Mortgagor during such calendar month, interest for the number of days covered
by
such payment of interest) on the same principal amount on which interest
on such
Mortgage Loan accrues for such calendar month, calculated on the basis of
a
360-day year consisting of twelve 30-day months. A portion of such Servicing
Fee
may be retained by any Sub-Servicer as its servicing compensation.
“Servicing
Fee Rate”:
The
Servicing Fee Rate for any Distribution Date is at least 0.29% per annum
and not
more than 0.54% per annum of the outstanding principal balance of the applicable
mortgage loan, as specified in the Mortgage Loan Schedule.
“Servicing
Officer”:
Any
officer of the 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 to the Trustee and the Depositor
on the Closing Date, as such list may from time to time be amended.
“Servicing
Transfer Costs”:
Shall
mean all reasonable costs and expenses incurred by the Trustee in connection
with the transfer of servicing from a predecessor servicer, including, without
limitation, any reasonable costs or expenses associated with the complete
transfer of all servicing data and the completion, correction or manipulation
of
such servicing data as may be required by the Trustee to correct any errors
or
insufficiencies in the servicing data or otherwise to enable the Trustee
(or any
successor servicer appointed pursuant to Section
7.02
of the
Pooling and Servicing Agreement) to service the Mortgage Loans properly and
effectively and any fees associated with MERS.
“Single
Certificate”:
With
respect to any Class of Certificates (other than the Class P Certificates
and
the Residual Certificates), a hypothetical Certificate of such Class evidencing
a Percentage Interest for such Class corresponding to an initial Certificate
Principal Balance of $1,000. With respect to the Class P Certificates and
the
Residual Certificates, a hypothetical Certificate of such Class evidencing
a
100% Percentage Interest in such Class.
“Startup
Day”:
With
respect to each Trust REMIC, the day designated as such pursuant to Section
10.01(b)
of the
Pooling and Servicing Agreement.
“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 principal
balance of such Mortgage Loan as of the Cut-off Date, as shown on 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 and distributed pursuant to Section
4.01
of the
Pooling and Servicing 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
4.01
of the
Pooling and Servicing Agreement on or before such date of determination,
(iii)
all Liquidation Proceeds and Insurance Proceeds applied by the Servicer as
recoveries of principal in accordance with the provisions of Section
3.16
of the
Pooling and Servicing Agreement, to the extent distributed pursuant to
Section
4.01
of the
Pooling and Servicing Agreement on or before such date of determination,
and
(iv) any Realized Loss incurred with respect thereto as a result of a Deficient
Valuation made during or prior to the Prepayment Period for the most recent
Distribution Date coinciding with or preceding such date of determination;
and
(b) as of any date of determination coinciding with or subsequent to the
Distribution Date on which the proceeds, if any, of a Liquidation Event with
respect to such Mortgage Loan would be distributed, zero. With respect to
any
REO Property: (a) as of any date of determination up to but not including
the
Distribution Date on which the proceeds, if any, of a Liquidation Event with
respect to such REO Property would be distributed, an amount (not less than
zero) equal to the Stated Principal Balance of the related Mortgage Loan
as of
the date on which such REO Property was acquired on behalf of REMIC I,
minus
the sum
of (i) if such REO Property was acquired before the Distribution Date in
any
calendar month, the principal portion of the Monthly Payment due on the Due
Date
in the calendar month of acquisition, to the extent advanced by the Servicer
and
distributed pursuant to Section
4.01
of the
Pooling and Servicing 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 the
Pooling and Servicing Agreement on or before such date of determination;
and (b)
as of any date of determination coinciding with or subsequent to the
Distribution Date on which the proceeds, if any, of a Liquidation Event with
respect to such REO Property would be distributed, zero.
“Stepdown
Date”:
The
later to occur of (a) the Distribution Date occurring in June 2009 and (b)
the
first Distribution Date on which the Credit Enhancement Percentage (calculated
for this purpose only 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 equal to or greater than
48.30%.
“Subcontractor”:
Any
vendor, subcontractor or other Person (but not including the Trustee, except
to
the extent described in Article
XI)
that is
not responsible for the overall servicing (as “servicing” is commonly understood
by participants in the mortgage-backed securities market) of Mortgage Loans
but
performs one or more discrete functions identified in Item 1122(d) of Regulation
AB with respect to Mortgage Loans under the direction or authority of the
Servicer or a Sub-Servicer.
“Subordination
Percentage”:
With
respect to each class of Class A and Mezzanine Certificates, the applicable
approximate percentage set forth in the table below.
|
Class
|
Percentage
(%)
|
Class
|
Percentage
(%)
|
|
A
|
51.70
|
M-7
|
85.30
|
|
M-1
|
59.50
|
M-8
|
88.10
|
|
M-2
|
66.80
|
M-9
|
90.10
|
|
M-3
|
71.10
|
M-10
|
92.40
|
|
M-4
|
75.00
|
||
|
M-5
|
78.80
|
||
|
M-6
|
82.10
|
“Sub-Servicer”:
Any
Person with which the Servicer has entered into a Sub-Servicing Agreement
and
which meets the qualifications of a Sub-Servicer pursuant to Section
3.02
of the
Pooling and Servicing Agreement.
“Sub-Servicing
Account”:
As
defined in Section
3.08
of the
Pooling and Servicing Agreement.
“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 the
Pooling and Servicing Agreement.
“Subsequent
Recoveries”:
As of
any Distribution Date, unexpected amounts received by the Servicer (net of
any
related expenses permitted to be reimbursed to the Servicer) specifically
related to a Mortgage Loan that was the subject of a liquidation or an REO
Disposition prior to the related Prepayment Period that resulted in a Realized
Loss. If Subsequent Recoveries are received, they will be included as part
of
the Principal Remittance Amount for the following Distribution Date. In
addition, after giving effect to all distributions on a Distribution Date,
the
amount of such Subsequent Recoveries will increase the Certificate Principal
Balance first, of the Class A Certificates then outstanding, if a Realized
Loss
had been allocated to the Class A Certificates, on a pro
rata
basis by
the amount of such Subsequent Recoveries, and second, of the class of Mezzanine
Certificates then outstanding with the highest distribution priority to which
a
Realized Loss was allocated. Thereafter, such class of Class A and Mezzanine
Certificates will accrue interest on the increased Certificate Principal
Balance.
“Substitution
Shortfall Amount”:
As
defined in Section
2.03(b)
of the
Pooling and Servicing 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 Fund due to the classification of portions thereof as REMICs under
the
REMIC Provisions, together with any and all other information reports or
returns
that may be required to be furnished to the Certificateholders or filed with
the
Internal Revenue Service or any other governmental taxing authority under
any
applicable provisions of federal, state or local tax laws.
“Telerate
Page 3750”:
The
display designated as page “3750” on the Dow Xxxxx Telerate Capital Markets
Report (or such other page as may replace page 3750 on that report for the
purpose of displaying London interbank offered rates of major
banks).
“Termination
Price”:
As
defined in Section
9.01
of the
Pooling and Servicing Agreement.
“Terminator”:
As
defined in Section
9.01
of the
Pooling and Servicing Agreement.
“Third-Party
Originator”:
Each
Person, other than a Qualified Correspondent, that originated Mortgage Loans
acquired by RFC.
“Transaction
Party”:
As
defined in Section
11.02
of the
Pooling and Servicing Agreement.
“Transfer”:
Any
direct or indirect transfer, sale, pledge, hypothecation, or other form of
assignment of any Ownership Interest in a Certificate.
“Transferee”:
Any
Person who is acquiring by Transfer any Ownership Interest in a
Certificate.
“Transferor”:
Any
Person who is disposing by Transfer of any Ownership Interest in a
Certificate.
“Trigger
Event”:
A
Trigger Event is in effect on any Distribution Date on or after the Stepdown
Date if:
(1) the
Delinquency Percentage exceeds 32.00% of the then current Credit Enhancement
Percentage for the prior Distribution Date; or
(2) the
aggregate amount of Realized Losses incurred since the Cut-off Date through
the
last day of the related Due Period (after giving effect to scheduled payments
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, reduced by the aggregate amount of Subsequent Recoveries received
since
the Cut-off Date through the last day of the related Due Period) divided
by
aggregate Stated 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 Occurring In
|
Percentage
(%)
|
|
June
2009 through May 2010
|
3.50
|
|
June
2010 through May 2011
|
5.00
|
|
June
2011 through May 2012
|
6.25
|
|
June
2012 and thereafter
|
7.00
|
“Trust
Fund”:
Collectively, all of the assets of each Trust REMIC, the Net WAC Rate Carryover
Reserve Account, the Cap Contracts and the other assets conveyed by the
Depositor to the Trustee pursuant to Section
2.01
of the
Pooling and Servicing Agreement.
“Trust
REMIC”:
Any of
REMIC I or REMIC II.
“Trustee”:
Xxxxx
Fargo Bank, N.A., a national banking association, or its successor in interest,
or any successor trustee appointed as herein provided.
“Trustee
Information”:
As
defined in Section
11.05
of the
Pooling and Servicing Agreement.
“Trustee
Fee”:
The
amount payable to the Trustee on each Distribution Date pursuant to Section
8.05
of the
Pooling and Servicing Agreement as compensation for all services rendered
by it
in the execution of the trust hereby created and in the exercise and performance
of any of the powers and duties of the Trustee hereunder, which amount shall
equal the Trustee Fee Rate accrued for one month on the aggregate Stated
Principal Balance of the Mortgage Loans and any REO Properties as of the
first
day of the related Due Period (or, in the case of the initial Distribution
Date,
as of the Cut-off Date), calculated on the basis of a 360-day year consisting
of
twelve 30-day months.
“Trustee
Fee Rate”:
0.0025% per annum.
“Uncertificated
Balance”:
The
amount of any REMIC I Regular Interest outstanding as of any date of
determination. As of the Closing Date, the Uncertificated Balance of each
REMIC
I 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 each REMIC I Regular Interest shall be reduced
by all
distributions of principal made on such REMIC I Regular Interest on such
Distribution Date pursuant to Section
4.01
of the
Pooling and Servicing Agreement and, if and to the extent necessary and
appropriate, shall be further reduced on such Distribution Date by Realized
Losses as provided in Section
4.04
of the
Pooling and Servicing Agreement. The Uncertificated Balance of REMIC I Regular
Interest I-LTZZ shall be increased by interest deferrals as provided in
Section
4.01(a)(1)(i)(A)
of the
Pooling and Servicing Agreement. The Uncertificated Balance of each REMIC
I
Regular Interest shall never be less than zero.
“Uncertificated
Interest”:
With
respect to any REMIC I Regular Interest for any Distribution Date, one month’s
interest at the REMIC I Remittance Rate applicable to such REMIC I Regular
Interest for such Distribution Date, accrued on the Uncertificated Balance
thereof immediately prior to such Distribution Date. Uncertificated Interest
in
respect of any REMIC I Regular Interest 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 I 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
3.24
of the
Pooling and Servicing Agreement and (b) the aggregate amount of any Relief
Act
Interest Shortfall, if any allocated, in each case, to such REMIC I Regular
Interest pursuant to Section 1.02
of the
Pooling and Servicing Agreement. In addition, Uncertificated Interest with
respect to each Distribution Date, as to any REMIC I Regular Interest shall
be
reduced by Realized Losses, if any, allocated to such REMIC I Regular Interest
pursuant to Section
1.02
and
Section
4.04
of the
Pooling and Servicing Agreement.
“Underwriters’
Exemption”:
An
individual exemption issued by the United States Department of Labor, Prohibited
Transaction Exemption 90-30, as amended by XXX 00-00, XXX 0000-00 and PTE
2002-41, to Bear, Xxxxxxx & Co. Inc., for specific offerings in which Bear,
Xxxxxxx & Co. Inc. or any person directly or indirectly, through one or more
intermediaries, controlling, controlled by or under common control with Bear,
Xxxxxxx & Co. Inc. is an underwriter, placement agent or a manager or
co-manager of the underwriting syndicate or selling group where the trust
and
the offered certificates meet specified conditions. The Underwriters’ Exemption,
as amended, provides a partial exemption for transactions involving certificates
representing a beneficial interest in a trust and entitling the holder to
pass-through payments of principal, interest and/or other payments with respect
to the trust’s assets.
“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
3.14
of the
Pooling and Servicing Agreement.
“United
States Person”:
A
citizen or resident of the United States, a corporation, partnership (or
other
entity treated as a corporation or partnership for United States federal
income
tax purposes) created or organized in, or under the laws of, the United States,
any state thereof, or the District of Columbia (except in the case of a
partnership, to the extent provided in Treasury regulations) provided that,
for
purposes solely of the restrictions on the transfer of Class R Certificates,
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 by the applicable operative agreement to be United States Persons,
or an estate the income of which from sources without the United States is
includible in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within
the
United States, 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 authority to control all substantial decisions
of the trust. The term “United States” shall have the meaning set forth in
Section 7701 of the Code or successor provisions.
“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 Originator of the Mortgage
Loan at the time of origination of the Mortgage Loan by an appraiser who
met the
minimum requirements of Xxxxxx Xxx and Xxxxxxx Mac and (b) the value thereof
as
determined by a review appraisal conducted by the Originator in accordance
with
the 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 clause (i) above.
“Voting
Rights”:
The
portion of the voting rights of all of the Certificates which is allocated
to
any Certificate. With respect to any date of determination, 98% of all Voting
Rights will be allocated among the holders of the Class A Certificates, the
Mezzanine Certificates and the Class CE Certificates in proportion to the
then
outstanding Certificate Principal Balances of their respective Certificates,
1%
of all Voting Rights will be allocated to the holders of the Class P
Certificates and 1% of all Voting Rights will be allocated among the holders
of
the Residual 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.
EXHIBIT
A-1
FORM
OF
CLASS A-1 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
(THE “CODE”).
|
Series
2006-RFC1
Pass-Through
Rate: Variable
Cut-off
Date: May 1, 2006
Date
of Pooling and Servicing Agreement: May 1, 2006
First
Distribution Date: June 26, 2006
No.
1
|
Aggregate
Certificate Principal Balance of the Class A-1 Certificates as of
the
Closing Date:
$320,333,000
Denomination:
$320,333,000
Servicer:
Homecomings Financial Network, Inc.
Trustee:
Xxxxx Fargo Bank, N.A.
Closing
Date: May 24, 2006
CUSIP:
14453E AA 0[
]144531 DZ 0
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
ASSET-BACKED
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a Trust Fund (the “Trust Fund”)
consisting primarily of a pool of conventional one-
to
four-family, adjustable-rate and fixed-rate, interest-only and fully-amortizing,
first lien and second lien mortgage loans
(the
“Mortgage Loans”) formed and sold by
STANWICH
ASSET ACCEPTANCE COMPANY, L.L.C.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STANWICH ASSET
ACCEPTANCE COMPANY, L.L.C., THE SERVICER, THE TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
This
certifies that Cede & Co. is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the aggregate
Certificate Principal Balance of the Class A-1 Certificates as of the Closing
Date) in that certain beneficial ownership interest evidenced by all the Class
A-1 Certificates in REMIC II created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Stanwich Asset
Acceptance Company, L.L.C. (hereinafter called the “Depositor,” which term
includes any successor entity under the Agreement), the Servicer and the
Trustee, a summary of certain of the pertinent provisions of which is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to the Person
in whose name this Certificate is registered on the Record Date, in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to the Holders of Class A-1
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will be
made
or caused to be made by the Trustee by wire transfer in immediately available
funds to the account of the Person entitled thereto if such Person shall have
so
notified the Trustee in writing at least five Business Days prior to the Record
Date immediately prior to such Distribution Date or otherwise by check mailed
by
first class mail to the address of the Person entitled thereto, as such name
and
address shall appear on the Certificate Register. Notwithstanding the above,
the
final distribution on this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency appointed by the Trustee
for that purpose as provided in the Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable with respect
to this Certificate on any Distribution Date shall equal a rate per annum equal
to the lesser of (i) the related Formula Rate for such Distribution Date and
(ii) the related Net WAC Pass-Through Rate for such Distribution
Date.
This
Certificate is one of a duly authorized issue of Certificates designated as
Asset-Backed Pass-Through Certificates of the Series specified on the face
hereof (herein called the “Certificates”) and representing a Percentage Interest
in the Class of Certificates specified on the face hereof equal to the
denomination specified on the face hereof divided by the aggregate Certificate
Principal Balance of the Class of Certificates specified on the face
hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Custodial Account and the Certificate Account may be made from time to time
for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of advances made, or certain expenses incurred, with respect
to
the Mortgage Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Servicer, the Trustee, and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 66% of the Voting
Rights. Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all future Holders of this Certificate
and
of any Certificate issued upon the transfer hereof or in exchange herefor or
in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices or
agencies appointed by the Trustee as provided in the Agreement, duly endorsed
by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trustee duly executed by,
the
Holder hereof or such Holder’s attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
Each
beneficial owner of this Certificate or any interest therein shall be deemed
to
have represented, by virtue of its acquisition or holding of such Certificate
or
any interest therein, that either (A) it is not an “employee benefit plan” as
defined in Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended (“ERISA”), that is subject to Title I of ERISA, any “plan” as defined
in Section 4975(e)(1) of the Internal Revenue Code of 1986, as amended (the
“Code”), that is subject to Section 4975 of the Code or any entity deemed to
hold plan assets of any of the foregoing, (B) it has acquired and is holding
this Certificate in reliance on the underwriters’ exemption, and that it
understands that there are certain conditions to the availability of the
underwriters’ exemption, including that this Certificate must be rated, at the
time of purchase, not lower than “BBB-” (or its equivalent) by Fitch, S&P or
Xxxxx’x and the Certificate is so rated, that it is an accredited investor as
defined in Rule 501(a)(1) of Regulation D of the Securities Act of 1933, as
amended, and that it will obtain a representation from any transferee that
such
transferee is an accredited investor, or (C)(1) it is an insurance company,
(2)
the source of funds used to acquire or hold this Certificate or any interest
therein is an “insurance company general account,” as such term is defined in
Prohibited Transaction Class Exemption (“PTCE”)
95-60,
and (3) the conditions in Sections I and III of PTCE 95-60 have been
satisfied.
If
this
Certificate or any interest therein is acquired or held in violation of the
provisions of Section 5.02(c) of the Agreement, the next preceding permitted
beneficial owner will be treated as the beneficial owner of this Certificate
retroactive to the date of transfer to the purported beneficial owner.
Any
purported beneficial owner whose acquisition or holding of any this Certificate
or any interest therein was effected in violation of the provisions of Section
5.02(c) of the Agreement shall indemnify and hold harmless the Depositor, the
Servicer, the Trustee and the Trust Fund from and against any and all
liabilities, claims, costs or expenses incurred by those parties as a result
of
that acquisition or holding.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No service charge
will be made for any such registration of transfer or exchange of Certificates,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any transfer
or
exchange of Certificates.
The
Depositor, the Servicer, the Trustee and any agent of the Depositor, the
Servicer or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and none of the Depositor,
the
Servicer, the Trustee nor any such agent shall be affected by notice to the
contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Trustee and required to be paid to them pursuant to the Agreement following
the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan and REO Property remaining in REMIC
I
and (ii) the purchase by the party designated in the Agreement at a price
determined as provided in the Agreement from REMIC I of all the Mortgage Loans
and all property acquired in respect of such Mortgage Loans. The Agreement
permits, but does not require, the party designated in the Agreement to purchase
from REMIC I all the Mortgage Loans and all property acquired in respect of
any
Mortgage Loan at a price determined as provided in the Agreement. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Loans at the time of purchase being less than 10% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor and
the
Trustee assumes no responsibility for their correctness.
Unless
the certificate of authentication hereon has been executed by the Trustee,
by
manual signature, this Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
May 24, 2006
|
XXXXX
FARGO BANK, N.A., as Trustee
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Officer
|
|||||||||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
|
XXXXX
FARGO BANK, N.A., as Trustee
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory
|
|||||||||||||
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
|
TEN
COM -
|
as
tenants in common
|
UNIF
GIFT MIN ACT -
|
Custodian
|
|
(Cust) (Minor)
|
|||
|
TEN
ENT -
|
as
tenants by the entireties
|
under
Uniform Gifts
|
|
|
to
Minors Act
|
|||
|
JT
TEN -
|
as
joint tenants with right if
|
||
|
survivorship
and not as
|
(State)
|
||
|
tenants
in common
|
Additional
abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee)
a
Percentage Interest equal to____% evidenced by the within Asset-Backed
Pass-Through Certificate and hereby authorize(s) the registration of transfer
of
such interest to assignee on the Certificate Register of the Trust
Fund.
I
(we)
further direct the Certificate Registrar to issue a new Certificate of a
like
Percentage Interest and Class to the above named assignee and deliver such
Certificate to the following address:
Dated:
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available
funds
|
to
|
,
|
|||||||
|
for
the account of
|
,
|
|||||||
|
account
number___________, or, if mailed by check, to
|
,
|
|||||||
|
Applicable
statements should be mailed to
|
||||||||
|
_____________________________________________________________________________
|
.
|
|||||||
|
This
information is provided by
|
,
|
|||||||
|
the
assignee named above, or
|
,
|
|||||||
|
as
its agent.
|
||||||||
EXHIBIT
A-2
FORM
OF
CLASS A-2 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
(THE “CODE”).
|
Series
2006-RFC1
Pass-Through
Rate: Variable
Cut-off
Date: May 1, 2006
Date
of Pooling and Servicing Agreement: May 1, 2006
First
Distribution Date: June 26, 2006
No.
1
|
Aggregate
Certificate Principal Balance of the Class A-2 Certificates as of
the
Closing Date: $134,074,000
Denomination:
$134,074,000
Servicer:
Homecomings Financial Network, Inc.
Trustee:
Xxxxx Fargo Bank, N.A.
Closing
Date: May 24, 2006
CUSIP:
14453E AB 8
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
ASSET-BACKED
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a Trust Fund (the “Trust Fund”)
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate and fixed-rate, interest-only and fully-amortizing, first lien
and second lien mortgage loans (the “Mortgage Loans”) formed and sold
by
STANWICH
ASSET ACCEPTANCE COMPANY, L.L.C.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STANWICH ASSET
ACCEPTANCE COMPANY, L.L.C., THE SERVICER, THE TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
This
certifies that Cede & Co. is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the aggregate
Certificate Principal Balance of the Class A-2 Certificates as of the Closing
Date) in that certain beneficial ownership interest evidenced by all the Class
A-2 Certificates in REMIC II created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Stanwich Asset
Acceptance Company, L.L.C. (hereinafter called the “Depositor,” which term
includes any successor entity under the Agreement), the Servicer and the
Trustee, a summary of certain of the pertinent provisions of which is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to the Person
in whose name this Certificate is registered on the Record Date, in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to the Holders of Class A-2
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will be
made
or caused to be made by the Trustee by wire transfer in immediately available
funds to the account of the Person entitled thereto if such Person shall have
so
notified the Trustee in writing at least five Business Days prior to the Record
Date immediately prior to such Distribution Date or otherwise by check mailed
by
first class mail to the address of the Person entitled thereto, as such name
and
address shall appear on the Certificate Register. Notwithstanding the above,
the
final distribution on this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency appointed by the Trustee
for that purpose as provided in the Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable with respect
to this Certificate on any Distribution Date shall equal a rate per annum equal
to the lesser of (i) the related Formula Rate for such Distribution Date and
(ii) the related Net WAC Pass-Through Rate for such Distribution
Date.
This
Certificate is one of a duly authorized issue of Certificates designated as
Asset-Backed Pass-Through Certificates of the Series specified on the face
hereof (herein called the “Certificates”) and representing a Percentage Interest
in the Class of Certificates specified on the face hereof equal to the
denomination specified on the face hereof divided by the aggregate Certificate
Principal Balance of the Class of Certificates specified on the face
hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Custodial Account and the Certificate Account may be made from time to time
for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of advances made, or certain expenses incurred, with respect
to
the Mortgage Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Servicer, the Trustee, and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 66% of the Voting
Rights. Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all future Holders of this Certificate
and
of any Certificate issued upon the transfer hereof or in exchange herefor or
in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices or
agencies appointed by the Trustee as provided in the Agreement, duly endorsed
by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trustee duly executed by,
the
Holder hereof or such Holder’s attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
Each
beneficial owner of this Certificate or any interest therein shall be deemed
to
have represented, by virtue of its acquisition or holding of such Certificate
or
any interest therein, that either (A) it is not an “employee benefit plan” as
defined in Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended (“ERISA”), that is subject to Title I of ERISA, any “plan” as defined
in Section 4975(e)(1) of the Internal Revenue Code of 1986, as amended (the
“Code”), that is subject to Section 4975 of the Code or any entity deemed to
hold plan assets of any of the foregoing, (B) it has acquired and is holding
this Certificate in reliance on the underwriters’ exemption, and that it
understands that there are certain conditions to the availability of the
underwriters’ exemption, including that this Certificate must be rated, at the
time of purchase, not lower than “BBB-” (or its equivalent) by Fitch, S&P or
Xxxxx’x and the Certificate is so rated, that it is an accredited investor as
defined in Rule 501(a)(1) of Regulation D of the Securities Act of 1933, as
amended, and that it will obtain a representation from any transferee that
such
transferee is an accredited investor, or (C)(1) it is an insurance company,
(2)
the source of funds used to acquire or hold this Certificate or any interest
therein is an “insurance company general account,” as such term is defined in
Prohibited Transaction Class Exemption (“PTCE”)
95-60,
and (3) the conditions in Sections I and III of PTCE 95-60 have been
satisfied.
If
this
Certificate or any interest therein is acquired or held in violation of the
provisions of Section 5.02(c) of the Agreement, the next preceding permitted
beneficial owner will be treated as the beneficial owner of this Certificate
retroactive to the date of transfer to the purported beneficial owner. Any
purported beneficial owner whose acquisition or holding of any this Certificate
or any interest therein was effected in violation of the provisions of Section
5.02(c) of the Agreement shall indemnify and hold harmless the Depositor, the
Servicer, the Trustee and the Trust Fund from and against any and all
liabilities, claims, costs or expenses incurred by those parties as a result
of
that acquisition or holding.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No service charge
will be made for any such registration of transfer or exchange of Certificates,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any transfer
or
exchange of Certificates.
The
Depositor, the Servicer, the Trustee and any agent of the Depositor, the
Servicer or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and none of the Depositor,
the
Servicer, the Trustee nor any such agent shall be affected by notice to the
contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Trustee and required to be paid to them pursuant to the Agreement following
the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan and REO Property remaining in REMIC
I
and (ii) the purchase by the party designated in the Agreement at a price
determined as provided in the Agreement from REMIC I of all the Mortgage Loans
and all property acquired in respect of such Mortgage Loans. The Agreement
permits, but does not require, the party designated in the Agreement to purchase
from REMIC I all the Mortgage Loans and all property acquired in respect of
any
Mortgage Loan at a price determined as provided in the Agreement. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Loans at the time of purchase being less than 10% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor and
the
Trustee assumes no responsibility for their correctness.
Unless
the certificate of authentication hereon has been executed by the Trustee,
by
manual signature, this Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
May 24, 2006
|
XXXXX
FARGO BANK, N.A., as Trustee
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Officer
|
|||||||||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
|
XXXXX
FARGO BANK, N.A., as Trustee
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory
|
|||||||||||||
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
|
TEN
COM -
|
as
tenants in common
|
UNIF
GIFT MIN ACT -
|
Custodian
|
|
(Cust) (Minor)
|
|||
|
TEN
ENT -
|
as
tenants by the entireties
|
under
Uniform Gifts
|
|
|
to
Minors Act
|
|||
|
JT
TEN -
|
as
joint tenants with right if
|
||
|
survivorship
and not as
|
(State)
|
||
|
tenants
in common
|
Additional
abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
_________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset-Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I
(we)
further direct the Trustee to issue a new Certificate of a like Percentage
Interest and Class to the above named assignee and deliver such Certificate
to
the following address:
___________________________________________________________________________________________________________________________________________________________.
Dated:
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available
funds
|
to
|
,
|
|||||||
|
for
the account of
|
,
|
|||||||
|
account
number___________, or, if mailed by check, to
|
,
|
|||||||
|
Applicable
statements should be mailed to
|
||||||||
|
_____________________________________________________________________________
|
.
|
|||||||
|
This
information is provided by
|
,
|
|||||||
|
the
assignee named above, or
|
,
|
|||||||
|
as
its agent.
|
||||||||
EXHIBIT
A-3
FORM
OF
CLASS A-3 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
(THE “CODE”).
|
Series
2006-RFC1
Pass-Through
Rate: Variable
Cut-off
Date: May 1, 2006
Date
of Pooling and Servicing Agreement: May 1, 2006
First
Distribution Date: June 26, 2006
No.
1
|
Aggregate
Certificate Principal Balance of the Class A-3 Certificates as of
the
Closing Date: $87,509,000
Denomination:
$87,509,000
Servicer:
Homecomings Financial Network, Inc.
Trustee:
Xxxxx Fargo Bank, N.A.
Closing
Date: May 24, 2006
CUSIP:
14453E AC 6
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
ASSET-BACKED
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a Trust Fund (the “Trust Fund”)
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate and fixed-rate, interest-only and fully-amortizing, first lien
and second lien mortgage loans (the “Mortgage Loans”) formed and sold
by
STANWICH
ASSET ACCEPTANCE COMPANY, L.L.C.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STANWICH ASSET
ACCEPTANCE COMPANY, L.L.C., THE SERVICER, THE TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
This
certifies that Cede & Co. is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the aggregate
Certificate Principal Balance of the Class A-3 Certificates as of the Closing
Date) in that certain beneficial ownership interest evidenced by all the Class
A-3 Certificates in REMIC II created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Stanwich Asset
Acceptance Company, L.L.C. (hereinafter called the “Depositor,” which term
includes any successor entity under the Agreement), the Servicer and the
Trustee, a summary of certain of the pertinent provisions of which is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to the Person
in whose name this Certificate is registered on the Record Date, in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to the Holders of Class A-3
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will be
made
or caused to be made by the Trustee by wire transfer in immediately available
funds to the account of the Person entitled thereto if such Person shall have
so
notified the Trustee in writing at least five Business Days prior to the Record
Date immediately prior to such Distribution Date or otherwise by check mailed
by
first class mail to the address of the Person entitled thereto, as such name
and
address shall appear on the Certificate Register. Notwithstanding the above,
the
final distribution on this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency appointed by the Trustee
for that purpose as provided in the Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable with respect
to this Certificate on any Distribution Date shall equal a rate per annum equal
to the lesser of (i) the related Formula Rate for such Distribution Date and
(ii) the related Net WAC Pass-Through Rate for such Distribution
Date.
This
Certificate is one of a duly authorized issue of Certificates designated as
Asset-Backed Pass-Through Certificates of the Series specified on the face
hereof (herein called the “Certificates”) and representing a Percentage Interest
in the Class of Certificates specified on the face hereof equal to the
denomination specified on the face hereof divided by the aggregate Certificate
Principal Balance of the Class of Certificates specified on the face
hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Custodial Account and the Certificate Account may be made from time to time
for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of advances made, or certain expenses incurred, with respect
to
the Mortgage Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Servicer, the Trustee, and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 66% of the Voting
Rights. Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all future Holders of this Certificate
and
of any Certificate issued upon the transfer hereof or in exchange herefor or
in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices or
agencies appointed by the Trustee as provided in the Agreement, duly endorsed
by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trustee duly executed by,
the
Holder hereof or such Holder’s attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
Each
beneficial owner of this Certificate or any interest therein shall be deemed
to
have represented, by virtue of its acquisition or holding of such Certificate
or
any interest therein, that either (A) it is not an “employee benefit plan” as
defined in Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended (“ERISA”), that is subject to Title I of ERISA, any “plan” as defined
in Section 4975(e)(1) of the Internal Revenue Code of 1986, as amended (the
“Code”), that is subject to Section 4975 of the Code or any entity deemed to
hold plan assets of any of the foregoing, (B) it has acquired and is holding
this Certificate in reliance on the underwriters’ exemption, and that it
understands that there are certain conditions to the availability of the
underwriters’ exemption, including that this Certificate must be rated, at the
time of purchase, not lower than “BBB-” (or its equivalent) by Fitch, S&P or
Xxxxx’x and the Certificate is so rated, that it is an accredited investor as
defined in Rule 501(a)(1) of Regulation D of the Securities Act of 1933, as
amended, and that it will obtain a representation from any transferee that
such
transferee is an accredited investor, or (C)(1) it is an insurance company,
(2)
the source of funds used to acquire or hold this Certificate or any interest
therein is an “insurance company general account,” as such term is defined in
Prohibited Transaction Class Exemption (“PTCE”)
95-60,
and (3) the conditions in Sections I and III of PTCE 95-60 have been
satisfied.
If
this
Certificate or any interest therein is acquired or held in violation of the
provisions of Section 5.02(c) of the Agreement, the next preceding permitted
beneficial owner will be treated as the beneficial owner of this Certificate
retroactive to the date of transfer to the purported beneficial owner. Any
purported beneficial owner whose acquisition or holding of any this Certificate
or any interest therein was effected in violation of the provisions of Section
5.02(c) of the Agreement shall indemnify and hold harmless the Depositor, the
Servicer, the Trustee and the Trust Fund from and against any and all
liabilities, claims, costs or expenses incurred by those parties as a result
of
that acquisition or holding.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No service charge
will be made for any such registration of transfer or exchange of Certificates,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any transfer
or
exchange of Certificates.
The
Depositor, the Servicer, the Trustee and any agent of the Depositor, the
Servicer or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and none of the Depositor,
the
Servicer, the Trustee nor any such agent shall be affected by notice to the
contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Trustee and required to be paid to them pursuant to the Agreement following
the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan and REO Property remaining in REMIC
I
and (ii) the purchase by the party designated in the Agreement at a price
determined as provided in the Agreement from REMIC I of all the Mortgage Loans
and all property acquired in respect of such Mortgage Loans. The Agreement
permits, but does not require, the party designated in the Agreement to purchase
from REMIC I all the Mortgage Loans and all property acquired in respect of
any
Mortgage Loan at a price determined as provided in the Agreement. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Loans at the time of purchase being less than 10% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor and
the
Trustee assumes no responsibility for their correctness.
Unless
the certificate of authentication hereon has been executed by the Trustee,
by
manual signature, this Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
May 24, 2006
|
XXXXX
FARGO BANK, N.A., as Trustee
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Officer
|
|||||||||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
|
XXXXX
FARGO BANK, N.A., as Trustee
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory
|
|||||||||||||
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
|
TEN
COM -
|
as
tenants in common
|
UNIF
GIFT MIN ACT -
|
Custodian
|
|
(Cust) (Minor)
|
|||
|
TEN
ENT -
|
as
tenants by the entireties
|
under
Uniform Gifts
|
|
|
to
Minors Act
|
|||
|
JT
TEN -
|
as
joint tenants with right if
|
||
|
survivorship
and not as
|
(State)
|
||
|
tenants
in common
|
Additional
abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
_________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset-Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I
(we)
further direct the Trustee to issue a new Certificate of a like Percentage
Interest and Class to the above named assignee and deliver such Certificate
to
the following address:
___________________________________________________________________________________________________________________________________________________________.
Dated:
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available
funds
|
to
|
,
|
|||||||
|
for
the account of
|
,
|
|||||||
|
account
number___________, or, if mailed by check, to
|
,
|
|||||||
|
Applicable
statements should be mailed to
|
||||||||
|
_____________________________________________________________________________
|
.
|
|||||||
|
This
information is provided by
|
,
|
|||||||
|
the
assignee named above, or
|
,
|
|||||||
|
as
its agent.
|
||||||||
EXHIBIT
A-4
FORM
OF
CLASS A-4 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
(THE “CODE”).
|
Series
2006-RFC1
Pass-Through
Rate: Variable
Cut-off
Date: May 1, 2006
Date
of Pooling and Servicing Agreement: May 1, 2006
First
Distribution Date: June 26, 2006
No.
1
|
Aggregate
Certificate Principal Balance of the Class A-4 Certificates as of
the
Closing Date: $40,954,000
Denomination:
$40,954,000
Servicer:
Homecomings Financial Network, Inc.
Trustee:
Xxxxx Fargo Bank, N.A.
Closing
Date: May 24, 2006
CUSIP:
14453E AD 4
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE AS THE DENOMINATION OF THIS CERTIFICATE.
ASSET-BACKED
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a Trust Fund (the “Trust Fund”)
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate and fixed-rate, interest-only and fully-amortizing, first lien
and second lien mortgage loans (the “Mortgage Loans”) formed and sold
by
STANWICH
ASSET ACCEPTANCE COMPANY, L.L.C.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STANWICH ASSET
ACCEPTANCE COMPANY, L.L.C., THE SERVICER, THE TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
This
certifies that Cede & Co. is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the aggregate
Certificate Principal Balance of the Class A-4 Certificates as of the Closing
Date) in that certain beneficial ownership interest evidenced by all the Class
A-4 Certificates in REMIC II created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Stanwich Asset
Acceptance Company, L.L.C. (hereinafter called the “Depositor,” which term
includes any successor entity under the Agreement), the Servicer and the
Trustee, a summary of certain of the pertinent provisions of which is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to the Person
in whose name this Certificate is registered on the Record Date, in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to the Holders of Class A-4
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will be
made
or caused to be made by the Trustee by wire transfer in immediately available
funds to the account of the Person entitled thereto if such Person shall have
so
notified the Trustee in writing at least five Business Days prior to the Record
Date immediately prior to such Distribution Date or otherwise by check mailed
by
first class mail to the address of the Person entitled thereto, as such name
and
address shall appear on the Certificate Register. Notwithstanding the above,
the
final distribution on this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency appointed by the Trustee
for that purpose as provided in the Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable with respect
to this Certificate on any Distribution Date shall equal a rate per annum equal
to the lesser of (i) the related Formula Rate for such Distribution Date and
(ii) the related Net WAC Pass-Through Rate for such Distribution
Date.
This
Certificate is one of a duly authorized issue of Certificates designated as
Asset-Backed Pass-Through Certificates of the Series specified on the face
hereof (herein called the “Certificates”) and representing a Percentage Interest
in the Class of Certificates specified on the face hereof equal to the
denomination specified on the face hereof divided by the aggregate Certificate
Principal Balance of the Class of Certificates specified on the face
hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Custodial Account and the Certificate Account may be made from time to time
for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of advances made, or certain expenses incurred, with respect
to
the Mortgage Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Servicer, the Trustee, and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 66% of the Voting
Rights. Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all future Holders of this Certificate
and
of any Certificate issued upon the transfer hereof or in exchange herefor or
in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices or
agencies appointed by the Trustee as provided in the Agreement, duly endorsed
by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trustee duly executed by,
the
Holder hereof or such Holder’s attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
Each
beneficial owner of this Certificate or any interest therein shall be deemed
to
have represented, by virtue of its acquisition or holding of such Certificate
or
any interest therein, that either (A) it is not an “employee benefit plan” as
defined in Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended (“ERISA”), that is subject to Title I of ERISA, any “plan” as defined
in Section 4975(e)(1) of the Internal Revenue Code of 1986, as amended (the
“Code”), that is subject to Section 4975 of the Code or any entity deemed to
hold plan assets of any of the foregoing, (B) it has acquired and is holding
this Certificate in reliance on the underwriters’ exemption, and that it
understands that there are certain conditions to the availability of the
underwriters’ exemption, including that this Certificate must be rated, at the
time of purchase, not lower than “BBB-” (or its equivalent) by Fitch, S&P or
Xxxxx’x and the Certificate is so rated, that it is an accredited investor as
defined in Rule 501(a)(1) of Regulation D of the Securities Act of 1933, as
amended, and that it will obtain a representation from any transferee that
such
transferee is an accredited investor, or (C)(1) it is an insurance company,
(2)
the source of funds used to acquire or hold this Certificate or any interest
therein is an “insurance company general account,” as such term is defined in
Prohibited Transaction Class Exemption (“PTCE”)
95-60,
and (3) the conditions in Sections I and III of PTCE 95-60 have been
satisfied.
If
this
Certificate or any interest therein is acquired or held in violation of the
provisions of Section 5.02(c) of the Agreement, the next preceding permitted
beneficial owner will be treated as the beneficial owner of this Certificate
retroactive to the date of transfer to the purported beneficial owner. Any
purported beneficial owner whose acquisition or holding of any this Certificate
or any interest therein was effected in violation of the provisions of Section
5.02(c) of the Agreement shall indemnify and hold harmless the Depositor, the
Servicer, the Trustee and the Trust Fund from and against any and all
liabilities, claims, costs or expenses incurred by those parties as a result
of
that acquisition or holding.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No service charge
will be made for any such registration of transfer or exchange of Certificates,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any transfer
or
exchange of Certificates.
The
Depositor, the Servicer, the Trustee and any agent of the Depositor, the
Servicer or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and none of the Depositor,
the
Servicer, the Trustee nor any such agent shall be affected by notice to the
contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Trustee and required to be paid to them pursuant to the Agreement following
the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan and REO Property remaining in REMIC
I
and (ii) the purchase by the party designated in the Agreement at a price
determined as provided in the Agreement from REMIC I of all the Mortgage Loans
and all property acquired in respect of such Mortgage Loans. The Agreement
permits, but does not require, the party designated in the Agreement to purchase
from REMIC I all the Mortgage Loans and all property acquired in respect of
any
Mortgage Loan at a price determined as provided in the Agreement. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Loans at the time of purchase being less than 10% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor and
the
Trustee assumes no responsibility for their correctness.
Unless
the certificate of authentication hereon has been executed by the Trustee,
by
manual signature, this Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
May 24, 2006
|
XXXXX
FARGO BANK, N.A., as Trustee
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Officer
|
|||||||||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
|
XXXXX
FARGO BANK, N.A., as Trustee
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory
|
|||||||||||||
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
|
TEN
COM -
|
as
tenants in common
|
UNIF
GIFT MIN ACT -
|
Custodian
|
|
(Cust) (Minor)
|
|||
|
TEN
ENT -
|
as
tenants by the entireties
|
under
Uniform Gifts
|
|
|
to
Minors Act
|
|||
|
JT
TEN -
|
as
joint tenants with right if
|
||
|
survivorship
and not as
|
(State)
|
||
|
tenants
in common
|
Additional
abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
_________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset-Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I
(we)
further direct the Trustee to issue a new Certificate of a like Percentage
Interest and Class to the above named assignee and deliver such Certificate
to
the following address:
______________________________________________________________________________
_____________________________________________________________________________.
Dated:
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available
funds
|
to
|
,
|
|||||||
|
for
the account of
|
,
|
|||||||
|
account
number___________, or, if mailed by check, to
|
,
|
|||||||
|
Applicable
statements should be mailed to
|
||||||||
|
_____________________________________________________________________________
|
.
|
|||||||
|
This
information is provided by
|
,
|
|||||||
|
the
assignee named above, or
|
,
|
|||||||
|
as
its agent.
|
||||||||
EXHIBIT
A-5
FORM
OF
CLASS M-1 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
(THE “CODE”).
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES TO THE EXTENT DESCRIBED
IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
|
Series
2006-RFC1
Pass-Through
Rate: Variable
Cut-off
Date: May 1, 2006
Date
of Pooling and Servicing Agreement: May 1, 2006
First
Distribution Date: June 26, 2006
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-1 Certificates as of
the
Closing Date: $29,970,000
Denomination:
$29,970,000
Servicer:
Homecomings Financial Network, Inc.
Trustee:
Xxxxx Fargo Bank, N.A.
Closing
Date: May 24, 2006
CUSIP:
14453E AE 2
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
ASSET-BACKED
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a Trust Fund (the “Trust Fund”)
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate and fixed-rate, interest-only and fully-amortizing, first lien
and second lien mortgage loans (the “Mortgage Loans”) formed and sold
by
STANWICH
ASSET ACCEPTANCE COMPANY, L.L.C.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STANWICH ASSET
ACCEPTANCE COMPANY, L.L.C., THE SERVICER, THE TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
This
certifies that Cede & Co. is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the aggregate
Certificate Principal Balance of the Class M-1 Certificates as of the Closing
Date) in that certain beneficial ownership interest evidenced by all the Class
M-1 Certificates in REMIC II created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Stanwich Asset
Acceptance Company, L.L.C. (hereinafter called the “Depositor,” which term
includes any successor entity under the Agreement), the Servicer and the
Trustee, a summary of certain of the pertinent provisions of which is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to the Person
in whose name this Certificate is registered on the Record Date, in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to the Holders of Class M-1
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will be
made
or caused to be made by the Trustee by wire transfer in immediately available
funds to the account of the Person entitled thereto if such Person shall have
so
notified the Trustee in writing at least five Business Days prior to the Record
Date immediately prior to such Distribution Date or otherwise by check mailed
by
first class mail to the address of the Person entitled thereto, as such name
and
address shall appear on the Certificate Register. Notwithstanding the above,
the
final distribution on this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency appointed by the Trustee
for that purpose as provided in the Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable with respect
to this Certificate on any Distribution Date shall equal a rate per annum equal
to the lesser of (i) the related Formula Rate for such Distribution Date and
(ii) the related Net WAC Pass-Through Rate for such Distribution
Date.
This
Certificate is one of a duly authorized issue of Certificates designated as
Asset-Backed Pass-Through Certificates of the Series specified on the face
hereof (herein called the “Certificates”) and representing a Percentage Interest
in the Class of Certificates specified on the face hereof equal to the
denomination specified on the face hereof divided by the aggregate Certificate
Principal Balance of the Class of Certificates specified on the face
hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Custodial Account and the Certificate Account may be made from time to time
for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of advances made, or certain expenses incurred, with respect
to
the Mortgage Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Servicer, the Trustee and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 66% of the Voting
Rights. Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all future Holders of this Certificate
and
of any Certificate issued upon the transfer hereof or in exchange herefor or
in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices or
agencies appointed by the Trustee as provided in the Agreement, duly endorsed
by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trustee duly executed by,
the
Holder hereof or such Holder’s attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
Each
beneficial owner of this Certificate or any interest therein shall be deemed
to
have represented, by virtue of its acquisition or holding of such Certificate
or
any interest therein, that either (A) it is not an “employee benefit plan” as
defined in Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended (“ERISA”), that is subject to Title I of ERISA, any “plan” as defined
in Section 4975(e)(1) of the Internal Revenue Code of 1986, as amended (the
“Code”), that is subject to Section 4975 of the Code or any entity deemed to
hold plan assets of any of the foregoing, (B) it has acquired and is holding
this Certificate in reliance on the underwriters’ exemption, and that it
understands that there are certain conditions to the availability of the
underwriters’ exemption, including that this Certificate must be rated, at the
time of purchase, not lower than “BBB-” (or its equivalent) by Fitch, S&P or
Xxxxx’x and the Certificate is so rated, that it is an accredited investor as
defined in Rule 501(a)(1) of Regulation D of the Securities Act of 1933, as
amended, and that it will obtain a representation from any transferee that
such
transferee is an accredited investor, or (C)(1) it is an insurance company,
(2)
the source of funds used to acquire or hold this Certificate or any interest
therein is an “insurance company general account,” as such term is defined in
Prohibited Transaction Class Exemption (“PTCE”)
95-60,
and (3) the conditions in Sections I and III of PTCE 95-60 have been
satisfied.
If
this
Certificate or any interest therein is acquired or held in violation of the
provisions of Section 5.02(c) of the Agreement, the next preceding permitted
beneficial owner will be treated as the beneficial owner of this Certificate
retroactive to the date of transfer to the purported beneficial owner. Any
purported beneficial owner whose acquisition or holding of any this Certificate
or any interest therein was effected in violation of the provisions of Section
5.02(c) of the Agreement shall indemnify and hold harmless the Depositor, the
Servicer, the Trustee and the Trust Fund from and against any and all
liabilities, claims, costs or expenses incurred by those parties as a result
of
that acquisition or holding.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No service charge
will be made for any such registration of transfer or exchange of Certificates,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any transfer
or
exchange of Certificates.
The
Depositor, the Servicer, the Trustee and any agent of the Depositor, the
Servicer or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and none of the Depositor,
the
Servicer, the Trustee nor any such agent shall be affected by notice to the
contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Trustee and required to be paid to them pursuant to the Agreement following
the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan and REO Property remaining in REMIC
I
and (ii) the purchase by the party designated in the Agreement at a price
determined as provided in the Agreement from REMIC I of all the Mortgage Loans
and all property acquired in respect of such Mortgage Loans. The Agreement
permits, but does not require, the party designated in the Agreement to purchase
from REMIC I all the Mortgage Loans and all property acquired in respect of
any
Mortgage Loan at a price determined as provided in the Agreement. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Loans at the time of purchase being less than 10% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor and
the
Trustee assumes no responsibility for their correctness.
Unless
the certificate of authentication hereon has been executed by the Trustee,
by
manual signature, this Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
May 24, 2006
|
XXXXX
FARGO BANK, N.A., as Trustee
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Officer
|
|||||||||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
|
XXXXX
FARGO BANK, N.A., as Trustee
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory
|
|||||||||||||
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
|
TEN
COM -
|
as
tenants in common
|
UNIF
GIFT MIN ACT -
|
Custodian
|
|
(Cust) (Minor)
|
|||
|
TEN
ENT -
|
as
tenants by the entireties
|
under
Uniform Gifts
|
|
|
to
Minors Act
|
|||
|
JT
TEN -
|
as
joint tenants with right if
|
||
|
survivorship
and not as
|
(State)
|
||
|
tenants
in common
|
Additional
abbreviations may also be used though not in the above list.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
_________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset-Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I
(we)
further direct the Trustee to issue a new Certificate of a like Percentage
Interest and Class to the above named assignee and deliver such Certificate
to
the following address:
______________________________________________________________________________
_____________________________________________________________________________.
Dated:
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available
funds
|
to
|
,
|
|||||||
|
for
the account of
|
,
|
|||||||
|
account
number___________, or, if mailed by check, to
|
,
|
|||||||
|
Applicable
statements should be mailed to
|
||||||||
|
_____________________________________________________________________________
|
.
|
|||||||
|
This
information is provided by
|
,
|
|||||||
|
the
assignee named above, or
|
,
|
|||||||
|
as
its agent.
|
||||||||
EXHIBIT
A-6
FORM
OF
CLASS M-2 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
(THE “CODE”).
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES AND THE CLASS M-1
CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
|
Series
2006-RFC1
Pass-Through
Rate: Variable
Cut-off
Date: May 1, 2006
Date
of Pooling and Servicing Agreement: May 1, 2006
First
Distribution Date: June 26, 2006
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-2 Certificates as of
the
Closing Date: $28,048,000
Denomination:
$28,048,000
Servicer:
Homecomings Financial Network, Inc.
Trustee:
Xxxxx Fargo Bank, N.A.
Closing
Date: May 24, 2006
CUSIP:
14453E AF 9
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
ASSET-BACKED
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a Trust Fund (the “Trust Fund”)
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate and fixed-rate, interest-only and fully-amortizing, first lien
and second lien mortgage loans (the “Mortgage Loans”) formed and sold
by
STANWICH
ASSET ACCEPTANCE COMPANY, L.L.C.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STANWICH ASSET
ACCEPTANCE COMPANY, L.L.C., THE SERVICER, THE TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
This
certifies that Cede & Co. is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the aggregate
Certificate Principal Balance of the Class M-2 Certificates as of the Closing
Date) in that certain beneficial ownership interest evidenced by all the Class
M-2 Certificates in REMIC II created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Stanwich Asset
Acceptance Company, L.L.C. (hereinafter called the “Depositor,” which term
includes any successor entity under the Agreement), the Servicer and the
Trustee, a summary of certain of the pertinent provisions of which is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to the Person
in whose name this Certificate is registered on the Record Date, in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to the Holders of Class M-2
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will be
made
or caused to be made by the Trustee by wire transfer in immediately available
funds to the account of the Person entitled thereto if such Person shall have
so
notified the Trustee in writing at least five Business Days prior to the Record
Date immediately prior to such Distribution Date or otherwise by check mailed
by
first class mail to the address of the Person entitled thereto, as such name
and
address shall appear on the Certificate Register. Notwithstanding the above,
the
final distribution on this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency appointed by the Trustee
for that purpose as provided in the Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable with respect
to this Certificate on any Distribution Date shall equal a rate per annum equal
to the lesser of (i) the related Formula Rate for such Distribution Date and
(ii) the related Net WAC Pass-Through Rate for such Distribution
Date.
This
Certificate is one of a duly authorized issue of Certificates designated as
Asset-Backed Pass-Through Certificates of the Series specified on the face
hereof (herein called the “Certificates”) and representing a Percentage Interest
in the Class of Certificates specified on the face hereof equal to the
denomination specified on the face hereof divided by the aggregate Certificate
Principal Balance of the Class of Certificates specified on the face
hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Custodial Account and the Certificate Account may be made from time to time
for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of advances made, or certain expenses incurred, with respect
to
the Mortgage Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Servicer, the Trustee and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 66% of the Voting
Rights. Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all future Holders of this Certificate
and
of any Certificate issued upon the transfer hereof or in exchange herefor or
in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices or
agencies appointed by the Trustee as provided in the Agreement, duly endorsed
by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trustee duly executed by,
the
Holder hereof or such Holder’s attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
Each
beneficial owner of this Certificate or any interest therein shall be deemed
to
have represented, by virtue of its acquisition or holding of such Certificate
or
any interest therein, that either (A) it is not an “employee benefit plan” as
defined in Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended (“ERISA”), that is subject to Title I of ERISA, any “plan” as defined
in Section 4975(e)(1) of the Internal Revenue Code of 1986, as amended (the
“Code”), that is subject to Section 4975 of the Code or any entity deemed to
hold plan assets of any of the foregoing, (B) it has acquired and is holding
this Certificate in reliance on the underwriters’ exemption, and that it
understands that there are certain conditions to the availability of the
underwriters’ exemption, including that this Certificate must be rated, at the
time of purchase, not lower than “BBB-” (or its equivalent) by Fitch, S&P or
Xxxxx’x and the Certificate is so rated, that it is an accredited investor as
defined in Rule 501(a)(1) of Regulation D of the Securities Act of 1933, as
amended, and that it will obtain a representation from any transferee that
such
transferee is an accredited investor, or (C)(1) it is an insurance company,
(2)
the source of funds used to acquire or hold this Certificate or any interest
therein is an “insurance company general account,” as such term is defined in
Prohibited Transaction Class Exemption (“PTCE”)
95-60,
and (3) the conditions in Sections I and III of PTCE 95-60 have been
satisfied.
If
this
Certificate or any interest therein is acquired or held in violation of the
provisions of Section 5.02(c) of the Agreement, the next preceding permitted
beneficial owner will be treated as the beneficial owner of this Certificate
retroactive to the date of transfer to the purported beneficial owner. Any
purported beneficial owner whose acquisition or holding of any this Certificate
or any interest therein was effected in violation of the provisions of Section
5.02(c) of the Agreement shall indemnify and hold harmless the Depositor, the
Servicer, the Trustee and the Trust Fund from and against any and all
liabilities, claims, costs or expenses incurred by those parties as a result
of
that acquisition or holding.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No service charge
will be made for any such registration of transfer or exchange of Certificates,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any transfer
or
exchange of Certificates.
The
Depositor, the Servicer, the Trustee and any agent of the Depositor, the
Servicer or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and none of the Depositor,
the
Servicer, the Trustee nor any such agent shall be affected by notice to the
contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Trustee and required to be paid to them pursuant to the Agreement following
the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan and REO Property remaining in REMIC
I
and (ii) the purchase by the party designated in the Agreement at a price
determined as provided in the Agreement from REMIC I of all the Mortgage Loans
and all property acquired in respect of such Mortgage Loans. The Agreement
permits, but does not require, the party designated in the Agreement to purchase
from REMIC I all the Mortgage Loans and all property acquired in respect of
any
Mortgage Loan at a price determined as provided in the Agreement. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Loans at the time of purchase being less than 10% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor and
the
Trustee assumes no responsibility for their correctness.
Unless
the certificate of authentication hereon has been executed by the Trustee,
by
manual signature, this Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
May 24, 2006
|
XXXXX
FARGO BANK, N.A., as Trustee
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Officer
|
|||||||||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
|
XXXXX
FARGO BANK, N.A., as Trustee
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory
|
|||||||||||||
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
|
TEN
COM -
|
as
tenants in common
|
UNIF
GIFT MIN ACT -
|
Custodian
|
|
(Cust) (Minor)
|
|||
|
TEN
ENT -
|
as
tenants by the entireties
|
under
Uniform Gifts
|
|
|
to
Minors Act
|
|||
|
JT
TEN -
|
as
joint tenants with right if
|
||
|
survivorship
and not as
|
(State)
|
||
|
tenants
in common
|
Additional
abbreviations may also be used though not in the above list.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
|
|
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset-Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on
the
Certificate Register of the Trust Fund.
I
(we)
further direct the Trustee to issue a new Certificate of a like Percentage
Interest and Class to the above named assignee and deliver such Certificate
to
the following address:
Dated:
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available
funds
|
to
|
,
|
|||||||
|
for
the account of
|
,
|
|||||||
|
account
number___________, or, if mailed by check, to
|
,
|
|||||||
|
Applicable
statements should be mailed to
|
||||||||
|
_____________________________________________________________________________
|
.
|
|||||||
|
This
information is provided by
|
,
|
|||||||
|
the
assignee named above, or
|
,
|
|||||||
|
as
its agent.
|
||||||||
EXHIBIT
A-7
FORM
OF
CLASS M-3 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
(THE “CODE”).
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES, THE CLASS M-1
CERTIFICATES AND THE CLASS M-2 CERTIFICATES TO THE EXTENT DESCRIBED IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
|
Series
2006-RFC1
Pass-Through
Rate: Variable
Cut-off
Date: May 1, 2006
Date
of Pooling and Servicing Agreement: May 1, 2006
First
Distribution Date: June 26, 2006
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-3 Certificates as of
the
Closing Date: $16,522,000
Denomination:
$16,522,000
Servicer:
Homecomings Financial Network, Inc.
Trustee:
Xxxxx Fargo Bank, N.A.
Closing
Date: May 24, 2006
CUSIP:
14453E AG 7
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
ASSET-BACKED
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a Trust Fund (the “Trust Fund”)
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate and fixed-rate, interest-only and fully-amortizing, first lien
and second lien mortgage loans (the “Mortgage Loans”) formed and sold
by
STANWICH
ASSET ACCEPTANCE COMPANY, L.L.C.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STANWICH ASSET
ACCEPTANCE COMPANY, L.L.C., THE SERVICER, THE TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
This
certifies that Cede & Co. is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the aggregate
Certificate Principal Balance of the Class M-3 Certificates as of the Closing
Date) in that certain beneficial ownership interest evidenced by all the Class
M-3 Certificates in REMIC II created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Stanwich Asset
Acceptance Company, L.L.C. (hereinafter called the “Depositor,” which term
includes any successor entity under the Agreement), the Servicer and the
Trustee, a summary of certain of the pertinent provisions of which is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to the Person
in whose name this Certificate is registered on the Record Date, in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to the Holders of Class M-3
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will be
made
or caused to be made by the Trustee by wire transfer in immediately available
funds to the account of the Person entitled thereto if such Person shall have
so
notified the Trustee in writing at least five Business Days prior to the Record
Date immediately prior to such Distribution Date or otherwise by check mailed
by
first class mail to the address of the Person entitled thereto, as such name
and
address shall appear on the Certificate Register. Notwithstanding the above,
the
final distribution on this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency appointed by the Trustee
for that purpose as provided in the Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable with respect
to this Certificate on any Distribution Date shall equal a rate per annum equal
to the lesser of (i) the related Formula Rate for such Distribution Date and
(ii) the related Net WAC Pass-Through Rate for such Distribution
Date.
This
Certificate is one of a duly authorized issue of Certificates designated as
Asset-Backed Pass-Through Certificates of the Series specified on the face
hereof (herein called the “Certificates”) and representing a Percentage Interest
in the Class of Certificates specified on the face hereof equal to the
denomination specified on the face hereof divided by the aggregate Certificate
Principal Balance of the Class of Certificates specified on the face
hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Custodial Account and the Certificate Account may be made from time to time
for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of advances made, or certain expenses incurred, with respect
to
the Mortgage Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Servicer, the Trustee and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 66% of the Voting
Rights. Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all future Holders of this Certificate
and
of any Certificate issued upon the transfer hereof or in exchange herefor or
in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices or
agencies appointed by the Trustee as provided in the Agreement, duly endorsed
by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trustee duly executed by,
the
Holder hereof or such Holder’s attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
Each
beneficial owner of this Certificate or any interest therein shall be deemed
to
have represented, by virtue of its acquisition or holding of such Certificate
or
any interest therein, that either (A) it is not an “employee benefit plan” as
defined in Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended (“ERISA”), that is subject to Title I of ERISA, any “plan” as defined
in Section 4975(e)(1) of the Internal Revenue Code of 1986, as amended (the
“Code”), that is subject to Section 4975 of the Code or any entity deemed to
hold plan assets of any of the foregoing, (B) it has acquired and is holding
this Certificate in reliance on the underwriters’ exemption, and that it
understands that there are certain conditions to the availability of the
underwriters’ exemption, including that this Certificate must be rated, at the
time of purchase, not lower than “BBB-” (or its equivalent) by Fitch, S&P or
Xxxxx’x and the Certificate is so rated, that it is an accredited investor as
defined in Rule 501(a)(1) of Regulation D of the Securities Act of 1933, as
amended, and that it will obtain a representation from any transferee that
such
transferee is an accredited investor, or (C)(1) it is an insurance company,
(2)
the source of funds used to acquire or hold this Certificate or any interest
therein is an “insurance company general account,” as such term is defined in
Prohibited Transaction Class Exemption (“PTCE”)
95-60,
and (3) the conditions in Sections I and III of PTCE 95-60 have been
satisfied.
If
this
Certificate or any interest therein is acquired or held in violation of the
provisions of Section 5.02(c) of the Agreement, the next preceding permitted
beneficial owner will be treated as the beneficial owner of this Certificate
retroactive to the date of transfer to the purported beneficial owner. Any
purported beneficial owner whose acquisition or holding of any this Certificate
or any interest therein was effected in violation of the provisions of Section
5.02(c) of the Agreement shall indemnify and hold harmless the Depositor, the
Servicer, the Trustee and the Trust Fund from and against any and all
liabilities, claims, costs or expenses incurred by those parties as a result
of
that acquisition or holding.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No service charge
will be made for any such registration of transfer or exchange of Certificates,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any transfer
or
exchange of Certificates.
The
Depositor, the Servicer, the Trustee and any agent of the Depositor, the
Servicer or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and none of the Depositor,
the
Servicer, the Trustee nor any such agent shall be affected by notice to the
contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Trustee and required to be paid to them pursuant to the Agreement following
the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan and REO Property remaining in REMIC
I
and (ii) the purchase by the party designated in the Agreement at a price
determined as provided in the Agreement from REMIC I of all the Mortgage Loans
and all property acquired in respect of such Mortgage Loans. The Agreement
permits, but does not require, the party designated in the Agreement to purchase
from REMIC I all the Mortgage Loans and all property acquired in respect of
any
Mortgage Loan at a price determined as provided in the Agreement. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Loans at the time of purchase being less than 10% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor and
the
Trustee assumes no responsibility for their correctness.
Unless
the certificate of authentication hereon has been executed by the Trustee,
by
manual signature, this Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
May 24, 2006
|
XXXXX
FARGO BANK, N.A., as Trustee
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Officer
|
|||||||||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
|
XXXXX
FARGO BANK, N.A., as Trustee
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory
|
|||||||||||||
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
|
TEN
COM -
|
as
tenants in common
|
UNIF
GIFT MIN ACT -
|
Custodian
|
|
(Cust) (Minor)
|
|||
|
TEN
ENT -
|
as
tenants by the entireties
|
under
Uniform Gifts
|
|
|
to
Minors Act
|
|||
|
JT
TEN -
|
as
joint tenants with right if
|
||
|
survivorship
and not as
|
(State)
|
||
|
tenants
in common
|
Additional
abbreviations may also be used though not in the above list.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
|
|
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset-Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I
(we)
further direct the Trustee to issue a new Certificate of a like Percentage
Interest and Class to the above named assignee and deliver such Certificate
to
the following address:
Dated:
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available
funds
|
to
|
,
|
|||||||
|
for
the account of
|
,
|
|||||||
|
account
number___________, or, if mailed by check, to
|
,
|
|||||||
|
Applicable
statements should be mailed to
|
||||||||
|
|
.
|
|||||||
|
This
information is provided by
|
,
|
|||||||
|
the
assignee named above, or
|
,
|
|||||||
|
as
its agent.
|
||||||||
EXHIBIT
A-8
FORM
OF
CLASS M-4 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
(THE “CODE”).
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES, THE CLASS M-1
CERTIFICATES, THE CLASS M-2 CERTIFICATES AND THE CLASS M-3 CERTIFICATES TO
THE
EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
|
Series
2006-RFC1
Pass-Through
Rate: Variable
Cut-off
Date: May 1, 2006
Date
of Pooling and Servicing Agreement: May 1, 2006
First
Distribution Date: June 26, 2006
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-4 Certificates as of
the
Closing Date: $14,985,000
Denomination:
$14,985,000
Servicer:
Homecomings Financial Network, Inc.
Trustee:
Xxxxx Fargo Bank, N.A.
Closing
Date: May 24, 2006
CUSIP:
14453E AH 5
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
ASSET-BACKED
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a Trust Fund (the “Trust Fund”)
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate and fixed-rate, interest-only and fully-amortizing, first lien
and second lien mortgage loans (the “Mortgage Loans”) formed and sold
by
STANWICH
ASSET ACCEPTANCE COMPANY, L.L.C.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STANWICH ASSET
ACCEPTANCE COMPANY, L.L.C., THE SERVICER, THE TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
This
certifies that Cede & Co. is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the aggregate
Certificate Principal Balance of the Class M-4 Certificates as of the Closing
Date) in that certain beneficial ownership interest evidenced by all the Class
M-4 Certificates in REMIC II created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Stanwich Asset
Acceptance Company, L.L.C. (hereinafter called the “Depositor,” which term
includes any successor entity under the Agreement), the Servicer and the
Trustee, a summary of certain of the pertinent provisions of which is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to the Person
in whose name this Certificate is registered on the Record Date, in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to the Holders of Class M-4
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will be
made
or caused to be made by the Trustee by wire transfer in immediately available
funds to the account of the Person entitled thereto if such Person shall have
so
notified the Trustee in writing at least five Business Days prior to the Record
Date immediately prior to such Distribution Date or otherwise by check mailed
by
first class mail to the address of the Person entitled thereto, as such name
and
address shall appear on the Certificate Register. Notwithstanding the above,
the
final distribution on this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency appointed by the Trustee
for that purpose as provided in the Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable with respect
to this Certificate on any Distribution Date shall equal a rate per annum equal
to the lesser of (i) the related Formula Rate for such Distribution Date and
(ii) the related Net WAC Pass-Through Rate for such Distribution
Date.
This
Certificate is one of a duly authorized issue of Certificates designated as
Asset-Backed Pass-Through Certificates of the Series specified on the face
hereof (herein called the “Certificates”) and representing a Percentage Interest
in the Class of Certificates specified on the face hereof equal to the
denomination specified on the face hereof divided by the aggregate Certificate
Principal Balance of the Class of Certificates specified on the face
hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Custodial Account and the Certificate Account may be made from time to time
for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of advances made, or certain expenses incurred, with respect
to
the Mortgage Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Servicer, the Trustee and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 66% of the Voting
Rights. Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all future Holders of this Certificate
and
of any Certificate issued upon the transfer hereof or in exchange herefor or
in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices or
agencies appointed by the Trustee as provided in the Agreement, duly endorsed
by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trustee duly executed by,
the
Holder hereof or such Holder’s attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
Each
beneficial owner of this Certificate or any interest therein shall be deemed
to
have represented, by virtue of its acquisition or holding of such Certificate
or
any interest therein, that either (A) it is not an “employee benefit plan” as
defined in Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended (“ERISA”), that is subject to Title I of ERISA, any “plan” as defined
in Section 4975(e)(1) of the Internal Revenue Code of 1986, as amended (the
“Code”), that is subject to Section 4975 of the Code or any entity deemed to
hold plan assets of any of the foregoing, (B) it has acquired and is holding
this Certificate in reliance on the underwriters’ exemption, and that it
understands that there are certain conditions to the availability of the
underwriters’ exemption, including that this Certificate must be rated, at the
time of purchase, not lower than “BBB-” (or its equivalent) by Fitch, S&P or
Xxxxx’x and the Certificate is so rated, that it is an accredited investor as
defined in Rule 501(a)(1) of Regulation D of the Securities Act of 1933, as
amended, and that it will obtain a representation from any transferee that
such
transferee is an accredited investor, or (C)(1) it is an insurance company,
(2)
the source of funds used to acquire or hold this Certificate or any interest
therein is an “insurance company general account,” as such term is defined in
Prohibited Transaction Class Exemption (“PTCE”)
95-60,
and (3) the conditions in Sections I and III of PTCE 95-60 have been
satisfied.
If
this
Certificate or any interest therein is acquired or held in violation of the
provisions of Section 5.02(c) of the Agreement, the next preceding permitted
beneficial owner will be treated as the beneficial owner of this Certificate
retroactive to the date of transfer to the purported beneficial owner. Any
purported beneficial owner whose acquisition or holding of any this Certificate
or any interest therein was effected in violation of the provisions of Section
5.02(c) of the Agreement shall indemnify and hold harmless the Depositor, the
Servicer, the Trustee and the Trust Fund from and against any and all
liabilities, claims, costs or expenses incurred by those parties as a result
of
that acquisition or holding.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No service charge
will be made for any such registration of transfer or exchange of Certificates,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any transfer
or
exchange of Certificates.
The
Depositor, the Servicer, the Trustee and any agent of the Depositor, the
Servicer or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and none of the Depositor,
the
Servicer, the Trustee nor any such agent shall be affected by notice to the
contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Trustee and required to be paid to them pursuant to the Agreement following
the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan and REO Property remaining in REMIC
I
and (ii) the purchase by the party designated in the Agreement at a price
determined as provided in the Agreement from REMIC I of all the Mortgage Loans
and all property acquired in respect of such Mortgage Loans. The Agreement
permits, but does not require, the party designated in the Agreement to purchase
from REMIC I all the Mortgage Loans and all property acquired in respect of
any
Mortgage Loan at a price determined as provided in the Agreement. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Loans at the time of purchase being less than 10% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor and
the
Trustee assumes no responsibility for their correctness.
Unless
the certificate of authentication hereon has been executed by the Trustee,
by
manual signature, this Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
May 24, 2006
|
XXXXX
FARGO BANK, N.A., as Trustee
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Officer
|
|||||||||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
|
XXXXX
FARGO BANK, N.A., as Trustee
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory
|
|||||||||||||
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
|
TEN
COM -
|
as
tenants in common
|
UNIF
GIFT MIN ACT -
|
Custodian
|
|
(Cust) (Minor)
|
|||
|
TEN
ENT -
|
as
tenants by the entireties
|
under
Uniform Gifts
|
|
|
to
Minors Act
|
|||
|
JT
TEN -
|
as
joint tenants with right if
|
||
|
survivorship
and not as
|
(State)
|
||
|
tenants
in common
|
Additional
abbreviations may also be used though not in the above list.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
|
|
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset-Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on
the
Certificate Register of the Trust Fund.
I
(we)
further direct the Trustee to issue a new Certificate of a like Percentage
Interest and Class to the above named assignee and deliver such Certificate
to
the following address:
Dated:
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available
funds
|
to
|
,
|
|||||||
|
for
the account of
|
,
|
|||||||
|
account
number___________, or, if mailed by check, to
|
,
|
|||||||
|
Applicable
statements should be mailed to
|
||||||||
|
|
.
|
|||||||
|
This
information is provided by
|
,
|
|||||||
|
the
assignee named above, or
|
,
|
|||||||
|
as
its agent.
|
||||||||
EXHIBIT
A-9
FORM
OF
CLASS M-5 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
(THE “CODE”).
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES, THE CLASS M-1
CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES AND THE
CLASS M-4 CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
|
Series
2006-RFC1
Pass-Through
Rate: Variable
Cut-off
Date: May 1, 2006
Date
of Pooling and Servicing Agreement: May 1, 2006
First
Distribution Date: June 26, 2006
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-5 Certificates as of
the
Closing Date: $14,601,000
Denomination:
$14,601,000
Servicer:
Homecomings Financial Network, Inc.
Trustee:
Xxxxx Fargo Bank, N.A.
Closing
Date: May 24, 2006
CUSIP:
14453E AJ 1
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
ASSET-BACKED
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a Trust Fund (the “Trust Fund”)
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate and fixed-rate, interest-only and fully-amortizing, first lien
and second lien mortgage loans (the “Mortgage Loans”) formed and sold
by
STANWICH
ASSET ACCEPTANCE COMPANY, L.L.C.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STANWICH ASSET
ACCEPTANCE COMPANY, L.L.C., THE SERVICER, THE TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
This
certifies that Cede & Co. is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the aggregate
Certificate Principal Balance of the Class M-5 Certificates as of the Closing
Date) in that certain beneficial ownership interest evidenced by all the Class
M-5 Certificates in REMIC II created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Stanwich Asset
Acceptance Company, L.L.C. (hereinafter called the “Depositor,” which term
includes any successor entity under the Agreement), the Servicer and the
Trustee, a summary of certain of the pertinent provisions of which is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to the Person
in whose name this Certificate is registered on the Record Date, in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to the Holders of Class M-5
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will be
made
or caused to be made by the Trustee by wire transfer in immediately available
funds to the account of the Person entitled thereto if such Person shall have
so
notified the Trustee in writing at least five Business Days prior to the Record
Date immediately prior to such Distribution Date or otherwise by check mailed
by
first class mail to the address of the Person entitled thereto, as such name
and
address shall appear on the Certificate Register. Notwithstanding the above,
the
final distribution on this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency appointed by the Trustee
for that purpose as provided in the Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable with respect
to this Certificate on any Distribution Date shall equal a rate per annum equal
to the lesser of (i) the related Formula Rate for such Distribution Date and
(ii) the related Net WAC Pass-Through Rate for such Distribution
Date.
This
Certificate is one of a duly authorized issue of Certificates designated as
Asset-Backed Pass-Through Certificates of the Series specified on the face
hereof (herein called the “Certificates”) and representing a Percentage Interest
in the Class of Certificates specified on the face hereof equal to the
denomination specified on the face hereof divided by the aggregate Certificate
Principal Balance of the Class of Certificates specified on the face
hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Custodial Account and the Certificate Account may be made from time to time
for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of advances made, or certain expenses incurred, with respect
to
the Mortgage Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Servicer, the Trustee and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 66% of the Voting
Rights. Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all future Holders of this Certificate
and
of any Certificate issued upon the transfer hereof or in exchange herefor or
in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices or
agencies appointed by the Trustee as provided in the Agreement, duly endorsed
by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trustee duly executed by,
the
Holder hereof or such Holder’s attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
Each
beneficial owner of this Certificate or any interest therein shall be deemed
to
have represented, by virtue of its acquisition or holding of such Certificate
or
any interest therein, that either (A) it is not an “employee benefit plan” as
defined in Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended (“ERISA”), that is subject to Title I of ERISA, any “plan” as defined
in Section 4975(e)(1) of the Internal Revenue Code of 1986, as amended (the
“Code”), that is subject to Section 4975 of the Code or any entity deemed to
hold plan assets of any of the foregoing, (B) it has acquired and is holding
this Certificate in reliance on the underwriters’ exemption, and that it
understands that there are certain conditions to the availability of the
underwriters’ exemption, including that this Certificate must be rated, at the
time of purchase, not lower than “BBB-” (or its equivalent) by Fitch, S&P or
Xxxxx’x and the Certificate is so rated, that it is an accredited investor as
defined in Rule 501(a)(1) of Regulation D of the Securities Act of 1933, as
amended, and that it will obtain a representation from any transferee that
such
transferee is an accredited investor, or (C)(1) it is an insurance company,
(2)
the source of funds used to acquire or hold this Certificate or any interest
therein is an “insurance company general account,” as such term is defined in
Prohibited Transaction Class Exemption (“PTCE”)
95-60,
and (3) the conditions in Sections I and III of PTCE 95-60 have been
satisfied.
If
this
Certificate or any interest therein is acquired or held in violation of the
provisions of Section 5.02(c) of the Agreement, the next preceding permitted
beneficial owner will be treated as the beneficial owner of this Certificate
retroactive to the date of transfer to the purported beneficial owner. Any
purported beneficial owner whose acquisition or holding of any this Certificate
or any interest therein was effected in violation of the provisions of Section
5.02(c) of the Agreement shall indemnify and hold harmless the Depositor, the
Servicer, the Trustee and the Trust Fund from and against any and all
liabilities, claims, costs or expenses incurred by those parties as a result
of
that acquisition or holding.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No service charge
will be made for any such registration of transfer or exchange of Certificates,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any transfer
or
exchange of Certificates.
The
Depositor, the Servicer, the Trustee and any agent of the Depositor, the
Servicer or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and none of the Depositor,
the
Servicer, the Trustee nor any such agent shall be affected by notice to the
contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Trustee and required to be paid to them pursuant to the Agreement following
the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan and REO Property remaining in REMIC
I
and (ii) the purchase by the party designated in the Agreement at a price
determined as provided in the Agreement from REMIC I of all the Mortgage Loans
and all property acquired in respect of such Mortgage Loans. The Agreement
permits, but does not require, the party designated in the Agreement to purchase
from REMIC I all the Mortgage Loans and all property acquired in respect of
any
Mortgage Loan at a price determined as provided in the Agreement. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Loans at the time of purchase being less than 10% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor and
the
Trustee assumes no responsibility for their correctness.
Unless
the certificate of authentication hereon has been executed by the Trustee,
by
manual signature, this Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
May 24, 2006
|
XXXXX
FARGO BANK, N.A., as Trustee
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Officer
|
|||||||||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
|
XXXXX
FARGO BANK, N.A., as Trustee
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory
|
|||||||||||||
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
|
TEN
COM -
|
as
tenants in common
|
UNIF
GIFT MIN ACT -
|
Custodian
|
|
(Cust) (Minor)
|
|||
|
TEN
ENT -
|
as
tenants by the entireties
|
under
Uniform Gifts
|
|
|
to
Minors Act
|
|||
|
JT
TEN -
|
as
joint tenants with right if
|
||
|
survivorship
and not as
|
(State)
|
||
|
tenants
in common
|
Additional
abbreviations may also be used though not in the above list.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
|
|
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset-Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on
the
Certificate Register of the Trust Fund.
I
(we)
further direct the Trustee to issue a new Certificate of a like Percentage
Interest and Class to the above named assignee and deliver such Certificate
to
the following address:
Dated:
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available
funds
|
to
|
,
|
|||||||
|
for
the account of
|
,
|
|||||||
|
account
number___________, or, if mailed by check, to
|
,
|
|||||||
|
Applicable
statements should be mailed to
|
||||||||
|
|
.
|
|||||||
|
This
information is provided by
|
,
|
|||||||
|
the
assignee named above, or
|
,
|
|||||||
|
as
its agent.
|
||||||||
EXHIBIT
A-10
FORM
OF
CLASS M-6 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
(THE “CODE”).
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES, THE CLASS M-1
CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES, THE CLASS
M-4 CERTIFICATES AND THE CLASS M-5 CERTIFICATES TO THE EXTENT DESCRIBED IN
THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
|
Series
2006-RFC1
Pass-Through
Rate: Variable
Cut-off
Date: May 1, 2006
Date
of Pooling and Servicing Agreement: May 1, 2006
First
Distribution Date: June 26, 2006
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-6 Certificates as of
the
Closing Date: $12,679,000
Denomination:
$12,679,000
Servicer:
Homecomings Financial Network, Inc.
Trustee:
Xxxxx Fargo Bank, N.A.
Closing
Date: May 24, 2006
CUSIP:
14453E AK 8
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
ASSET-BACKED
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a Trust Fund (the “Trust Fund”)
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate and fixed-rate, interest-only and fully-amortizing, first lien
and second lien mortgage loans (the “Mortgage Loans”) formed and sold
by
STANWICH
ASSET ACCEPTANCE COMPANY, L.L.C.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STANWICH ASSET
ACCEPTANCE COMPANY, L.L.C., THE SERVICER, THE TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
This
certifies that Cede & Co. is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the aggregate
Certificate Principal Balance of the Class M-6 Certificates as of the Closing
Date) in that certain beneficial ownership interest evidenced by all the Class
M-6 Certificates in REMIC II created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Stanwich Asset
Acceptance Company, L.L.C. (hereinafter called the “Depositor,” which term
includes any successor entity under the Agreement), the Servicer and the
Trustee, a summary of certain of the pertinent provisions of which is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to the Person
in whose name this Certificate is registered on the Record Date, in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to the Holders of Class M-6
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will be
made
or caused to be made by the Trustee by wire transfer in immediately available
funds to the account of the Person entitled thereto if such Person shall have
so
notified the Trustee in writing at least five Business Days prior to the Record
Date immediately prior to such Distribution Date or otherwise by check mailed
by
first class mail to the address of the Person entitled thereto, as such name
and
address shall appear on the Certificate Register. Notwithstanding the above,
the
final distribution on this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency appointed by the Trustee
for that purpose as provided in the Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable with respect
to this Certificate on any Distribution Date shall equal a rate per annum equal
to the lesser of (i) the related Formula Rate for such Distribution Date and
(ii) the related Net WAC Pass-Through Rate for such Distribution
Date.
This
Certificate is one of a duly authorized issue of Certificates designated as
Asset-Backed Pass-Through Certificates of the Series specified on the face
hereof (herein called the “Certificates”) and representing a Percentage Interest
in the Class of Certificates specified on the face hereof equal to the
denomination specified on the face hereof divided by the aggregate Certificate
Principal Balance of the Class of Certificates specified on the face
hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Custodial Account and the Certificate Account may be made from time to time
for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of advances made, or certain expenses incurred, with respect
to
the Mortgage Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Servicer, the Trustee and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 66% of the Voting
Rights. Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all future Holders of this Certificate
and
of any Certificate issued upon the transfer hereof or in exchange herefor or
in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices or
agencies appointed by the Trustee as provided in the Agreement, duly endorsed
by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trustee duly executed by,
the
Holder hereof or such Holder’s attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
Each
beneficial owner of this Certificate or any interest therein shall be deemed
to
have represented, by virtue of its acquisition or holding of such Certificate
or
any interest therein, that either (A) it is not an “employee benefit plan” as
defined in Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended (“ERISA”), that is subject to Title I of ERISA, any “plan” as defined
in Section 4975(e)(1) of the Internal Revenue Code of 1986, as amended (the
“Code”), that is subject to Section 4975 of the Code or any entity deemed to
hold plan assets of any of the foregoing, (B) it has acquired and is holding
this Certificate in reliance on the underwriters’ exemption, and that it
understands that there are certain conditions to the availability of the
underwriters’ exemption, including that this Certificate must be rated, at the
time of purchase, not lower than “BBB-” (or its equivalent) by Fitch, S&P or
Xxxxx’x and the Certificate is so rated, that it is an accredited investor as
defined in Rule 501(a)(1) of Regulation D of the Securities Act of 1933, as
amended, and that it will obtain a representation from any transferee that
such
transferee is an accredited investor, or (C)(1) it is an insurance company,
(2)
the source of funds used to acquire or hold this Certificate or any interest
therein is an “insurance company general account,” as such term is defined in
Prohibited Transaction Class Exemption (“PTCE”)
95-60,
and (3) the conditions in Sections I and III of PTCE 95-60 have been
satisfied.
If
this
Certificate or any interest therein is acquired or held in violation of the
provisions of Section 5.02(c) of the Agreement, the next preceding permitted
beneficial owner will be treated as the beneficial owner of this Certificate
retroactive to the date of transfer to the purported beneficial owner. Any
purported beneficial owner whose acquisition or holding of any this Certificate
or any interest therein was effected in violation of the provisions of Section
5.02(c) of the Agreement shall indemnify and hold harmless the Depositor, the
Servicer, the Trustee and the Trust Fund from and against any and all
liabilities, claims, costs or expenses incurred by those parties as a result
of
that acquisition or holding.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No service charge
will be made for any such registration of transfer or exchange of Certificates,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any transfer
or
exchange of Certificates.
The
Depositor, the Servicer, the Trustee and any agent of the Depositor, the
Servicer or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and none of the Depositor,
the
Servicer, the Trustee nor any such agent shall be affected by notice to the
contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Trustee and required to be paid to them pursuant to the Agreement following
the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan and REO Property remaining in REMIC
I
and (ii) the purchase by the party designated in the Agreement at a price
determined as provided in the Agreement from REMIC I of all the Mortgage Loans
and all property acquired in respect of such Mortgage Loans. The Agreement
permits, but does not require, the party designated in the Agreement to purchase
from REMIC I all the Mortgage Loans and all property acquired in respect of
any
Mortgage Loan at a price determined as provided in the Agreement. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Loans at the time of purchase being less than 10% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor and
the
Trustee assumes no responsibility for their correctness.
Unless
the certificate of authentication hereon has been executed by the Trustee,
by
manual signature, this Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
May 24, 2006
|
XXXXX
FARGO BANK, N.A., as Trustee
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Officer
|
|||||||||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
|
XXXXX
FARGO BANK, N.A., as Trustee
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory
|
|||||||||||||
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
|
TEN
COM -
|
as
tenants in common
|
UNIF
GIFT MIN ACT -
|
Custodian
|
|
(Cust) (Minor)
|
|||
|
TEN
ENT -
|
as
tenants by the entireties
|
under
Uniform Gifts
|
|
|
to
Minors Act
|
|||
|
JT
TEN -
|
as
joint tenants with right if
|
||
|
survivorship
and not as
|
(State)
|
||
|
tenants
in common
|
Additional
abbreviations may also be used though not in the above list.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
|
|
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset-Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on
the
Certificate Register of the Trust Fund.
I
(we)
further direct the Trustee to issue a new Certificate of a like Percentage
Interest and Class to the above named assignee and deliver such Certificate
to
the following address:
Dated:
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available
funds
|
to
|
,
|
|||||||
|
for
the account of
|
,
|
|||||||
|
account
number___________, or, if mailed by check, to
|
,
|
|||||||
|
Applicable
statements should be mailed to
|
||||||||
|
|
.
|
|||||||
|
This
information is provided by
|
,
|
|||||||
|
the
assignee named above, or
|
,
|
|||||||
|
as
its agent.
|
||||||||
EXHIBIT
A-11
FORM
OF
CLASS M-7 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
(THE “CODE”).
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES, THE CLASS M-1
CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES, THE CLASS
M-4 CERTIFICATES, THE CLASS M-5 CERTIFICATES AND THE M-6 CERTIFICATES TO THE
EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
|
Series
2006-RFC1
Pass-Through
Rate: Variable
Cut-off
Date: May 1, 2006
Date
of Pooling and Servicing Agreement: May 1, 2006
First
Distribution Date: June 26, 2006
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-7 Certificates as of
the
Closing Date: $12,295,000
Denomination:
$12,295,000
Servicer:
Homecomings Financial Network, Inc.
Trustee:
Xxxxx Fargo Bank, N.A.
Closing
Date: May 24, 2006
CUSIP:
14453E AL 6
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
ASSET-BACKED
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a Trust Fund (the “Trust Fund”)
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate and fixed-rate, interest-only and fully-amortizing, first lien
and second lien mortgage loans (the “Mortgage Loans”) formed and sold
by
STANWICH
ASSET ACCEPTANCE COMPANY, L.L.C.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STANWICH ASSET
ACCEPTANCE COMPANY, L.L.C., THE SERVICER, THE TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
This
certifies that Cede & Co. is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the aggregate
Certificate Principal Balance of the Class M-7 Certificates as of the Closing
Date) in that certain beneficial ownership interest evidenced by all the Class
M-7 Certificates in REMIC II created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Stanwich Asset
Acceptance Company, L.L.C. (hereinafter called the “Depositor,” which term
includes any successor entity under the Agreement), the Servicer and the
Trustee, a summary of certain of the pertinent provisions of which is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to the Person
in whose name this Certificate is registered on the Record Date, in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to the Holders of Class M-7
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will be
made
or caused to be made by the Trustee by wire transfer in immediately available
funds to the account of the Person entitled thereto if such Person shall have
so
notified the Trustee in writing at least five Business Days prior to the Record
Date immediately prior to such Distribution Date or otherwise by check mailed
by
first class mail to the address of the Person entitled thereto, as such name
and
address shall appear on the Certificate Register. Notwithstanding the above,
the
final distribution on this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency appointed by the Trustee
for that purpose as provided in the Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable with respect
to this Certificate on any Distribution Date shall equal a rate per annum equal
to the lesser of (i) the related Formula Rate for such Distribution Date and
(ii) the related Net WAC Pass-Through Rate for such Distribution
Date.
This
Certificate is one of a duly authorized issue of Certificates designated as
Asset-Backed Pass-Through Certificates of the Series specified on the face
hereof (herein called the “Certificates”) and representing a Percentage Interest
in the Class of Certificates specified on the face hereof equal to the
denomination specified on the face hereof divided by the aggregate Certificate
Principal Balance of the Class of Certificates specified on the face
hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Custodial Account and the Certificate Account may be made from time to time
for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of advances made, or certain expenses incurred, with respect
to
the Mortgage Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Servicer, the Trustee and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 66% of the Voting
Rights. Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all future Holders of this Certificate
and
of any Certificate issued upon the transfer hereof or in exchange herefor or
in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices or
agencies appointed by the Trustee as provided in the Agreement, duly endorsed
by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trustee duly executed by,
the
Holder hereof or such Holder’s attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
Each
beneficial owner of this Certificate or any interest therein shall be deemed
to
have represented, by virtue of its acquisition or holding of such Certificate
or
any interest therein, that either (A) it is not an “employee benefit plan” as
defined in Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended (“ERISA”), that is subject to Title I of ERISA, any “plan” as defined
in Section 4975(e)(1) of the Internal Revenue Code of 1986, as amended (the
“Code”), that is subject to Section 4975 of the Code or any entity deemed to
hold plan assets of any of the foregoing, (B) it has acquired and is holding
this Certificate in reliance on the underwriters’ exemption, and that it
understands that there are certain conditions to the availability of the
underwriters’ exemption, including that this Certificate must be rated, at the
time of purchase, not lower than “BBB-” (or its equivalent) by Fitch, S&P or
Xxxxx’x and the Certificate is so rated, that it is an accredited investor as
defined in Rule 501(a)(1) of Regulation D of the Securities Act of 1933, as
amended, and that it will obtain a representation from any transferee that
such
transferee is an accredited investor, or (C)(1) it is an insurance company,
(2)
the source of funds used to acquire or hold this Certificate or any interest
therein is an “insurance company general account,” as such term is defined in
Prohibited Transaction Class Exemption (“PTCE”)
95-60,
and (3) the conditions in Sections I and III of PTCE 95-60 have been
satisfied.
If
this
Certificate or any interest therein is acquired or held in violation of the
provisions of Section 5.02(c) of the Agreement, the next preceding permitted
beneficial owner will be treated as the beneficial owner of this Certificate
retroactive to the date of transfer to the purported beneficial owner. Any
purported beneficial owner whose acquisition or holding of any this Certificate
or any interest therein was effected in violation of the provisions of Section
5.02(c) of the Agreement shall indemnify and hold harmless the Depositor, the
Servicer, the Trustee and the Trust Fund from and against any and all
liabilities, claims, costs or expenses incurred by those parties as a result
of
that acquisition or holding.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No service charge
will be made for any such registration of transfer or exchange of Certificates,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any transfer
or
exchange of Certificates.
The
Depositor, the Servicer, the Trustee and any agent of the Depositor, the
Servicer or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and none of the Depositor,
the
Servicer, the Trustee nor any such agent shall be affected by notice to the
contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Trustee and required to be paid to them pursuant to the Agreement following
the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan and REO Property remaining in REMIC
I
and (ii) the purchase by the party designated in the Agreement at a price
determined as provided in the Agreement from REMIC I of all the Mortgage Loans
and all property acquired in respect of such Mortgage Loans. The Agreement
permits, but does not require, the party designated in the Agreement to purchase
from REMIC I all the Mortgage Loans and all property acquired in respect of
any
Mortgage Loan at a price determined as provided in the Agreement. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Loans at the time of purchase being less than 10% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor and
the
Trustee assumes no responsibility for their correctness.
Unless
the certificate of authentication hereon has been executed by the Trustee,
by
manual signature, this Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
May 24, 2006
|
XXXXX
FARGO BANK, N.A., as Trustee
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Officer
|
|||||||||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
|
XXXXX
FARGO BANK, N.A., as Trustee
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory
|
|||||||||||||
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
|
TEN
COM -
|
as
tenants in common
|
UNIF
GIFT MIN ACT -
|
Custodian
|
|
(Cust) (Minor)
|
|||
|
TEN
ENT -
|
as
tenants by the entireties
|
under
Uniform Gifts
|
|
|
to
Minors Act
|
|||
|
JT
TEN -
|
as
joint tenants with right if
|
||
|
survivorship
and not as
|
(State)
|
||
|
tenants
in common
|
Additional
abbreviations may also be used though not in the above list.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
|
|
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset-Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on
the
Certificate Register of the Trust Fund.
I
(we)
further direct the Trustee to issue a new Certificate of a like Percentage
Interest and Class to the above named assignee and deliver such Certificate
to
the following address:
Dated:
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available
funds
|
to
|
,
|
|||||||
|
for
the account of
|
,
|
|||||||
|
account
number___________, or, if mailed by check, to
|
,
|
|||||||
|
Applicable
statements should be mailed to
|
||||||||
|
|
.
|
|||||||
|
This
information is provided by
|
,
|
|||||||
|
the
assignee named above, or
|
,
|
|||||||
|
as
its agent.
|
||||||||
EXHIBIT
A-12
FORM
OF
CLASS M-8 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
(THE “CODE”).
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES, THE CLASS M-1
CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES, THE CLASS
M-4 CERTIFICATES, THE CLASS M-5 CERTIFICATES, THE CLASS M-6 CERTIFICATES AND
THE
CLASS M-7 CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
|
Series
2006-RFC1
Pass-Through
Rate: Variable
Cut-off
Date: May 1, 2006
Date
of Pooling and Servicing Agreement: May 1, 2006
First
Distribution Date: June 26, 2006
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-8 Certificates as of
the
Closing Date: $10,758,000
Denomination:
$10,758,000
Servicer:
Homecomings Financial Network, Inc.
Trustee:
Xxxxx Fargo Bank, N.A.
Closing
Date: May 24, 2006
CUSIP:
14453E AM 4
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
ASSET-BACKED
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a Trust Fund (the “Trust Fund”)
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate and fixed-rate, interest-only and fully-amortizing, first lien
and second lien mortgage loans (the “Mortgage Loans”) formed and sold
by
STANWICH
ASSET ACCEPTANCE COMPANY, L.L.C.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STANWICH ASSET
ACCEPTANCE COMPANY, L.L.C., THE SERVICER, THE TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
This
certifies that Cede & Co. is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the aggregate
Certificate Principal Balance of the Class M-8 Certificates as of the Closing
Date) in that certain beneficial ownership interest evidenced by all the Class
M-8 Certificates in REMIC II created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Stanwich Asset
Acceptance Company, L.L.C. (hereinafter called the “Depositor,” which term
includes any successor entity under the Agreement), the Servicer and the
Trustee, a summary of certain of the pertinent provisions of which is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to the Person
in whose name this Certificate is registered on the Record Date, in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to the Holders of Class M-8
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will be
made
or caused to be made by the Trustee by wire transfer in immediately available
funds to the account of the Person entitled thereto if such Person shall have
so
notified the Trustee in writing at least five Business Days prior to the Record
Date immediately prior to such Distribution Date or otherwise by check mailed
by
first class mail to the address of the Person entitled thereto, as such name
and
address shall appear on the Certificate Register. Notwithstanding the above,
the
final distribution on this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency appointed by the Trustee
for that purpose as provided in the Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable with respect
to this Certificate on any Distribution Date shall equal a rate per annum equal
to the lesser of (i) the related Formula Rate for such Distribution Date and
(ii) the related Net WAC Pass-Through Rate for such Distribution
Date.
This
Certificate is one of a duly authorized issue of Certificates designated as
Asset-Backed Pass-Through Certificates of the Series specified on the face
hereof (herein called the “Certificates”) and representing a Percentage Interest
in the Class of Certificates specified on the face hereof equal to the
denomination specified on the face hereof divided by the aggregate Certificate
Principal Balance of the Class of Certificates specified on the face
hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Custodial Account and the Certificate Account may be made from time to time
for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of advances made, or certain expenses incurred, with respect
to
the Mortgage Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Servicer, the Trustee and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 66% of the Voting
Rights. Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all future Holders of this Certificate
and
of any Certificate issued upon the transfer hereof or in exchange herefor or
in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices or
agencies appointed by the Trustee as provided in the Agreement, duly endorsed
by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trustee duly executed by,
the
Holder hereof or such Holder’s attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
Each
beneficial owner of this Certificate or any interest therein shall be deemed
to
have represented, by virtue of its acquisition or holding of such Certificate
or
any interest therein, that either (A) it is not an “employee benefit plan” as
defined in Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended (“ERISA”), that is subject to Title I of ERISA, any “plan” as defined
in Section 4975(e)(1) of the Internal Revenue Code of 1986, as amended (the
“Code”), that is subject to Section 4975 of the Code or any entity deemed to
hold plan assets of any of the foregoing, (B) it has acquired and is holding
this Certificate in reliance on the underwriters’ exemption, and that it
understands that there are certain conditions to the availability of the
underwriters’ exemption, including that this Certificate must be rated, at the
time of purchase, not lower than “BBB-” (or its equivalent) by Fitch, S&P or
Xxxxx’x and the Certificate is so rated, that it is an accredited investor as
defined in Rule 501(a)(1) of Regulation D of the Securities Act of 1933, as
amended, and that it will obtain a representation from any transferee that
such
transferee is an accredited investor, or (C)(1) it is an insurance company,
(2)
the source of funds used to acquire or hold this Certificate or any interest
therein is an “insurance company general account,” as such term is defined in
Prohibited Transaction Class Exemption (“PTCE”)
95-60,
and (3) the conditions in Sections I and III of PTCE 95-60 have been
satisfied.
If
this
Certificate or any interest therein is acquired or held in violation of the
provisions of Section 5.02(c) of the Agreement, the next preceding permitted
beneficial owner will be treated as the beneficial owner of this Certificate
retroactive to the date of transfer to the purported beneficial owner. Any
purported beneficial owner whose acquisition or holding of any this Certificate
or any interest therein was effected in violation of the provisions of Section
5.02(c) of the Agreement shall indemnify and hold harmless the Depositor, the
Servicer, the Trustee and the Trust Fund from and against any and all
liabilities, claims, costs or expenses incurred by those parties as a result
of
that acquisition or holding.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No service charge
will be made for any such registration of transfer or exchange of Certificates,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any transfer
or
exchange of Certificates.
The
Depositor, the Servicer, the Trustee and any agent of the Depositor, the
Servicer or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and none of the Depositor,
the
Servicer, the Trustee nor any such agent shall be affected by notice to the
contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Trustee and required to be paid to them pursuant to the Agreement following
the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan and REO Property remaining in REMIC
I
and (ii) the purchase by the party designated in the Agreement at a price
determined as provided in the Agreement from REMIC I of all the Mortgage Loans
and all property acquired in respect of such Mortgage Loans. The Agreement
permits, but does not require, the party designated in the Agreement to purchase
from REMIC I all the Mortgage Loans and all property acquired in respect of
any
Mortgage Loan at a price determined as provided in the Agreement. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Loans at the time of purchase being less than 10% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor and
the
Trustee assumes no responsibility for their correctness.
Unless
the certificate of authentication hereon has been executed by the Trustee,
by
manual signature, this Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
May 24, 2006
|
XXXXX
FARGO BANK, N.A., as Trustee
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Officer
|
|||||||||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
|
XXXXX
FARGO BANK, N.A., as Trustee
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory
|
|||||||||||||
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
|
TEN
COM -
|
as
tenants in common
|
UNIF
GIFT MIN ACT -
|
Custodian
|
|
(Cust) (Minor)
|
|||
|
TEN
ENT -
|
as
tenants by the entireties
|
under
Uniform Gifts
|
|
|
to
Minors Act
|
|||
|
JT
TEN -
|
as
joint tenants with right if
|
||
|
survivorship
and not as
|
(State)
|
||
|
tenants
in common
|
Additional
abbreviations may also be used though not in the above list.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
|
|
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset-Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on the
Certificate Register of the Trust Fund.
I
(we)
further direct the Trustee to issue a new Certificate of a like Percentage
Interest and Class to the above named assignee and deliver such Certificate
to
the following address:
Dated:
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available
funds
|
to
|
,
|
|||||||
|
for
the account of
|
,
|
|||||||
|
account
number___________, or, if mailed by check, to
|
,
|
|||||||
|
Applicable
statements should be mailed to
|
||||||||
|
|
.
|
|||||||
|
This
information is provided by
|
,
|
|||||||
|
the
assignee named above, or
|
,
|
|||||||
|
as
its agent.
|
||||||||
EXHIBIT
A-13
FORM
OF
CLASS M-9 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
(THE “CODE”).
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES, THE CLASS M-1
CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES, THE CLASS
M-4 CERTIFICATES, THE CLASS M-5 CERTIFICATES, THE CLASS M-6 CERTIFICATES, THE
CLASS M-7 CERTIFICATES AND CLASS M-8 CERTIFICATES TO THE EXTENT DESCRIBED IN
THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
|
Series
2006-RFC1
Pass-Through
Rate: Variable
Cut-off
Date: May 1, 2006
Date
of Pooling and Servicing Agreement: May 1, 2006
First
Distribution Date: June 26, 2006
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-9 Certificates as of
the
Closing Date: $7,685,000
Denomination:
$7,685,000
Servicer:
Homecomings Financial Network, Inc.
Trustee:
Xxxxx Fargo Bank, N.A.
Closing
Date: May 24, 2006
CUSIP:
14453E AN 2
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
ASSET-BACKED
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a Trust Fund (the “Trust Fund”)
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate and fixed-rate, interest-only and fully-amortizing, first lien
and second lien mortgage loans (the “Mortgage Loans”) formed and sold
by
STANWICH
ASSET ACCEPTANCE COMPANY, L.L.C.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STANWICH ASSET
ACCEPTANCE COMPANY, L.L.C., THE SERVICER, THE TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
This
certifies that Cede & Co. is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the aggregate
Certificate Principal Balance of the Class M-9 Certificates as of the Closing
Date) in that certain beneficial ownership interest evidenced by all the Class
M-9 Certificates in REMIC II created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Stanwich Asset
Acceptance Company, L.L.C. (hereinafter called the “Depositor,” which term
includes any successor entity under the Agreement), the Servicer and the
Trustee, a summary of certain of the pertinent provisions of which is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to the Person
in whose name this Certificate is registered on the Record Date, in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to the Holders of Class M-9
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will be
made
or caused to be made by the Trustee by wire transfer in immediately available
funds to the account of the Person entitled thereto if such Person shall have
so
notified the Trustee in writing at least five Business Days prior to the Record
Date immediately prior to such Distribution Date or otherwise by check mailed
by
first class mail to the address of the Person entitled thereto, as such name
and
address shall appear on the Certificate Register. Notwithstanding the above,
the
final distribution on this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency appointed by the Trustee
for that purpose as provided in the Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable with respect
to this Certificate on any Distribution Date shall equal a rate per annum equal
to the lesser of (i) the related Formula Rate for such Distribution Date and
(ii) the related Net WAC Pass-Through Rate for such Distribution
Date.
This
Certificate is one of a duly authorized issue of Certificates designated as
Asset-Backed Pass-Through Certificates of the Series specified on the face
hereof (herein called the “Certificates”) and representing a Percentage Interest
in the Class of Certificates specified on the face hereof equal to the
denomination specified on the face hereof divided by the aggregate Certificate
Principal Balance of the Class of Certificates specified on the face
hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Custodial Account and the Certificate Account may be made from time to time
for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of advances made, or certain expenses incurred, with respect
to
the Mortgage Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Servicer, the Trustee and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 66% of the Voting
Rights. Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all future Holders of this Certificate
and
of any Certificate issued upon the transfer hereof or in exchange herefor or
in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices or
agencies appointed by the Trustee as provided in the Agreement, duly endorsed
by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trustee duly executed by,
the
Holder hereof or such Holder’s attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
Each
beneficial owner of this Certificate or any interest therein shall be deemed
to
have represented, by virtue of its acquisition or holding of such Certificate
or
any interest therein, that either (A) it is not an “employee benefit plan” as
defined in Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended (“ERISA”), that is subject to Title I of ERISA, any “plan” as defined
in Section 4975(e)(1) of the Internal Revenue Code of 1986, as amended (the
“Code”), that is subject to Section 4975 of the Code or any entity deemed to
hold plan assets of any of the foregoing, (B) it has acquired and is holding
this Certificate in reliance on the underwriters’ exemption, and that it
understands that there are certain conditions to the availability of the
underwriters’ exemption, including that this Certificate must be rated, at the
time of purchase, not lower than “BBB-” (or its equivalent) by Fitch, S&P or
Xxxxx’x and the Certificate is so rated, that it is an accredited investor as
defined in Rule 501(a)(1) of Regulation D of the Securities Act of 1933, as
amended, and that it will obtain a representation from any transferee that
such
transferee is an accredited investor, or (C)(1) it is an insurance company,
(2)
the source of funds used to acquire or hold this Certificate or any interest
therein is an “insurance company general account,” as such term is defined in
Prohibited Transaction Class Exemption (“PTCE”)
95-60,
and (3) the conditions in Sections I and III of PTCE 95-60 have been
satisfied.
If
this
Certificate or any interest therein is acquired or held in violation of the
provisions of Section 5.02(c) of the Agreement, the next preceding permitted
beneficial owner will be treated as the beneficial owner of this Certificate
retroactive to the date of transfer to the purported beneficial owner. Any
purported beneficial owner whose acquisition or holding of any this Certificate
or any interest therein was effected in violation of the provisions of Section
5.02(c) of the Agreement shall indemnify and hold harmless the Depositor, the
Servicer, the Trustee and the Trust Fund from and against any and all
liabilities, claims, costs or expenses incurred by those parties as a result
of
that acquisition or holding.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No service charge
will be made for any such registration of transfer or exchange of Certificates,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any transfer
or
exchange of Certificates.
The
Depositor, the Servicer, the Trustee and any agent of the Depositor, the
Servicer or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and none of the Depositor,
the
Servicer, the Trustee nor any such agent shall be affected by notice to the
contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Trustee and required to be paid to them pursuant to the Agreement following
the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan and REO Property remaining in REMIC
I
and (ii) the purchase by the party designated in the Agreement at a price
determined as provided in the Agreement from REMIC I of all the Mortgage Loans
and all property acquired in respect of such Mortgage Loans. The Agreement
permits, but does not require, the party designated in the Agreement to purchase
from REMIC I all the Mortgage Loans and all property acquired in respect of
any
Mortgage Loan at a price determined as provided in the Agreement. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Loans at the time of purchase being less than 10% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor and
the
Trustee assumes no responsibility for their correctness.
Unless
the certificate of authentication hereon has been executed by the Trustee,
by
manual signature, this Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
May 24, 2006
|
XXXXX
FARGO BANK, N.A., as Trustee
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Officer
|
|||||||||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
|
XXXXX
FARGO BANK, N.A., as Trustee
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory
|
|||||||||||||
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
|
TEN
COM -
|
as
tenants in common
|
UNIF
GIFT MIN ACT -
|
Custodian
|
|
(Cust) (Minor)
|
|||
|
TEN
ENT -
|
as
tenants by the entireties
|
under
Uniform Gifts
|
|
|
to
Minors Act
|
|||
|
JT
TEN -
|
as
joint tenants with right if
|
||
|
survivorship
and not as
|
(State)
|
||
|
tenants
in common
|
Additional
abbreviations may also be used though not in the above list.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
|
|
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset-Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on
the
Certificate Register of the Trust Fund.
I
(we)
further direct the Trustee to issue a new Certificate of a like Percentage
Interest and Class to the above named assignee and deliver such Certificate
to
the following address:
Dated:
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available
funds
|
to
|
,
|
|||||||
|
for
the account of
|
,
|
|||||||
|
account
number___________, or, if mailed by check, to
|
,
|
|||||||
|
Applicable
statements should be mailed to
|
||||||||
|
|
.
|
|||||||
|
This
information is provided by
|
,
|
|||||||
|
the
assignee named above, or
|
,
|
|||||||
|
as
its agent.
|
||||||||
EXHIBIT
A-14
FORM
OF
CLASS M-10 CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
(THE “CODE”).
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES, THE CLASS M-1
CERTIFICATES, THE CLASS M-2 CERTIFICATES, THE CLASS M-3 CERTIFICATES, THE CLASS
M-4 CERTIFICATES, THE CLASS M-5 CERTIFICATES, THE CLASS M-6 CERTIFICATES, THE
CLASS M-7 CERTIFICATES, THE CLASS M-8 CERTIFICATES AND THE CLASS M-9
CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT
OF
1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE RESOLD
OR
TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND LAWS OR IS SOLD
OR
TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION UNDER SUCH ACT
AND
UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT.
|
Series
2006-RFC1
Pass-Through
Rate: Variable
Cut-off
Date: May 1, 2006
Date
of Pooling and Servicing Agreement: May 1, 2006
First
Distribution Date: June 26, 2006
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-10 Certificates as of
the
Closing Date: $8,837,000
Denomination:
$8,837,000
Servicer:
Homecomings Financial Network, Inc.
Trustee:
Xxxxx Fargo Bank, N.A.
Closing
Date: May 24, 2006
CUSIP:
14453E AP 7
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
ASSET-BACKED
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a Trust Fund (the “Trust Fund”)
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate and fixed-rate, interest-only and fully-amortizing, first lien
and second lien mortgage loans (the “Mortgage Loans”) formed and sold
by
STANWICH
ASSET ACCEPTANCE COMPANY, L.L.C.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STANWICH ASSET
ACCEPTANCE COMPANY, L.L.C., THE SERVICER, THE TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
This
certifies that Cede & Co. is the registered owner of a Percentage Interest
(obtained by dividing the denomination of this Certificate by the aggregate
Certificate Principal Balance of the Class M-10 Certificates as of the Closing
Date) in that certain beneficial ownership interest evidenced by all the Class
M-10 Certificates in REMIC II created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Stanwich Asset
Acceptance Company, L.L.C. (hereinafter called the “Depositor,” which term
includes any successor entity under the Agreement), the Servicer and the
Trustee, a summary of certain of the pertinent provisions of which is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to the Person
in whose name this Certificate is registered on the Record Date, in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to the Holders of Class M-10
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will be
made
or caused to be made by the Trustee by wire transfer in immediately available
funds to the account of the Person entitled thereto if such Person shall have
so
notified the Trustee in writing at least five Business Days prior to the Record
Date immediately prior to such Distribution Date or otherwise by check mailed
by
first class mail to the address of the Person entitled thereto, as such name
and
address shall appear on the Certificate Register. Notwithstanding the above,
the
final distribution on this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency appointed by the Trustee
for that purpose as provided in the Agreement.
The
Pass-Through Rate applicable to the calculation of interest payable with respect
to this Certificate on any Distribution Date shall equal a rate per annum equal
to the lesser of (i) the related Formula Rate for such Distribution Date and
(ii) the related Net WAC Pass-Through Rate for such Distribution
Date.
This
Certificate is one of a duly authorized issue of Certificates designated as
Asset-Backed Pass-Through Certificates of the Series specified on the face
hereof (herein called the “Certificates”) and representing a Percentage Interest
in the Class of Certificates specified on the face hereof equal to the
denomination specified on the face hereof divided by the aggregate Certificate
Principal Balance of the Class of Certificates specified on the face
hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Custodial Account and the Certificate Account may be made from time to time
for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of advances made, or certain expenses incurred, with respect
to
the Mortgage Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Servicer, the Trustee and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 66% of the Voting
Rights. Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all future Holders of this Certificate
and
of any Certificate issued upon the transfer hereof or in exchange herefor or
in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices or
agencies appointed by the Trustee as provided in the Agreement, duly endorsed
by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trustee duly executed by,
the
Holder hereof or such Holder’s attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No
transfer of this Certificate shall be made unless the transfer is made pursuant
to an effective registration statement under the Securities Act of 1933, as
amended (the “1933 Act”), and an effective registration or qualification under
applicable state securities laws, or is made in a transaction that does not
require such registration or qualification. In the event that such a transfer
of
this Certificate is to be made without registration or qualification, the
Trustee shall require receipt of written certifications from the Holder of
the
Certificate desiring to effect the transfer, and from such Holder’s prospective
transferee, substantially in the forms attached to the Agreement as Exhibit
F-1.
None of the Depositor or the Trustee is obligated to register or qualify the
Class of Certificates specified on the face hereof under the 1933 Act or any
other securities law or to take any action not otherwise required under the
Agreement to permit the transfer of such Certificates without registration
or
qualification. Any Holder desiring to effect a transfer of this Certificate
shall be required to indemnify the Trustee, the Depositor and the Servicer
against any liability that may result if the transfer is not so exempt or is
not
made in accordance with such federal and state laws.
Each
beneficial owner of this Certificate or any interest therein shall be deemed
to
have represented, by virtue of its acquisition or holding of such Certificate
or
any interest therein, that either (A) it is not an “employee benefit plan” as
defined in Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended (“ERISA”), that is subject to Title I of ERISA, any “plan” as defined
in Section 4975(e)(1) of the Internal Revenue Code of 1986, as amended (the
“Code”), that is subject to Section 4975 of the Code or any entity deemed to
hold plan assets of any of the foregoing, (B) it has acquired and is holding
this Certificate in reliance on the underwriters’ exemption, and that it
understands that there are certain conditions to the availability of the
underwriters’ exemption, including that this Certificate must be rated, at the
time of purchase, not lower than “BBB-” (or its equivalent) by Fitch, S&P or
Xxxxx’x and the Certificate is so rated, that it is an accredited investor as
defined in Rule 501(a)(1) of Regulation D of the Securities Act of 1933, as
amended, and that it will obtain a representation from any transferee that
such
transferee is an accredited investor, or (C)(1) it is an insurance company,
(2)
the source of funds used to acquire or hold this Certificate or any interest
therein is an “insurance company general account,” as such term is defined in
Prohibited Transaction Class Exemption (“PTCE”)
95-60,
and (3) the conditions in Sections I and III of PTCE 95-60 have been
satisfied.
If
this
Certificate or any interest therein is acquired or held in violation of the
provisions of Section 5.02(c) of the Agreement, the next preceding permitted
beneficial owner will be treated as the beneficial owner of this Certificate
retroactive to the date of transfer to the purported beneficial owner. Any
purported beneficial owner whose acquisition or holding of any this Certificate
or any interest therein was effected in violation of the provisions of Section
5.02(c) of the Agreement shall indemnify and hold harmless the Depositor, the
Servicer, the Trustee and the Trust Fund from and against any and all
liabilities, claims, costs or expenses incurred by those parties as a result
of
that acquisition or holding.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No service charge
will be made for any such registration of transfer or exchange of Certificates,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any transfer
or
exchange of Certificates.
The
Depositor, the Servicer, the Trustee and any agent of the Depositor, the
Servicer or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and none of the Depositor,
the
Servicer, the Trustee nor any such agent shall be affected by notice to the
contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Trustee and required to be paid to them pursuant to the Agreement following
the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan and REO Property remaining in REMIC
I
and (ii) the purchase by the party designated in the Agreement at a price
determined as provided in the Agreement from REMIC I of all the Mortgage Loans
and all property acquired in respect of such Mortgage Loans. The Agreement
permits, but does not require, the party designated in the Agreement to purchase
from REMIC I all the Mortgage Loans and all property acquired in respect of
any
Mortgage Loan at a price determined as provided in the Agreement. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Loans at the time of purchase being less than 10% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor and
the
Trustee assumes no responsibility for their correctness.
Unless
the certificate of authentication hereon has been executed by the Trustee,
by
manual signature, this Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
May 24, 2006
|
XXXXX
FARGO BANK, N.A., as Trustee
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Officer
|
|||||||||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
|
XXXXX
FARGO BANK, N.A., as Trustee
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory
|
|||||||||||||
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
|
TEN
COM -
|
as
tenants in common
|
UNIF
GIFT MIN ACT -
|
Custodian
|
|
(Cust) (Minor)
|
|||
|
TEN
ENT -
|
as
tenants by the entireties
|
under
Uniform Gifts
|
|
|
to
Minors Act
|
|||
|
JT
TEN -
|
as
joint tenants with right if
|
||
|
survivorship
and not as
|
(State)
|
||
|
tenants
in common
|
Additional
abbreviations may also be used though not in the above list.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
|
|
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset-Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on
the
Certificate Register of the Trust Fund.
I
(we)
further direct the Trustee to issue a new Certificate of a like Percentage
Interest and Class to the above named assignee and deliver such Certificate
to
the following address:
Dated:
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available
funds
|
to
|
,
|
|||||||
|
for
the account of
|
,
|
|||||||
|
account
number___________, or, if mailed by check, to
|
,
|
|||||||
|
Applicable
statements should be mailed to
|
||||||||
|
|
.
|
|||||||
|
This
information is provided by
|
,
|
|||||||
|
the
assignee named above, or
|
,
|
|||||||
|
as
its agent.
|
||||||||
EXHIBIT
A-15
FORM
OF
CLASS CE CERTIFICATE
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
(THE “CODE”).
THIS
CERTIFICATE IS SUBORDINATE TO THE CLASS A CERTIFICATES, AND THE MEZZANINE
CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT
OF
1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE RESOLD
OR
TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND LAWS OR IS SOLD
OR
TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION UNDER SUCH ACT
AND
UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS
AMENDED, OR THE CODE WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES
DESCRIBED HEREIN.
|
Series:
2006-RFC1
Cut-off
Date: May 1, 2006
Date
of Pooling and Servicing Agreement: May 1, 2006
First
Distribution Date: June 26, 2006
No.
1
Aggregate
Notional Amount of the Class
CE
Certificates as of the Closing Date:
$
768,450,936
Notional
Amount: $ 768,450,936
|
Aggregate
Certificate Principal Balance of the Class CE Certificates as of
the
Closing Date: $29,200,936
Denomination:
$29,200,936
Servicer:
Homecomings Financial Network, Inc.
Trustee:
Xxxxx Fargo Bank, N.A.
Closing
Date: May 24, 2006
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
ASSET-BACKED
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a Trust Fund (the “Trust Fund”)
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate and fixed-rate, interest-only and fully-amortizing, first lien
and second lien mortgage loans (the “Mortgage Loans”) formed and sold
by
STANWICH
ASSET ACCEPTANCE COMPANY, L.L.C.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STANWICH ASSET
ACCEPTANCE COMPANY, L.L.C., THE SERVICER, THE TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
This
certifies that Xxxxx Fargo Bank, N.A., as Indenture Trustee under the Indenture,
dated May 24, 2006, relating to the Xxxxxxxxxx XXX Trust 2006-RFC1 Notes, is
the
registered owner of a Percentage Interest (obtained by dividing the denomination
of this Certificate by the aggregate Certificate Principal Balance of the Class
CE Certificates as of the Closing Date) in that certain beneficial ownership
interest evidenced by all the Class CE Certificates in REMIC II created pursuant
to a Pooling and Servicing Agreement, dated as specified above (the
“Agreement”), among Stanwich Asset Acceptance Company, L.L.C. (hereinafter
called the “Depositor,” which term includes any successor entity under the
Agreement), the Servicer and the Trustee, a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is
bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to the Person
in whose name this Certificate is registered on the Record Date, in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to the Holders of Class CE
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will be
made
or caused to be made by the Trustee by wire transfer in immediately available
funds to the account of the Person entitled thereto if such Person shall have
so
notified the Trustee in writing at least five Business Days prior to the Record
Date immediately prior to such Distribution Date or otherwise by check mailed
by
first class mail to the address of the Person entitled thereto, as such name
and
address shall appear on the Certificate Register. Notwithstanding the above,
the
final distribution on this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency appointed by the Trustee
for that purpose as provided in the Agreement.
This
Certificate is one of a duly authorized issue of Certificates designated as
Asset-Backed Pass-Through Certificates of the Series specified on the face
hereof (herein called the “Certificates”) and representing a Percentage Interest
in the Class of Certificates specified on the face hereof equal to the
denomination specified on the face hereof divided by the aggregate Certificate
Principal Balance of the Class of Certificates specified on the face
hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Custodial Account and the Certificate Account may be made from time to time
for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of advances made, or certain expenses incurred, with respect
to
the Mortgage Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Servicer, the Trustee and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 66% of the Voting
Rights. Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all future Holders of this Certificate
and
of any Certificate issued upon the transfer hereof or in exchange herefor or
in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices or
agencies appointed by the Trustee as provided in the Agreement, duly endorsed
by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trustee duly executed by,
the
Holder hereof or such Holder’s attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No
transfer of this Certificate shall be made unless the transfer is made pursuant
to an effective registration statement under the Securities Act of 1933, as
amended (the “1933 Act”), and an effective registration or qualification under
applicable state securities laws, or is made in a transaction that does not
require such registration or qualification. In the event that such a transfer
of
this Certificate is to be made without registration or qualification, the
Trustee shall require receipt of (i) if such transfer is purportedly being
made
in reliance upon Rule 144A under the 1933 Act, written certifications from
the
Holder of the Certificate desiring to effect the transfer, and from such
Holder’s prospective transferee, substantially in the forms attached to the
Agreement as Exhibit F-1, and (ii) in all other cases, an Opinion of Counsel
satisfactory to it that such transfer may be made without such registration
or
qualification (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Trustee or the Servicer in their respective
capacities as such), together with copies of the written certification(s) of
the
Holder of the Certificate desiring to effect the transfer and/or such Holder’s
prospective transferee upon which such Opinion of Counsel is based. None of
the
Depositor or the Trustee is obligated to register or qualify the Class of
Certificates specified on the face hereof under the 1933 Act or any other
securities law or to take any action not otherwise required under the Agreement
to permit the transfer of such Certificates without registration or
qualification. Any Holder desiring to effect a transfer of this Certificate
shall be required to indemnify the Trustee, the Depositor and the Servicer
against any liability that may result if the transfer is not so exempt or is
not
made in accordance with such federal and state laws.
No
transfer of this Certificate or any interest therein shall be made to any
“employee benefit plan” as defined in Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended (“ERISA”), that is subject to Title I of
ERISA, any “plan” as defined in Section 4975(e)(1) of the Internal Revenue Code
of 1986, as amended (the “Code”), that is subject to Section 4975 of the Code or
any entity deemed to hold plan assets of any of the foregoing (each, a “Plan”),
any Person acting, directly or indirectly, on behalf of any such Plan or any
Person acquiring this Certificate with “plan assets” (within the meaning of the
Department of Labor regulation promulgated at 29 C. F. R. § 2510.3-101
(“Plan
Assets”))
of a
Plan, as certified by such transferee in the form of Exhibit
G
to the
Agreement, unless the Trustee is provided with an Opinion of Counsel acceptable
to and in form and substance satisfactory to the Depositor, the Trustee and
the
Servicer to the effect that the purchase and holding of this Certificate is
permissible under applicable law, will not constitute or result in any
non-exempt prohibited transaction under Section 406 of ERISA or Section 4975
of
the Code (or comparable provisions of any subsequent enactments) and will not
subject the Depositor, the Servicer, the Trustee or the Trust Fund to any
obligation or liability (including obligations or liabilities under ERISA or
Section 4975 of the Code) in addition to those undertaken in the Agreement,
which Opinion of Counsel shall not be an expense of the Depositor, the Servicer,
the Trustee or the Trust Fund.
If
this
Certificate or any interest therein is acquired or held in violation of the
provisions of Section 5.02(c) of the Agreement, the next preceding permitted
beneficial owner will be treated as the beneficial owner of this Certificate
retroactive to the date of transfer to the purported beneficial owner. Any
purported beneficial owner whose acquisition or holding of any this Certificate
or any interest therein was effected in violation of the provisions of Section
5.02(c) of the Agreement shall indemnify and hold harmless the Depositor, the
Servicer, the Trustee and the Trust Fund from and against any and all
liabilities, claims, costs or expenses incurred by those parties as a result
of
that acquisition or holding.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No service charge
will be made for any such registration of transfer or exchange of Certificates,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any transfer
or
exchange of Certificates.
The
Depositor, the Servicer, the Trustee and any agent of the Depositor, the
Servicer or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and none of the Depositor,
the
Servicer, the Trustee nor any such agent shall be affected by notice to the
contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Trustee and required to be paid to them pursuant to the Agreement following
the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan and REO Property remaining in REMIC
I
and (ii) the purchase by the party designated in the Agreement at a price
determined as provided in the Agreement from REMIC I of all the Mortgage Loans
and all property acquired in respect of such Mortgage Loans. The Agreement
permits, but does not require, the party designated in the Agreement to purchase
from REMIC I all the Mortgage Loans and all property acquired in respect of
any
Mortgage Loan at a price determined as provided in the Agreement. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Loans at the time of purchase being less than 10% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor and
the
Trustee assumes no responsibility for their correctness.
Unless
the certificate of authentication hereon has been executed by the Trustee,
by
manual signature, this Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
May 24, 2006
|
XXXXX
FARGO BANK, N.A., as Trustee
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Officer
|
|||||||||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
|
XXXXX
FARGO BANK, N.A., as Trustee
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory
|
|||||||||||||
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
|
TEN
COM -
|
as
tenants in common
|
UNIF
GIFT MIN ACT -
|
Custodian
|
|
(Cust) (Minor)
|
|||
|
TEN
ENT -
|
as
tenants by the entireties
|
under
Uniform Gifts
|
|
|
to
Minors Act
|
|||
|
JT
TEN -
|
as
joint tenants with right if
|
||
|
survivorship
and not as
|
(State)
|
||
|
tenants
in common
|
Additional
abbreviations may also be used though not in the above list.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
|
|
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset-Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on
the
Certificate Register of the Trust Fund.
I
(we)
further direct the Trustee to issue a new Certificate of a like Percentage
Interest and Class to the above named assignee and deliver such Certificate
to
the following address:
Dated:
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available
funds
|
to
|
,
|
|||||||
|
for
the account of
|
,
|
|||||||
|
account
number___________, or, if mailed by check, to
|
,
|
|||||||
|
Applicable
statements should be mailed to
|
||||||||
|
|
.
|
|||||||
|
This
information is provided by
|
,
|
|||||||
|
the
assignee named above, or
|
,
|
|||||||
|
as
its agent.
|
||||||||
EXHIBIT
A-16
FORM
OF
CLASS P CERTIFICATE
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT,” AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986
(THE “CODE”).
THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT
OF
1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE RESOLD
OR
TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND LAWS OR IS SOLD
OR
TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION UNDER SUCH ACT
AND
UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS
AMENDED, OR THE CODE WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES
DESCRIBED HEREIN.
|
Series:
2006-RFC1
Cut-off
Date and date of Pooling and Servicing Agreement: May 1, 2006
First
Distribution Date: June 26, 2006
No.
1
|
Aggregate
Certificate Principal Balance of the Class P Certificates as of the
Closing Date: $100
Denomination:
$100
Servicer:
Homecomings Financial Network, Inc.
Trustee:
Xxxxx Fargo Bank, N.A.
Closing
Date: May 24, 2006
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
ASSET-BACKED
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a Trust Fund (the “Trust Fund”)
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate and fixed-rate, interest-only and fully-amortizing, first lien
and second lien mortgage loans (the “Mortgage Loans”) formed and sold
by
STANWICH
ASSET ACCEPTANCE COMPANY, L.L.C.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STANWICH ASSET
ACCEPTANCE COMPANY, L.L.C., THE SERVICER, THE TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
This
certifies Xxxxx Fargo Bank, N.A., as Indenture Trustee under the Indenture,
dated May 24, 2006, relating to the Xxxxxxxxxx XXX Trust 2006-RFC1 Notes, is
the
registered owner of a Percentage Interest (obtained by dividing the denomination
of this Certificate by the aggregate Certificate Principal Balance of the Class
P Certificates as of the Closing Date) in that certain beneficial ownership
interest evidenced by all the Class P Certificates in REMIC II created pursuant
to a Pooling and Servicing Agreement, dated as specified above (the
“Agreement”), among Stanwich Asset Acceptance Company, L.L.C. (hereinafter
called the “Depositor,” which term includes any successor entity under the
Agreement), the Servicer and the Trustee, a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the meanings assigned in the Agreement.
This Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is
bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to the Person
in whose name this Certificate is registered on the Record Date, in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to the Holders of Class P Certificates
on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will be
made
or caused to be made by the Trustee by wire transfer in immediately available
funds to the account of the Person entitled thereto if such Person shall have
so
notified the Trustee in writing at least five Business Days prior to the Record
Date immediately prior to such Distribution Date or otherwise by check mailed
by
first class mail to the address of the Person entitled thereto, as such name
and
address shall appear on the Certificate Register. Notwithstanding the above,
the
final distribution on this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency appointed by the Trustee
for that purpose as provided in the Agreement.
This
Certificate is one of a duly authorized issue of Certificates designated as
Asset-Backed Pass-Through Certificates of the Series specified on the face
hereof (herein called the “Certificates”) and representing a Percentage Interest
in the Class of Certificates specified on the face hereof equal to the
denomination specified on the face hereof divided by the aggregate Certificate
Principal Balance of the Class of Certificates specified on the face
hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Custodial Account and the Certificate Account may be made from time to time
for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of advances made, or certain expenses incurred, with respect
to
the Mortgage Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Servicer, the Trustee and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 66% of the Voting
Rights. Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all future Holders of this Certificate
and
of any Certificate issued upon the transfer hereof or in exchange herefor or
in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices or
agencies appointed by the Trustee as provided in the Agreement, duly endorsed
by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trustee duly executed by,
the
Holder hereof or such Holder’s attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No
transfer of this Certificate shall be made unless the transfer is made pursuant
to an effective registration statement under the Securities Act of 1933, as
amended (the “1933 Act”), and an effective registration or qualification under
applicable state securities laws, or is made in a transaction that does not
require such registration or qualification. In the event that such a transfer
of
this Certificate is to be made without registration or qualification, the
Trustee shall require receipt of (i) if such transfer is purportedly being
made
in reliance upon Rule 144A under the 1933 Act, written certifications from
the
Holder of the Certificate desiring to effect the transfer, and from such
Holder’s prospective transferee, substantially in the forms attached to the
Agreement as Exhibit F-1, and (ii) in all other cases, an Opinion of Counsel
satisfactory to it that such transfer may be made without such registration
or
qualification (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Trustee or the Servicer in their respective
capacities as such), together with copies of the written certification(s) of
the
Holder of the Certificate desiring to effect the transfer and/or such Holder’s
prospective transferee upon which such Opinion of Counsel is based. None of
the
Depositor or the Trustee is obligated to register or qualify the Class of
Certificates specified on the face hereof under the 1933 Act or any other
securities law or to take any action not otherwise required under the Agreement
to permit the transfer of such Certificates without registration or
qualification. Any Holder desiring to effect a transfer of this Certificate
shall be required to indemnify the Trustee, the Depositor and the Servicer
against any liability that may result if the transfer is not so exempt or is
not
made in accordance with such federal and state laws.
No
transfer of this Certificate or any interest therein shall be made to any
“employee benefit plan” as defined in Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended (“ERISA”), that is subject to Title I of
ERISA, any “plan” as defined in Section 4975(e)(1) of the Internal Revenue Code
of 1986, as amended (the “Code”), that is subject to Section 4975 of the Code or
any entity deemed to hold plan assets of any of the foregoing (each, a “Plan”),
any Person acting, directly or indirectly, on behalf of any such Plan or any
Person acquiring this Certificate with “plan assets” (within the meaning of the
Department of Labor regulation promulgated at 29 C. F. R. § 2510.3-101
(“Plan
Assets”))
of a
Plan, as certified by such transferee in the form of Exhibit
G
to the
Agreement, unless the Trustee is provided with an Opinion of Counsel acceptable
to and in form and substance satisfactory to the Depositor, the Trustee and
the
Servicer to the effect that the purchase and holding of this Certificate is
permissible under applicable law, will not constitute or result in any
non-exempt prohibited transaction under Section 406 of ERISA or Section 4975
of
the Code (or comparable provisions of any subsequent enactments) and will not
subject the Depositor, the Servicer, the Trustee or the Trust Fund to any
obligation or liability (including obligations or liabilities under ERISA or
Section 4975 of the Code) in addition to those undertaken in the Agreement,
which Opinion of Counsel shall not be an expense of the Depositor, the Servicer,
the Trustee or the Trust Fund.
If
this
Certificate or any interest therein is acquired or held in violation of the
provisions of Section 5.02(c) of the Agreement, the next preceding permitted
beneficial owner will be treated as the beneficial owner of this Certificate
retroactive to the date of transfer to the purported beneficial owner. Any
purported beneficial owner whose acquisition or holding of any this Certificate
or any interest therein was effected in violation of the provisions of Section
5.02(c) of the Agreement shall indemnify and hold harmless the Depositor, the
Servicer, the Trustee and the Trust Fund from and against any and all
liabilities, claims, costs or expenses incurred by those parties as a result
of
that acquisition or holding.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No service charge
will be made for any such registration of transfer or exchange of Certificates,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any transfer
or
exchange of Certificates.
The
Depositor, the Servicer, the Trustee and any agent of the Depositor, the
Servicer or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and none of the Depositor,
the
Servicer, the Trustee nor any such agent shall be affected by notice to the
contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Trustee and required to be paid to them pursuant to the Agreement following
the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan and REO Property remaining in REMIC
I
and (ii) the purchase by the party designated in the Agreement at a price
determined as provided in the Agreement from REMIC I of all the Mortgage Loans
and all property acquired in respect of such Mortgage Loans. The Agreement
permits, but does not require, the party designated in the Agreement to purchase
from REMIC I all the Mortgage Loans and all property acquired in respect of
any
Mortgage Loan at a price determined as provided in the Agreement. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Loans at the time of purchase being less than 10% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor and
the
Trustee assumes no responsibility for their correctness.
Unless
the certificate of authentication hereon has been executed by the Trustee,
by
manual signature, this Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
May 24, 2006
|
XXXXX
FARGO BANK, N.A., as Trustee
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Officer
|
|||||||||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
|
XXXXX
FARGO BANK, N.A., as Trustee
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory
|
|||||||||||||
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
|
TEN
COM -
|
as
tenants in common
|
UNIF
GIFT MIN ACT -
|
Custodian
|
|
(Cust) (Minor)
|
|||
|
TEN
ENT -
|
as
tenants by the entireties
|
under
Uniform Gifts
|
|
|
to
Minors Act
|
|||
|
JT
TEN -
|
as
joint tenants with right if
|
||
|
survivorship
and not as
|
(State)
|
||
|
tenants
in common
|
Additional
abbreviations may also be used though not in the above list.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
|
|
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset-Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on
the
Certificate Register of the Trust Fund.
I
(we)
further direct the Trustee to issue a new Certificate of a like Percentage
Interest and Class to the above named assignee and deliver such Certificate
to
the following address:
Dated:
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available
funds
|
to
|
,
|
|||||||
|
for
the account of
|
,
|
|||||||
|
account
number___________, or, if mailed by check, to
|
,
|
|||||||
|
Applicable
statements should be mailed to
|
||||||||
|
|
.
|
|||||||
|
This
information is provided by
|
,
|
|||||||
|
the
assignee named above, or
|
,
|
|||||||
|
as
its agent.
|
||||||||
EXHIBIT
A-17
FORM
OF
CLASS R-I CERTIFICATE
THIS
CERTIFICATE MAY NOT BE TRANSFERRED TO A NON-UNITED STATES PERSON.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “RESIDUAL INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT” (“REMIC”), AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF
1986 (THE “CODE”).
ANY
RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY
IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT
OF
1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE RESOLD
OR
TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND LAWS OR IS SOLD
OR
TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION UNDER SUCH ACT
AND
UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS
AMENDED, OR THE CODE WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES
DESCRIBED HEREIN.
ANY
RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY
IF
THE PROPOSED TRANSFEREE PROVIDES (I) AN AFFIDAVIT TO THE TRUSTEE THAT (A) SUCH
TRANSFEREE IS NOT (1) THE UNITED STATES OR ANY POSSESSION THEREOF, ANY STATE
OR
POLITICAL SUBDIVISION THEREOF, ANY FOREIGN GOVERNMENT, ANY INTERNATIONAL
ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING, (2)
ANY
ORGANIZATION (OTHER THAN A COOPERATIVE DESCRIBED IN SECTION 521 OF THE CODE)
THAT IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE UNLESS SUCH
ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE, (3)
ANY
ORGANIZATION DESCRIBED IN SECTION 1381(A)(2)(C) OF THE CODE (ANY SUCH PERSON
DESCRIBED IN THE FOREGOING CLAUSES (1), (2) OR (3) SHALL HEREINAFTER BE REFERRED
TO AS A “DISQUALIFIED ORGANIZATION”) OR (4) AN AGENT OF A DISQUALIFIED
ORGANIZATION AND (B) NO PURPOSE OF SUCH TRANSFER IS TO IMPEDE THE ASSESSMENT
OR
COLLECTION OF TAX, AND (II) SUCH TRANSFEREE SATISFIES CERTAIN ADDITIONAL
CONDITIONS RELATING TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE.
NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OF ANY TRANSFER,
SALE OR OTHER DISPOSITION OF THIS CERTIFICATE TO A DISQUALIFIED ORGANIZATION
OR
AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH REGISTRATION SHALL BE DEEMED
TO BE
OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED
TO BE
A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO,
THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER OF THIS
CERTIFICATE BY ACCEPTANCE HEREOF SHALL BE DEEMED TO HAVE CONSENTED TO THE
PROVISIONS OF THIS PARAGRAPH AND THE PROVISIONS OF SECTION 5.02(D) OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. ANY PERSON THAT IS A
DISQUALIFIED ORGANIZATION IS PROHIBITED FROM ACQUIRING BENEFICIAL OWNERSHIP
OF
THIS CERTIFICATE.
|
Series
2006-RFC1
Cut-off
Date and date of Pooling and Servicing Agreement: May 1, 2006
First
Distribution Date: June 26, 2006
No.1
|
Aggregate
Percentage Interest of the Class R-I Certificates as of the Closing
Date:
100.00%
Servicer:
Homecomings Financial Network, Inc.
Trustee:
Xxxxx Fargo Bank, N.A.
Closing
Date: May 24, 2006
|
ASSET-BACKED
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a Trust Fund (the “Trust Fund”)
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate and fixed-rate, interest-only and fully-amortizing, first lien
and second lien mortgage loans (the “Mortgage Loans”) formed and sold
by
STANWICH
ASSET ACCEPTANCE COMPANY, L.L.C.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STANWICH ASSET
ACCEPTANCE COMPANY, L.L.C., THE SERVICER, THE TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
This
certifies that Greenwich
Residual Venture, LLC is
the
registered owner of a Percentage Interest (as specified above) in that certain
beneficial ownership interest evidenced by all the Certificates of the Class
to
which this Certificate belongs created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Stanwich Asset
Acceptance Company, L.L.C. (hereinafter called the “Depositor,” which term
includes any successor entity under the Agreement), the Servicer and the
Trustee, a summary of certain of the pertinent provisions of which is set forth
hereafter. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to the Person
in whose name this Certificate is registered on the Record Date, in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to the Holders of Class R-I
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will be
made
or caused to be made by the Trustee by wire transfer in immediately available
funds to the account of the Person entitled thereto if such Person shall have
so
notified the Trustee in writing at least five Business Days prior to the Record
Date immediately prior to such Distribution Date or otherwise by check mailed
by
first class mail to the address of the Person entitled thereto, as such name
and
address shall appear on the Certificate Register. Notwithstanding the above,
the
final distribution on this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency appointed by the Trustee
for that purpose as provided in the Agreement.
This
Certificate is one of a duly authorized issue of Certificates designated as
Asset-Backed Pass-Through Certificates of the Series specified on the face
hereof (herein called the “Certificates”) and representing a Percentage Interest
in the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Custodial Account and the Certificate Account may be made from time to time
for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of advances made, or certain expenses incurred, with respect
to
the Mortgage Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Servicer and the Trustee and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 66% of the Voting
Rights. Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all future Holders of this Certificate
and
of any Certificate issued upon the transfer hereof or in exchange herefor or
in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices or
agencies appointed by the Trustee as provided in the Agreement, duly endorsed
by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trustee duly executed by,
the
Holder hereof or such Holder’s attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No
transfer of this Certificate shall be made unless the transfer is made pursuant
to an effective registration statement under the Securities Act of 1933, as
amended (the “1933 Act”), and an effective registration or qualification under
applicable state securities laws, or is made in a transaction that does not
require such registration or qualification. In the event that such a transfer
of
this Certificate is to be made without registration or qualification, the
Trustee shall require receipt of (i) if such transfer is purportedly being
made
in reliance upon Rule 144A under the 1933 Act, written certifications from
the
Holder of the Certificate desiring to effect the transfer, and from such
Holder’s prospective transferee, substantially in the forms attached to the
Agreement as Exhibit F-1, and (ii) in all other cases, an Opinion of Counsel
satisfactory to it that such transfer may be made without such registration
or
qualification (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Trustee or the Servicer in their respective
capacities as such), together with copies of the written certification(s) of
the
Holder of the Certificate desiring to effect the transfer and/or such Holder’s
prospective transferee upon which such Opinion of Counsel is based. None of
the
Depositor or the Trustee is obligated to register or qualify the Class of
Certificates specified on the face hereof under the 1933 Act or any other
securities law or to take any action not otherwise required under the Agreement
to permit the transfer of such Certificates without registration or
qualification. Any Holder desiring to effect a transfer of this Certificate
shall be required to indemnify the Trustee, the Depositor and the Servicer
against any liability that may result if the transfer is not so exempt or is
not
made in accordance with such federal and state laws.
No
transfer of this Certificate or any interest therein shall be made to any
“employee benefit plan” as defined in Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended (“ERISA”), that is subject to Title I of
ERISA, any “plan” as defined in Section 4975(e)(1) of the Internal Revenue Code
of 1986, as amended (the “Code”), that is subject to Section 4975 of the Code or
any entity deemed to hold plan assets of any of the foregoing (each, a “Plan”),
any Person acting, directly or indirectly, on behalf of any such Plan or any
Person acquiring this Certificate with “plan assets” (within the meaning of the
Department of Labor regulation promulgated at 29 C. F. R. § 2510.3-101
(“Plan
Assets”))
of a
Plan, as certified by such transferee in the form of Exhibit
G
to the
Agreement, unless the Trustee is provided with an Opinion of Counsel acceptable
to and in form and substance satisfactory to the Depositor, the Trustee and
the
Servicer to the effect that the purchase and holding of this Certificate is
permissible under applicable law, will not constitute or result in any
non-exempt prohibited transaction under Section 406 of ERISA or Section 4975
of
the Code (or comparable provisions of any subsequent enactments) and will not
subject the Depositor, the Servicer, the Trustee or the Trust Fund to any
obligation or liability (including obligations or liabilities under ERISA or
Section 4975 of the Code) in addition to those undertaken in the Agreement,
which Opinion of Counsel shall not be an expense of the Depositor, the Servicer,
the Trustee or the Trust Fund.
If
this
Certificate or any interest therein is acquired or held in violation of the
provisions of Section 5.02(c) of the Agreement, the next preceding permitted
beneficial owner will be treated as the beneficial owner of this Certificate
retroactive to the date of transfer to the purported beneficial owner. Any
purported beneficial owner whose acquisition or holding of any this Certificate
or any interest therein was effected in violation of the provisions of Section
5.02(c) of the Agreement shall indemnify and hold harmless the Depositor, the
Servicer, the Trustee and the Trust Fund from and against any and all
liabilities, claims, costs or expenses incurred by those parties as a result
of
that acquisition or holding.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No service charge
will be made for any such registration of transfer or exchange of Certificates,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any transfer
or
exchange of Certificates.
Prior
to
registration of any transfer, sale or other disposition of this Certificate,
the
proposed transferee shall provide to the Trustee (i) an affidavit to the effect
that such transferee is any Person other than a Disqualified Organization or
the
agent (including a broker, nominee or middleman) of a Disqualified Organization,
and (ii) a certificate that acknowledges that (A) the Class R-I Certificates
have been designated as a residual interest in a REMIC, (B) it will include
in
its income a pro
rata share
of
the net income of the Trust Fund and that such income may be an “excess
inclusion,” as defined in the Code, that, with certain exceptions, cannot be
offset by other losses or benefits from any tax exemption, and (C) it expects
to
have the financial means to satisfy all of its tax obligations including those
relating to holding the Class R-I Certificates. Notwithstanding the registration
in the Certificate Register of any transfer, sale or other disposition of this
Certificate to a Disqualified Organization or an agent (including a broker,
nominee or middleman) of a Disqualified Organization, such registration shall
be
deemed to be of no legal force or effect whatsoever and such Person shall not
be
deemed to be a Certificateholder for any purpose, including, but not limited
to,
the receipt of distributions in respect of this Certificate.
The
Holder of this Certificate, by its acceptance hereof, shall be deemed to have
consented to the provisions of Section 5.02 of the Agreement and to any
amendment of the Agreement deemed necessary by counsel of the Depositor to
ensure that the transfer of this Certificate to any Person other than a
Permitted Transferee or any other Person will not cause the Trust Fund to cease
to qualify as a REMIC or cause the imposition of a tax upon the
REMIC.
The
Depositor, the Servicer, the Trustee and any agent of the Depositor, the
Servicer or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and none of the Depositor,
the
Servicer, the Trustee nor any such agent shall be affected by notice to the
contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Trustee and required to be paid to them pursuant to the Agreement following
the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan and REO Property remaining in REMIC
I
and (ii) the purchase by the party designated in the Agreement at a price
determined as provided in the Agreement from REMIC I of all the Mortgage Loans
and all property acquired in respect of such Mortgage Loans. The Agreement
permits, but does not require, the party designated in the Agreement to purchase
from REMIC I all the Mortgage Loans and all property acquired in respect of
any
Mortgage Loan at a price determined as provided in the Agreement. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Loans at the time of purchase being less than 10% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor and
the
Trustee assumes no responsibility for their correctness.
Unless
the certificate of authentication hereon has been executed by the Trustee,
by
manual signature, this Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
May 24, 2006
|
XXXXX
FARGO BANK, N.A., as Trustee
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Officer
|
|||||||||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
|
XXXXX
FARGO BANK, N.A., as Trustee
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory
|
|||||||||||||
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
|
TEN
COM -
|
as
tenants in common
|
UNIF
GIFT MIN ACT -
|
Custodian
|
|
(Cust) (Minor)
|
|||
|
TEN
ENT -
|
as
tenants by the entireties
|
under
Uniform Gifts
|
|
|
to
Minors Act
|
|||
|
JT
TEN -
|
as
joint tenants with right if
|
||
|
survivorship
and not as
|
(State)
|
||
|
tenants
in common
|
Additional
abbreviations may also be used though not in the above list.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
|
|
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset-Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on
the
Certificate Register of the Trust Fund.
I
(we)
further direct the Trustee to issue a new Certificate of a like Percentage
Interest and Class to the above named assignee and deliver such Certificate
to
the following address:
Dated:
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available
funds
|
to
|
,
|
|||||||
|
for
the account of
|
,
|
|||||||
|
account
number___________, or, if mailed by check, to
|
,
|
|||||||
|
Applicable
statements should be mailed to
|
||||||||
|
|
.
|
|||||||
|
This
information is provided by
|
,
|
|||||||
|
the
assignee named above, or
|
,
|
|||||||
|
as
its agent.
|
||||||||
EXHIBIT
A-18
FORM
OF
CLASS R-II CERTIFICATE
THIS
CERTIFICATE MAY NOT BE TRANSFERRED TO A NON-UNITED STATES PERSON.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “RESIDUAL INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT” (“REMIC”), AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE
OF
1986 (THE “CODE”).
ANY
RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY
IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT
OF
1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE RESOLD
OR
TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND LAWS OR IS SOLD
OR
TRANSFERRED IN TRANSACTIONS THAT ARE EXEMPT FROM REGISTRATION UNDER SUCH ACT
AND
UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE AGREEMENT.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS
AMENDED, OR THE CODE WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES
DESCRIBED HEREIN.
ANY
RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE MAY BE MADE ONLY
IF
THE PROPOSED TRANSFEREE PROVIDES (I) AN AFFIDAVIT TO THE TRUSTEE THAT (A) SUCH
TRANSFEREE IS NOT (1) THE UNITED STATES OR ANY POSSESSION THEREOF, ANY STATE
OR
POLITICAL SUBDIVISION THEREOF, ANY FOREIGN GOVERNMENT, ANY INTERNATIONAL
ORGANIZATION, OR ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING, (2)
ANY
ORGANIZATION (OTHER THAN A COOPERATIVE DESCRIBED IN SECTION 521 OF THE CODE)
THAT IS EXEMPT FROM THE TAX IMPOSED BY CHAPTER 1 OF THE CODE UNLESS SUCH
ORGANIZATION IS SUBJECT TO THE TAX IMPOSED BY SECTION 511 OF THE CODE, (3)
ANY
ORGANIZATION DESCRIBED IN SECTION 1381(A)(2)(C) OF THE CODE (ANY SUCH PERSON
DESCRIBED IN THE FOREGOING CLAUSES (1), (2) OR (3) SHALL HEREINAFTER BE REFERRED
TO AS A “DISQUALIFIED ORGANIZATION”) OR (4) AN AGENT OF A DISQUALIFIED
ORGANIZATION AND (B) NO PURPOSE OF SUCH TRANSFER IS TO IMPEDE THE ASSESSMENT
OR
COLLECTION OF TAX, AND (II) SUCH TRANSFEREE SATISFIES CERTAIN ADDITIONAL
CONDITIONS RELATING TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE.
NOTWITHSTANDING THE REGISTRATION IN THE CERTIFICATE REGISTER OF ANY TRANSFER,
SALE OR OTHER DISPOSITION OF THIS CERTIFICATE TO A DISQUALIFIED ORGANIZATION
OR
AN AGENT OF A DISQUALIFIED ORGANIZATION, SUCH REGISTRATION SHALL BE DEEMED
TO BE
OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED
TO BE
A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER, INCLUDING, BUT NOT LIMITED TO,
THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE. EACH HOLDER OF THIS
CERTIFICATE BY ACCEPTANCE HEREOF SHALL BE DEEMED TO HAVE CONSENTED TO THE
PROVISIONS OF THIS PARAGRAPH AND THE PROVISIONS OF SECTION 5.02(D) OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. ANY PERSON THAT IS A
DISQUALIFIED ORGANIZATION IS PROHIBITED FROM ACQUIRING BENEFICIAL OWNERSHIP
OF
THIS CERTIFICATE.
|
Series
2006-RFC1
Cut-off
Date and date of Pooling and Servicing Agreement: May 1, 2006
First
Distribution Date: June 26, 2006
No.1
|
Aggregate
Percentage Interest of the Class R-II Certificates as of the Closing
Date:
100.00%
Servicer:
Homecomings Financial Network, Inc.
Trustee:
Xxxxx Fargo Bank, N.A.
Closing
Date: May 24, 2006
|
ASSET-BACKED
PASS-THROUGH CERTIFICATE
evidencing
a beneficial ownership interest in a portion of a Trust Fund (the “Trust Fund”)
consisting primarily of a pool of conventional one- to four-family,
adjustable-rate and fixed-rate, interest-only and fully-amortizing, first lien
and second lien mortgage loans (the “Mortgage Loans”) formed and sold
by
STANWICH
ASSET ACCEPTANCE COMPANY, L.L.C.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN STANWICH ASSET
ACCEPTANCE COMPANY, L.L.C., THE SERVICER, THE TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES. NEITHER THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE
GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES.
This
certifies that Greenwich Residual Venture, LLC is the registered owner of a
Percentage Interest (as specified above) in that certain beneficial ownership
interest evidenced by all the Certificates of the Class to which this
Certificate belongs created pursuant to a Pooling and Servicing Agreement,
dated
as specified above (the “Agreement”), among Stanwich Asset Acceptance Company,
L.L.C. (hereinafter called the “Depositor,” which term includes any successor
entity under the Agreement), the Servicer and the Trustee, a summary of certain
of the pertinent provisions of which is set forth hereafter. To the extent
not
defined herein, the capitalized terms used herein have the meanings assigned
in
the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant
to the terms of the Agreement, distributions will be made on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the Business Day immediately following (a “Distribution
Date”), commencing on the First Distribution Date specified above, to the Person
in whose name this Certificate is registered on the Record Date, in an amount
equal to the product of the Percentage Interest evidenced by this Certificate
and the amount required to be distributed to the Holders of Class R-II
Certificates on such Distribution Date pursuant to the Agreement.
All
distributions to the Holder of this Certificate under the Agreement will be
made
or caused to be made by the Trustee by wire transfer in immediately available
funds to the account of the Person entitled thereto if such Person shall have
so
notified the Trustee in writing at least five Business Days prior to the Record
Date immediately prior to such Distribution Date or otherwise by check mailed
by
first class mail to the address of the Person entitled thereto, as such name
and
address shall appear on the Certificate Register. Notwithstanding the above,
the
final distribution on this Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency appointed by the Trustee
for that purpose as provided in the Agreement.
This
Certificate is one of a duly authorized issue of Certificates designated as
Asset-Backed Pass-Through Certificates of the Series specified on the face
hereof (herein called the “Certificates”) and representing a Percentage Interest
in the Class of Certificates specified on the face hereof.
The
Certificates are limited in right of payment to certain collections and
recoveries respecting the Mortgage Loans, all as more specifically set forth
herein and in the Agreement. As provided in the Agreement, withdrawals from
the
Custodial Account and the Certificate Account may be made from time to time
for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of advances made, or certain expenses incurred, with respect
to
the Mortgage Loans.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor,
the
Servicer and the Trustee and the rights of the Certificateholders under the
Agreement at any time by the Depositor, the Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 66% of the Voting
Rights. Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all future Holders of this Certificate
and
of any Certificate issued upon the transfer hereof or in exchange herefor or
in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, without the consent of the Holders of any of the
Certificates.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
upon
surrender of this Certificate for registration of transfer at the offices or
agencies appointed by the Trustee as provided in the Agreement, duly endorsed
by, or accompanied by an assignment in the form below or other written
instrument of transfer in form satisfactory to the Trustee duly executed by,
the
Holder hereof or such Holder’s attorney duly authorized in writing, and
thereupon one or more new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No
transfer of this Certificate shall be made unless the transfer is made pursuant
to an effective registration statement under the Securities Act of 1933, as
amended (the “1933 Act”), and an effective registration or qualification under
applicable state securities laws, or is made in a transaction that does not
require such registration or qualification. In the event that such a transfer
of
this Certificate is to be made without registration or qualification, the
Trustee shall require receipt of (i) if such transfer is purportedly being
made
in reliance upon Rule 144A under the 1933 Act, written certifications from
the
Holder of the Certificate desiring to effect the transfer, and from such
Holder’s prospective transferee, substantially in the forms attached to the
Agreement as Exhibit F-1, and (ii) in all other cases, an Opinion of Counsel
satisfactory to it that such transfer may be made without such registration
or
qualification (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Trustee or the Servicer in their respective
capacities as such), together with copies of the written certification(s) of
the
Holder of the Certificate desiring to effect the transfer and/or such Holder’s
prospective transferee upon which such Opinion of Counsel is based. None of
the
Depositor or the Trustee is obligated to register or qualify the Class of
Certificates specified on the face hereof under the 1933 Act or any other
securities law or to take any action not otherwise required under the Agreement
to permit the transfer of such Certificates without registration or
qualification. Any Holder desiring to effect a transfer of this Certificate
shall be required to indemnify the Trustee, the Depositor and the Servicer
against any liability that may result if the transfer is not so exempt or is
not
made in accordance with such federal and state laws.
No
transfer of this Certificate or any interest therein shall be made to any
“employee benefit plan” as defined in Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended (“ERISA”), that is subject to Title I of
ERISA, any “plan” as defined in Section 4975(e)(1) of the Internal Revenue Code
of 1986, as amended (the “Code”), that is subject to Section 4975 of the Code or
any entity deemed to hold plan assets of any of the foregoing (each, a “Plan”),
any Person acting, directly or indirectly, on behalf of any such Plan or any
Person acquiring this Certificate with “plan assets” (within the meaning of the
Department of Labor regulation promulgated at 29 C. F. R. § 2510.3-101
(“Plan
Assets”))
of a
Plan, as certified by such transferee in the form of Exhibit
G
to the
Agreement, unless the Trustee is provided with an Opinion of Counsel acceptable
to and in form and substance satisfactory to the Depositor, the Trustee and
the
Servicer to the effect that the purchase and holding of this Certificate is
permissible under applicable law, will not constitute or result in any
non-exempt prohibited transaction under Section 406 of ERISA or Section 4975
of
the Code (or comparable provisions of any subsequent enactments) and will not
subject the Depositor, the Servicer, the Trustee or the Trust Fund to any
obligation or liability (including obligations or liabilities under ERISA or
Section 4975 of the Code) in addition to those undertaken in the Agreement,
which Opinion of Counsel shall not be an expense of the Depositor, the Servicer,
the Trustee or the Trust Fund.
If
this
Certificate or any interest therein is acquired or held in violation of the
provisions of Section 5.02(c) of the Agreement, the next preceding permitted
beneficial owner will be treated as the beneficial owner of this Certificate
retroactive to the date of transfer to the purported beneficial owner. Any
purported beneficial owner whose acquisition or holding of any this Certificate
or any interest therein was effected in violation of the provisions of Section
5.02(c) of the Agreement shall indemnify and hold harmless the Depositor, the
Servicer, the Trustee and the Trust Fund from and against any and all
liabilities, claims, costs or expenses incurred by those parties as a result
of
that acquisition or holding.
The
Certificates are issuable in fully registered form only without coupons in
Classes and denominations representing Percentage Interests specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, the Certificates are exchangeable for new Certificates of
the
same Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same. No service charge
will be made for any such registration of transfer or exchange of Certificates,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any transfer
or
exchange of Certificates.
Prior
to
registration of any transfer, sale or other disposition of this Certificate,
the
proposed transferee shall provide to the Trustee (i) an affidavit to the effect
that such transferee is any Person other than a Disqualified Organization or
the
agent (including a broker, nominee or middleman) of a Disqualified Organization,
and (ii) a certificate that acknowledges that (A) the Class R-II Certificates
have been designated as a residual interest in a REMIC, (B) it will include
in
its income a pro
rata share
of
the net income of the Trust Fund and that such income may be an “excess
inclusion,” as defined in the Code, that, with certain exceptions, cannot be
offset by other losses or benefits from any tax exemption, and (C) it expects
to
have the financial means to satisfy all of its tax obligations including those
relating to holding the Class R-II Certificates. Notwithstanding the
registration in the Certificate Register of any transfer, sale or other
disposition of this Certificate to a Disqualified Organization or an agent
(including a broker, nominee or middleman) of a Disqualified Organization,
such
registration shall be deemed to be of no legal force or effect whatsoever and
such Person shall not be deemed to be a Certificateholder for any purpose,
including, but not limited to, the receipt of distributions in respect of this
Certificate.
The
Holder of this Certificate, by its acceptance hereof, shall be deemed to have
consented to the provisions of Section 5.02 of the Agreement and to any
amendment of the Agreement deemed necessary by counsel of the Depositor to
ensure that the transfer of this Certificate to any Person other than a
Permitted Transferee or any other Person will not cause the Trust Fund to cease
to qualify as a REMIC or cause the imposition of a tax upon the
REMIC.
The
Depositor, the Servicer, the Trustee and any agent of the Depositor, the
Servicer or the Trustee may treat the Person in whose name this Certificate
is
registered as the owner hereof for all purposes, and none of the Depositor,
the
Servicer, the Trustee nor any such agent shall be affected by notice to the
contrary.
The
obligations created by the Agreement and the Trust Fund created thereby shall
terminate upon payment to the Certificateholders of all amounts held by the
Trustee and required to be paid to them pursuant to the Agreement following
the
earlier of (i) the final payment or other liquidation (or any advance with
respect thereto) of the last Mortgage Loan and REO Property remaining in REMIC
I
and (ii) the purchase by the party designated in the Agreement at a price
determined as provided in the Agreement from REMIC I of all the Mortgage Loans
and all property acquired in respect of such Mortgage Loans. The Agreement
permits, but does not require, the party designated in the Agreement to purchase
from REMIC I all the Mortgage Loans and all property acquired in respect of
any
Mortgage Loan at a price determined as provided in the Agreement. The exercise
of such right will effect early retirement of the Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Loans at the time of purchase being less than 10% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date.
The
recitals contained herein shall be taken as statements of the Depositor and
the
Trustee assumes no responsibility for their correctness.
Unless
the certificate of authentication hereon has been executed by the Trustee,
by
manual signature, this Certificate shall not be entitled to any benefit under
the Agreement or be valid for any purpose.
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
May 24, 2006
|
XXXXX
FARGO BANK, N.A., as Trustee
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Officer
|
|||||||||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within-mentioned
Agreement.
|
XXXXX
FARGO BANK, N.A., as Trustee
|
|||||||||||||
|
By:
|
|||||||||||||
|
Authorized
Signatory
|
|||||||||||||
ABBREVIATIONS
The
following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
|
TEN
COM -
|
as
tenants in common
|
UNIF
GIFT MIN ACT -
|
Custodian
|
|
(Cust) (Minor)
|
|||
|
TEN
ENT -
|
as
tenants by the entireties
|
under
Uniform Gifts
|
|
|
to
Minors Act
|
|||
|
JT
TEN -
|
as
joint tenants with right if
|
||
|
survivorship
and not as
|
(State)
|
||
|
tenants
in common
|
Additional
abbreviations may also be used though not in the above list.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
|
|
(Please
print or typewrite name, address including postal zip code, and Taxpayer
Identification Number of assignee) a Percentage Interest equal to ____%
evidenced by the within Asset-Backed Pass-Through Certificates and hereby
authorize(s) the registration of transfer of such interest to assignee on
the
Certificate Register of the Trust Fund.
I
(we)
further direct the Trustee to issue a new Certificate of a like Percentage
Interest and Class to the above named assignee and deliver such Certificate
to
the following address:
Dated:
|
Signature
by or on behalf of assignor
|
|
|
Signature
Guaranteed
|
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available
funds
|
to
|
,
|
|||||||
|
for
the account of
|
,
|
|||||||
|
account
number___________, or, if mailed by check, to
|
,
|
|||||||
|
Applicable
statements should be mailed to
|
||||||||
|
|
.
|
|||||||
|
This
information is provided by
|
,
|
|||||||
|
the
assignee named above, or
|
,
|
|||||||
|
as
its agent.
|
||||||||
EXHIBIT
B
[RESERVED]
EXHIBIT
C-1
FORM
OF
TRUST RECEIPT AND INITIAL CERTIFICATION
|
[DATE]
|
|
|
Stanwich
Asset Acceptance Company, L.L.C.
Seven
Greenwich Office Park
000
Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
|
|
|
Xxxxxxxxxx
Securities, LP
Seven
Greenwich Office Park
000
Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
|
|
Re:
|
Pooling
and Servicing Agreement, dated as of May 1, 2006, among Xxxxx Fargo
Bank,
N.A., as Trustee, Homecomings Financial Network, Inc. as Servicer
and
Stanwich Asset Acceptance Company, L.L.C. as
Depositor
|
Ladies
and Gentlemen:
In
accordance with the provisions of Section 2.02 of the above-referenced Pooling
and Servicing Agreement, the undersigned, as the Trustee, hereby certifies
that
it is holding the Mortgage Loans identified on the schedule attached hereto
for
the exclusive benefit of the Certificateholders pursuant to the terms and
conditions of the Pooling and Servicing Agreement, and it has received a
Mortgage Loan File with respect to each such Mortgage Loan (other than any
Mortgage Loan specifically identified on the exception report attached hereto)
and that with respect to each such Mortgage Loan: (i)
all
documents constituting part of such Mortgage Loan File required to be delivered
to it pursuant to the Pooling and Servicing Agreement are in its possession,
(ii) such documents have been reviewed by the Trustee and appear regular on
their face and relate to such Mortgage Loan and (iii) based on the Trustee’s
examination and only as to the foregoing, the information set forth in the
Mortgage Loan Schedule that corresponds to items (i), (iii) and (xvi) of the
definition of “Mortgage Loan Schedule” in the Pooling and Servicing Agreement
accurately reflects information set forth in the Mortgage Loan File. The Trustee
hereby confirms that it is holding each such Mortgage File for the exclusive
use
and benefit of the Certificateholders pursuant to the terms of the Pooling
and
Servicing Agreement.
Capitalized
terms used herein shall have the meaning ascribed to them in Appendix A of
the
Pooling and Servicing Agreement.
XXXXX
FARGO BANK, N.A., Trustee
By:___________________________
Name:
Title:
EXHIBIT
C-2
FORM
OF
FINAL TRUST RECEIPT
|
[DATE]
|
|
|
Stanwich
Asset Acceptance Company, L.L.C.
Seven
Greenwich Office Park
000
Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
|
|
|
Xxxxxxxxxx
Securities, LP
Seven
Greenwich Office Park
000
Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
|
|
|
Re:
|
Pooling
and Servicing Agreement, dated as of May 1, 2006, among Xxxxx Fargo
Bank,
N.A., as Trustee, Homecomings Financial Network, Inc.
as
|
Servicer
and Stanwich Asset Acceptance Company L.L.C., as Depositor
Ladies
and Gentlemen:
In
accordance
with the provisions of Section 2.02 of the above-referenced Pooling and
Servicing Agreement, the undersigned, as the Trustee, hereby certifies that
as
to each Mortgage Loan listed on the Mortgage Loan Schedule (other than any
Mortgage Loan paid in full or any Mortgage Loan listed on the attachment hereto)
it has reviewed the Mortgage Loan Files and has determined that (i) all
documents required to be delivered to it pursuant to Sections 2.01(i), (ii),
(iii), (iv), (v) and (vi) of the Pooling and Servicing Agreement are in its
possession; (ii) such documents have been reviewed by it and appear regular
on
their face and relate to such Mortgage Loan; (iii) based
on
the Trustee’s examination and only as to the foregoing, the information set
forth in the Mortgage Loan Schedule that corresponds to items (i), (iii) and
(xvi) of the definition of “Mortgage Loan Schedule” in the Pooling and Servicing
Agreement accurately reflects information set forth in the Mortgage Loan File;
and
(iv)
each Mortgage Note has been endorsed as provided in Section 2.02 of the Pooling
and Servicing Agreement and each Mortgage has been assigned in accordance with
Section 2.02 of the Pooling and Servicing Agreement. The Trustee makes no
representations as to (i) the validity, legality, enforceability, sufficiency,
recordability, due authorization or genuineness of any of the documents
contained in each Mortgage Loan File or of any of the Mortgage Loans or (ii)
the
collectability, insurability, perfection, priority, effectiveness or suitability
of any such Mortgage Loan.
The
Trustee hereby confirms that it is holding each such Mortgage Loan File for
the
exclusive use and benefit, and subject to the sole direction, of the
Certificateholders pursuant to the terms and conditions of the Pooling and
Servicing Agreement.
Capitalized
terms used herein shall have the meaning ascribed to them in Appendix A of
the
Pooling and Servicing Agreement.
XXXXX
FARGO BANK, N.A., Trustee
By:___________________________
Name:
Title:
EXHIBIT
D
MORTGAGE
LOAN PURCHASE AGREEMENT
This
is a
Mortgage Loan Purchase Agreement (this “Agreement”), dated May 17, 2006, among
RESIDENTIAL FUNDING CORPORATION, a Delaware corporation (“RFC”), XXXXXXXXXX
SECURITIES, LP, a Delaware limited partnership (the “Seller”), and STANWICH
ASSET ACCEPTANCE COMPANY, L.L.C., a Delaware limited liability company (the
“Purchaser”).
Preliminary
Statement
The
Seller intends to sell the Mortgage Loans (as hereinafter identified) to
the
Purchaser on the terms and subject to the conditions set forth in this
Agreement. The Purchaser intends to deposit the Mortgage Loans into a mortgage
pool comprising the Trust Fund. The Trust Fund will be evidenced by a single
series of mortgage pass-through certificates designated as Xxxxxxxxxx Mortgage
Loan Trust, Series 2006-RFC1 Asset-Backed Pass-Through Certificates (the
“Certificates”). The Certificates will consist of eighteen classes of
certificates and will be issued pursuant to a Pooling and Servicing Agreement,
dated as of May 1, 2006 (the “Pooling and Servicing Agreement”), among the
Depositor as depositor, Homecomings Financial Network, Inc. as servicer (the
“Servicer”), and Xxxxx Fargo Bank, N.A. as trustee (the “Trustee”). Capitalized
terms used but not defined herein shall have the meanings set forth in Appendix
A to the Pooling and Servicing Agreement.
The
parties hereto agree as follows:
Section
1. Agreement
to Purchase.
The
Seller agrees to sell and the Purchaser agrees to purchase, on or before
May 24,
2006 (the “Closing Date”), certain adjustable-rate and fixed-rate,
interest-only, balloon and fully-amortizing, first lien and second lien,
closed-end, subprime mortgage loans purchased by the Seller from RFC (the
“Mortgage Loans”), having a scheduled principal balance as of the close of
business on May 1, 2006 (the “Cut-off Date”) of approximately $743,362,000 (the
“Closing Balance”), after giving effect to all payments due on the Mortgage
Loans on or before the Cut-off Date, whether or not received including the
right
to any Prepayment Charges payable by the related Mortgagors in connection
with
any Principal Prepayments on the Mortgage Loans, on a servicing-retained
basis.
Section
2. Mortgage
Loan Schedule.
The
Purchaser and the Seller have agreed upon which of the Mortgage Loans are
to be
purchased by the Purchaser pursuant to this Agreement and the Seller will
prepare or cause to be prepared on or prior to the Closing Date a final schedule
(the “Closing Schedule”) that shall describe such Mortgage Loans and set forth
all of the Mortgage Loans to be purchased under this Agreement, including
the
Prepayment Charges. The Closing Schedule will conform to the requirements
set
forth in this Agreement and, with respect to the Mortgage Loans subject to
this
Agreement, to the definition of “Mortgage Loan Schedule” under the Pooling and
Servicing Agreement. The Closing Schedule shall be used as part of the Mortgage
Loan Schedule under the Pooling and Servicing Agreement and shall be based
on
information provided by RFC.
Section
3. Consideration.
(a) In
consideration for the Mortgage Loans to be purchased hereunder, the Purchaser
shall, as described in Section 8, pay to or upon the order of the Seller
in
immediately available funds an amount (the “Purchase Price”) equal to (i) the
net sale proceeds of the Class A Certificates and the Mezzanine Certificates
(other than the Class M-10 Certificates) and (ii) the Class M-10 Certificates,
the Class CE Certificates and the Class P Certificates.
(b) The
Purchaser or any assignee, transferee or designee of the Purchaser shall
be
entitled to all scheduled payments of principal due after the Cut-off Date,
all
other payments of principal due and collected after the Cut-off Date, and
all
payments of interest on the Mortgage Loans allocable to the period after
the
Cut-off Date. All scheduled payments of principal and interest due on or
before
the Cut-off Date and collected after the Cut-off Date shall belong to
RFC.
(c) Pursuant
to the Pooling and Servicing Agreement, the Purchaser will assign all of
its
right, title and interest in and to the Mortgage Loans, together with its
rights
under this Agreement, to the Trustee for the benefit of the
Certificateholders.
Section
4. Transfer
of the Mortgage Loans.
(a) Possession
of Mortgage Files.
The
Seller does hereby sell, and in connection therewith hereby assigns, to the
Purchaser, effective as of the Closing Date, without recourse but subject
to the
terms of this Agreement, all of its right, title and interest in, to and
under
the Mortgage Loans, including the related Prepayment Charges. The contents
of
each Mortgage File not delivered to the Purchaser or to any assignee, transferee
or designee of the Purchaser on or prior to the Closing Date are and shall
be
held in trust by the Seller for the benefit of the Purchaser or any assignee,
transferee or designee of the Purchaser. Upon the sale of the Mortgage Loans,
the ownership of each Mortgage Note, the related Mortgage and the other contents
of the related Mortgage File is vested in the Purchaser and the ownership
of all
records and documents with respect to the related Mortgage Loan prepared
by or
that come into the possession of the Seller on or after the Closing Date
shall
immediately vest in the Purchaser and shall be delivered immediately to the
Purchaser or as otherwise directed by the Purchaser.
(b) Delivery
of Mortgage Loan Documents.
The
Seller will, on or prior to the Closing Date, deliver or cause to be delivered
to the Purchaser or any assignee, transferee or designee of the Purchaser
each
of the following documents for each Mortgage Loan:
(i) the
original Mortgage Note, endorsed in blank or in the following form “Pay to the
order of Xxxxx Fargo Bank, N.A., as Trustee under the applicable agreement,
without recourse,” with all prior and intervening endorsements showing a
complete chain of endorsement from the originator to the Person so endorsing
to
the Trustee;
(ii) the
original Mortgage (noting the presence of the MIN of the Mortgage Loan and
language indicating that the Mortgage Loan is a MOM Loan if the Mortgage
Loan is
a MOM Loan) with evidence of recording thereon, and the original recorded
power
of attorney, if the Mortgage was executed pursuant to a power of attorney,
with
evidence of recording thereon;
(iii) unless
the Mortgage Loan is registered on the MERS® System, an original Assignment in
blank;
(iv) the
original recorded Assignment or Assignments showing a complete chain of
assignment from the originator to the Person assigning the Mortgage to the
Trustee (or to MERS if the Mortgage Loan is registered on the MERS® System and
noting the presence of MIN) as contemplated by the immediately preceding
clause
(iii); and
(v) the
original or copies of each assumption, modification or substitution agreement,
if any.
With
respect to a maximum of approximately 2.0% of the Original Mortgage Loans,
by
outstanding principal balance of the Original Mortgage Loans as of the Cut-off
Date, if any original Mortgage Note referred to in Section 4(b)(i) above
cannot
be located, the obligations of the Seller to deliver such documents shall
be
deemed to be satisfied upon delivery to the Purchaser of a photocopy of such
Mortgage Note, if available, with a lost note affidavit substantially in
the
form of Exhibit H attached to the Pooling and Servicing Agreement. If any
of the
original Mortgage Notes for which a lost note affidavit was delivered to
the
Purchaser is subsequently located, such original Mortgage Note shall be
delivered to the Purchaser within three Business Days.
If
any of
the documents referred to in Sections 4(b)(ii), (iii) or (iv) above has,
as of
the Closing Date, been submitted for recording but either (x) has not been
returned from the applicable public recording office or (y) has been lost
or
such public recording office has retained the original of such document,
the
obligations of the Seller to deliver such documents shall be deemed to be
satisfied upon (1) delivery to the Purchaser of a copy of each such document
certified by RFC in the case of (x) above or the applicable public recording
office in the case of (y) above to be a true and complete copy of the original
that was submitted for recording and (2) if such copy is certified by RFC,
delivery to the Purchaser promptly upon receipt thereof of either the original
or a copy of such document certified by the applicable public recording office
to be a true and complete copy of the original. Notice shall be provided
to the
Purchaser, the Trustee and the Rating Agencies by the Seller if delivery
pursuant to clause (2) above will be made more than 180 days after the Closing
Date. The Seller shall deliver or cause to be delivered to the Purchaser
promptly upon receipt thereof any other original documents constituting a
part
of a Mortgage File received with respect to any Mortgage Loan, including,
but
not limited to, any original documents evidencing an assumption or modification
of any Mortgage Loan.
Except
with respect to any Mortgage Loan for which MERS is identified on the Mortgage,
the Seller shall (at the expense of RFC) promptly (within sixty Business
Days
following the later of the Closing Date and the date of receipt by the Seller
of
the recording information for a Mortgage, but in no event later than ninety
days
following the Closing Date) submit or cause to be submitted for recording,
at no
expense to the Trust Fund, the Trustee or the Purchaser, in the appropriate
public office for real property records, each Assignment referred to in Sections
4(b)(iii) and (iv) above and the Seller shall execute each original Assignment
or cause each original Assignment to be executed in the following form: “Xxxxx
Fargo Bank, N.A., as Trustee under the applicable agreement.” In the event that
any such Assignment is lost or returned unrecorded because of a defect therein,
the Seller shall promptly prepare or cause to be prepared a substitute
Assignment or cure or cause to be cured such defect, as the case may be,
and
thereafter cause each such Assignment to be duly recorded.
Notwithstanding
the foregoing, however, for administrative convenience and facilitation of
servicing and to reduce closing costs, the Assignments shall not be required
to
be submitted for recording (except with respect to any Mortgage Loan located
in
Maryland) unless the Trustee or the Purchaser receives notice that such failure
to record would result in a withdrawal or a downgrading by any Rating Agency
of
the rating on any Class of Certificates; provided,
however,
the
Seller shall submit or cause to be submitted each Assignment for recording
in
the manner described above, except with respect to any Mortgage Loan for
which
MERS is identified on the Mortgage, at the expense of RFC and at no expense
to
the Trust Fund or the Trustee, upon the earliest to occur of: (i) written
direction by Holders of Certificates entitled to at least 25% of the Voting
Rights, (ii) the occurrence of a Servicer Event of Default, (iii) the occurrence
of a bankruptcy, insolvency or foreclosure relating to the Servicer, (iv)
the
occurrence of a servicing transfer as described in Section 7.02 of the Pooling
and Servicing Agreement, (v) with respect to any one Assignment, the occurrence
of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under
the
related Mortgage and (vi) any Mortgage Loan that is 90 days or more delinquent.
Upon receipt of written notice that recording of the Assignments is required
pursuant to one or more of the conditions set forth in the preceding sentence,
the Seller shall be required to deliver such Assignments or shall cause such
Assignments to be delivered within 30 days following receipt of such
notice.
Each
original document relating to a Mortgage Loan which is not delivered to the
Purchaser or its assignee, transferee or designee, if held by the Seller,
shall
be so held for the benefit of the Purchaser, its assignee, transferee or
designee.
(c) Acceptance
of Mortgage Loans.
The
documents delivered pursuant to Section 4(b) hereof shall be reviewed by
the
Purchaser or any assignee, transferee or designee of the Purchaser at any
time
before or after the Closing Date (and with respect to each document permitted
to
be delivered after the Closing Date, within seven days of its delivery) to
ascertain that all required documents have been executed and received and
that
such documents relate to the Mortgage Loans identified on the Mortgage Loan
Schedule.
(d) Transfer
of Interest in Agreements.
The
Purchaser has the right to assign its interest under this Agreement, in whole
or
in part, to the Trustee, as may be required to effect the purposes of the
Pooling and Servicing Agreement, without the consent of the Seller or RFC,
and
the assignee shall succeed to the rights and obligations hereunder of the
Purchaser. Any expense reasonably incurred by or on behalf of the Purchaser
or
the Trustee in connection with enforcing any obligations of the Seller or
RFC
under this Agreement will be promptly reimbursed by the Seller or RFC, as
applicable.
(e) Examination
of Mortgage Files.
Prior
to the Closing Date, the Seller shall either (i) deliver in escrow to the
Purchaser, or to any assignee, transferee or designee of the Purchaser for
examination, the Mortgage File pertaining to each Mortgage Loan or (ii) make
such Mortgage Files available to the Purchaser or to any assignee, transferee
or
designee of the Purchaser for examination. Such examination may be made by
the
Purchaser or the Trustee, and their respective designees, upon reasonable
notice
to the Seller during normal business hours before the Closing Date and within
60
days after the Closing Date. If any such person makes such examination prior
to
the Closing Date and identifies any Mortgage Loans that do not conform to
the
requirements of the Purchaser as described in this Agreement, such Mortgage
Loans shall be deleted from the Closing Schedule. The Purchaser may, at its
option and without notice to the Seller, purchase all or part of the Mortgage
Loans without conducting any partial or complete examination. The fact that
the
Purchaser or any person has conducted or has failed to conduct any partial
or
complete examination of the Mortgage Files shall not affect the rights of
the
Purchaser or any assignee, transferee or designee of the Purchaser to demand
repurchase or other relief as provided herein or under the Pooling and Servicing
Agreement.
Section
5. Representations,
Warranties and Covenants of RFC and the Seller.
(a) RFC
hereby represents and warrants to the Seller and the Purchaser, as of the
date
hereof and as of the Closing Date, and covenants, that:
(i) RFC
is
duly organized, validly existing and in good standing under the laws of the
state of Delaware and is and will remain in compliance with the laws of each
state in which any Mortgaged Property is located to the extent necessary
to
ensure the enforceability of each Mortgage Loan and the servicing of the
Mortgage Loan in accordance with the terms of this Agreement. No licenses
or
approvals obtained by RFC have been suspended or revoked by any court,
administrative agency, arbitrator or governmental body and no proceedings
are
pending which might result in such suspension or revocation;
(ii) RFC
has
the full power and authority to hold each Mortgage Loan, to sell each Mortgage
Loan, and to execute, deliver and perform, and to enter into and consummate,
all
transactions contemplated by this Agreement. RFC has duly authorized the
execution, delivery and performance of this Agreement, has duly executed
and
delivered this Agreement, and this Agreement, assuming due authorization,
execution and delivery by the Purchaser, constitutes a legal, valid and binding
obligation of RFC, enforceable against it in accordance with its terms except
to
the extent that (i) the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium, receivership, reorganization, or other similar laws
relating to creditors’ rights generally and (ii) the remedy of specific
performance and injunctive relief and other forms of equitable relief may
be
subject to the equitable defenses and to the discretion of the court before
which any proceeding therefore may be brought;
(iii) The
execution and delivery of this Agreement by RFC and the performance of and
compliance with the terms of this Agreement will not violate RFC’s articles of
incorporation or by-laws or constitute a material default under or result
in a
material breach or acceleration of, any material contract, agreement or other
instrument to which RFC is a party or which may be applicable to RFC or its
assets;
(iv) RFC
is
not in violation of, and the execution and delivery of this Agreement by
RFC and
its performance and compliance with the terms of this Agreement will not
constitute a violation with respect to, any order or decree of any court
or any
order or regulation of any federal, state, municipal or governmental agency
having jurisdiction over RFC or its assets, which violation might have
consequences that would materially and adversely affect the condition (financial
or otherwise) or the operation of RFC or its assets or might have consequences
that would materially and adversely affect the performance of its obligations
and duties hereunder;
(v) RFC
does
not believe, nor does it have any reason or cause to believe, that it cannot
perform each and every covenant of RFC contained in this Agreement;
(vi) There
are
no actions or proceedings against, or investigations of, RFC 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 RFC 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 RFC of, or
compliance by RFC with, this Agreement or the consummation 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
consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of RFC; and
(ix) Neither
this Agreement nor any written statement, report or other document prepared
and
furnished by RFC pursuant to this Agreement or in connection with the
transactions contemplated hereby contains any untrue statement of material
fact;
(b) The
Seller hereby represents and warrants to RFC and the Purchaser, as of the
date
hereof and as of the Closing Date, and covenants, that:
(i) The
Seller is duly organized, validly existing and in good standing as a limited
partnership under the laws of the State of Delaware with full limited
partnership power and authority to conduct its business as presently conducted
by it to the extent material to the consummation of the transactions
contemplated herein. The Seller has the full limited partnership power and
authority to own the Mortgage Loans and to transfer and convey the Mortgage
Loans to the Purchaser and has the full limited partnership power and authority
to execute and deliver, engage in the transactions contemplated by, and perform
and observe the terms and conditions of this Agreement;
(ii) The
Seller has duly authorized the execution, delivery and performance of this
Agreement, has duly executed and delivered this Agreement, and this Agreement,
assuming due authorization, execution and delivery by RFC and the Purchaser,
constitutes a legal, valid and binding obligation of the Seller, enforceable
against it in accordance with its terms except as the enforceability thereof
may
be limited by bankruptcy, insolvency or reorganization;
(iii) The
execution, delivery and performance of this Agreement by the Seller (x) does
not
conflict and will not conflict with, does not breach and will not result
in a
breach of and does not constitute and will not constitute a default (or an
event, which with notice or lapse of time or both, would constitute a default)
under (A) any terms or provisions of the certificate of formation or limited
partnership agreement of the Seller, (B) any term or provision of any material
agreement, contract, instrument or indenture, to which the Seller is a party
or
by which the Seller or any of its property is bound or (C) any law, rule,
regulation, order, judgment, writ, injunction or decree of any court or
governmental authority having jurisdiction over the Seller or any of its
property and (y) does not create or impose and will not result in the creation
or imposition of any lien, charge or encumbrance which would have a material
adverse effect upon the Mortgage Loans or any documents or instruments
evidencing or securing the Mortgage Loans;
(iv) No
consent, approval, authorization or order of, registration or filing with,
or
notice on behalf of the Seller to any governmental authority or court is
required, under federal laws or the laws of the State of Delaware, for the
execution, delivery and performance by the Seller of, or compliance by the
Seller with, this Agreement or the consummation by the Seller of any other
transaction contemplated hereby; provided, however, that the Seller makes
no
representation or warranty regarding federal or state securities laws in
connection with the sale or distribution of the Certificates;
(v) This
Agreement does not contain any untrue statement of material fact or omit
to
state a material fact necessary to make the statements contained herein not
misleading. The written statements, reports and other documents furnished
by the
Seller pursuant to this Agreement or in connection with the transactions
contemplated hereby taken in the aggregate do not contain any untrue statement
of material fact or omit to state a material fact necessary to make the
statements contained therein not misleading;
(vi) The
Seller is not in violation of, and the execution and delivery of this Agreement
by the Seller and its performance and compliance with the terms of this
Agreement will not constitute a violation with respect to, any order or decree
of any court or any order or regulation of any federal, state, municipal
or
governmental agency having jurisdiction over the Seller or its assets, which
violation might have consequences that would materially and adversely affect
the
condition (financial or otherwise) or the operation of the Seller or its
assets
or might have consequences that would materially and adversely affect the
performance of its obligations and duties hereunder;
(vii) The
Seller does not believe, nor does it have any reason or cause to believe,
that
it cannot perform each and every covenant contained in this
Agreement;
(viii) Immediately
prior to the sale of the Mortgage Loans to the Purchaser as herein contemplated,
the Seller will be the owner of the related Mortgage and the indebtedness
evidenced by the related Mortgage Note, and, upon the payment to the Seller
of
the Purchase Price, in the event that the Seller retains or has retained
record
title, the Seller shall retain such record title to each Mortgage, each related
Mortgage Note and the related Mortgage Files with respect thereto in trust
for
the Purchaser as the owner thereof from and after the date hereof;
(ix) There
are
no actions or proceedings against, or investigations known to it of, the
Seller
before any court, administrative or other tribunal (A) that might prohibit
its
entering into this Agreement, (B) seeking to prevent the sale of the Mortgage
Loans by the Seller or the consummation of the transactions contemplated
by this
Agreement or (C) that might prohibit or materially and adversely affect the
performance by the Seller of its obligations under, or validity or
enforceability of, this Agreement;
(x) The
consummation of the transactions contemplated by this Agreement are in the
ordinary course of business of the Seller, and the transfer, assignment and
conveyance of the Mortgage Notes and the Mortgages by the Seller are not
subject
to the bulk transfer or any similar statutory provisions;
(xi) The
Seller has not dealt with any broker, investment banker, agent or other person,
except for the Purchaser or any of its affiliates, that may be entitled to
any
commission or compensation in connection with the sale of the Mortgage
Loans;
(xii) There
is
no litigation currently pending or, to the best of the Seller’s knowledge
without independent investigation, threatened against the Seller that would
reasonably be expected to adversely affect the transfer of the Mortgage Loans,
the issuance of the Certificates or the execution, delivery, performance
or
enforceability of this Agreement, or that would result in a material adverse
change in the financial condition of the Seller;
(xiii) The
Seller is solvent and will not be rendered insolvent by the consummation
of the
transactions contemplated hereby. The Seller is not transferring any Mortgage
loan with any intent to hinder, delay or defraud any of its creditors;
and
(xiv) The
Seller makes each of the additional representations and warranties set forth
on
Schedule I hereto.
Section
6. Representations
and Warranties of RFC Relating to the Mortgage Loans.
RFC
hereby makes the representations and warranties with respect to each Mortgage
Loan set forth on Schedule A hereto.
Section
7. Repurchase
Obligation for Defective Documentation and for Breach of Representation and
Warranty.
(a) The
representations and warranties contained in Section 6 shall not be impaired
by
any review and examination of Mortgage Files or any failure on the part of
the
Seller or the Purchaser to review or examine such documents and shall inure
to
the benefit of any assignee, transferee or designee of the Purchaser, including
the Trustee for the benefit of holders of the Certificates.
Upon
discovery by the Seller, the Purchaser or any assignee, transferee or designee
of the Purchaser of any materially defective document in, or that any material
document was not transferred by or at the direction of the Seller (as listed
on
the Trustee’s Preliminary Exception Report) as part of any Mortgage File, or of
a breach of any of the representations and warranties contained in Section
6
that materially and adversely affects the value of any Mortgage Loan or the
interest therein of the Purchaser or the Purchaser’s assignee, transferee or
designee, the party discovering such breach shall give prompt written notice
to
the Seller (in the case of a missing document) or RFC and the Seller (in
the
case of a breach of any of the representations and warranties contained in
Section 6). Within sixty (60) days of its discovery or its receipt of notice
of
any such missing documentation that was not transferred to the Purchaser
as
described above, or of materially defective documentation, or of any such
breach
of a representation and warranty, RFC or the Seller (or their related designee),
as applicable, promptly shall deliver such missing document or cure such
defect
or breach in all material respects or, in the event RFC or the Seller (or
their
related designee) cannot deliver such missing document or cannot cure such
defect or breach, RFC or the Seller, as applicable, shall, within ninety
(90)
days of its discovery or receipt of notice, either (i) repurchase the affected
Mortgage Loan at the Purchase Price (as such term is defined in the Pooling
and
Servicing Agreement) or (ii) pursuant to the provisions of the Pooling and
Servicing Agreement, cause the removal of such Mortgage Loan from the Trust
Fund
and substitute one or more Qualified Substitute Mortgage Loans. RFC or the
Seller, as applicable, shall amend the Closing Schedule to reflect the
withdrawal of such Mortgage Loan from the terms of this Agreement and the
Pooling and Servicing Agreement. RFC or the Seller, as applicable, shall
deliver
to the Purchaser such amended Closing Schedule and shall deliver such other
documents as are required by this Agreement or the Pooling and Servicing
Agreement within five (5) days of any such amendment. Any repurchase pursuant
to
this Section 7(a) shall be accomplished by transfer to an account designated
by
the Purchaser of the amount of the Purchase Price in accordance with Section
2.03 of the Pooling and Servicing Agreement. Any repurchase required by this
Section shall be made in a manner consistent with Section 2.03 of the Pooling
and Servicing Agreement.
Notwithstanding
the foregoing, within 90 days of the earlier of discovery by RFC or receipt
of
notice by RFC of the breach of the representation of RFC set forth in Schedule
A
hereto which materially and adversely affects the interests of the Holders
of
the Class P Certificates in any Prepayment Charge, RFC shall pay the amount
of
the scheduled Prepayment Charge, for the benefit of the Holders of the Class
P
Certificates by remitting such amount to the Servicer for deposit into the
Custodial Account, net of any amount previously collected by the Servicer
or
paid by the Servicer, for the benefit of the Holders of the Class P Certificates
in respect of such Prepayment Charge.
(b) Notwithstanding
the foregoing, with respect to an alleged breach of a representation and
warranty which breach is covered by a title insurance policy, the Purchaser
shall use reasonable efforts to enforce the provisions of any related title
insurance policy prior to seeking a remedy against RFC or the Seller
hereunder.
(c) It
is
understood and agreed that the obligations of RFC or the Seller set forth
in
this Section 7 to cure or repurchase a defective Mortgage Loan constitute
the
sole remedies of the Purchaser against RFC or the Seller respecting a missing
document or a breach of the representations and warranties contained in Section
6.
Section
8. Closing;
Payment for the Mortgage Loans.
The
closing of the purchase and sale of the Mortgage Loans shall be held at the
New
York City office of Xxxxxxx Xxxxxxxx & Wood LLP at 10:00 a.m. New York City
time on the Closing Date.
The
closing shall be subject to each of the following conditions:
(a) All
of
the representations and warranties of the Seller and RFC under this Agreement
shall be true and correct in all material respects as of the date as of which
they are made and no event shall have occurred which, with notice or the
passage
of time, would constitute a default under this Agreement;
(b) The
Purchaser shall have received, or the attorneys of the Purchaser shall have
received in escrow (to be released from escrow at the time of closing), all
Closing Documents as specified in Section 9 of this Agreement, in such forms
as
are agreed upon and acceptable to the Purchaser, duly executed by all
signatories other than the Purchaser as required pursuant to the respective
terms thereof;
(c) The
Seller shall have delivered or caused to be delivered and released to the
Purchaser or to its designee, all documents (including without limitation,
the
Mortgage Loans) required to be so delivered by the Purchaser pursuant to
Section
2.01 of the Pooling and Servicing Agreement; and
(d) All
other
terms and conditions of this Agreement and the Pooling and Servicing Agreement
shall have been complied with.
Subject
to the foregoing conditions, the Purchaser shall deliver or cause to be
delivered to the Seller on the Closing Date, against delivery and release
by the
Seller to the Trustee of all documents required pursuant to the Pooling and
Servicing Agreement, the consideration for the Mortgage Loans as specified
in
Section 3 of this Agreement, by delivery to the Seller of the Purchase
Price.
Section
9. Closing
Documents.
Without
limiting the generality of Section 8 hereof, the closing shall be subject
to
delivery of each of the following documents:
(a) An
Officer’s Certificate of the Seller, dated the Closing Date, in form
satisfactory to and upon which the Purchaser and Bear, Xxxxxxx & Co. Inc.
(the “Representative”) may rely, and attached thereto copies of the certificate
of formation, limited partnership agreement and certificate of good standing
of
the Seller;
(b) An
Opinion of Counsel of the Seller, dated the Closing Date, in form satisfactory
to and addressed to the Purchaser and the Representative;
(c) An
Officer’s Certificate of RFC, dated the Closing Date, in form satisfactory to
and upon which the Purchaser and the Representative may rely, and attached
thereto copies of the certificate of incorporation, by-laws and certificate
of
good standing of RFC;
(d) Such
opinions of counsel of RFC required by the Master Mortgage Loan Purchase
and
Servicing Agreement, dated as of May 24, 2006, by and among Xxxxxxxxxx
Securities, LP, Residential Funding Corporation and Homecomings Financial
Network, Inc. (the “MMLPSA”);
(e) Such
opinions of counsel as the Rating Agencies or the Trustee may request in
connection with the sale of the Mortgage Loans by the Seller to the Purchaser
or
the Seller’s execution and delivery of, or performance under, this
Agreement;
(f) A
letter
from Deloitte & Touche LLP, certified public accountants, to the effect that
they have performed certain specified procedures as a result of which they
determined that certain information of an accounting, financial or statistical
nature set forth in the Purchaser’s prospectus supplement for Series 2006-RFC1,
dated May 19, 2006 (the “Prospectus Supplement”) relating to the Offered
Certificates contained under the captions “Summary—The Mortgage Pool,” “Legal
Proceedings,” “Risk Factors,” (to the extent of information concerning the
Mortgage Loans contained therein) and “Description of the Mortgage Pool” agrees
with the records of RFC; and
(g) Such
further information, certificates, opinions and documents as the Purchaser
or
the Representative may reasonably request.
Section
10. Costs.
The
Seller shall pay (or shall reimburse the Purchaser or any other Person to
the
extent that the Purchaser or such other Person shall pay) all costs and expenses
incurred in connection with the transfer and delivery of the Mortgage Loans,
including without limitation, recording fees, fees for title policy endorsements
and continuations and, except as set forth in Section 4(b), the fees for
recording Assignments.
The
Seller shall pay (or shall reimburse the Purchaser or any other Person to
the
extent that the Purchaser or such other Person shall pay) the fees and expenses
of the Seller’s accountants and attorneys, the costs and expenses incurred in
connection with producing the Servicer’s or any Subservicer’s loan loss,
foreclosure and delinquency experience, the costs and expenses incurred in
connection with obtaining the documents referred to in Section 9, the costs
and
expenses of printing (or otherwise reproducing) and delivering this Agreement,
the Pooling and Servicing Agreement, the Certificates, the prospectus and
Prospectus Supplement, and any private placement memorandum relating to the
Certificates and other related documents, the initial fees, costs and expenses
of the Trustee, the fees and expenses of the Purchaser’s counsel in connection
with the preparation of all documents relating to the securitization of the
Mortgage Loans, the filing fee charged by the Securities and Exchange Commission
for registration of the Certificates, the cost of outside special counsel
that
may be required by RFC and the fees charged by any rating agency to rate
the
Certificates. All other costs and expenses in connection with the transactions
contemplated hereunder shall be borne by the party incurring such
expense.
Section
11. [Reserved].
Section
12. [Reserved].
Section
13. Intent
of Parties, Mandatory Delivery; Grant of Security Interest.
The
sale of the Mortgage Loans as contemplated hereby is absolute and is intended
by
both the Seller and the Purchaser to constitute a sale of such Mortgage Loans
by
the Seller to the Purchaser. The sale and delivery on the Closing Date of
the
Mortgage Loans described on the Mortgage Loan Schedule in accordance with
the
terms and conditions of this Agreement is mandatory. It is specifically
understood and agreed that each Mortgage Loan is unique and identifiable
on the
date hereof and that an award of money damages would be insufficient to
compensate the Purchaser for the losses and damages incurred by the Purchaser
in
the event of the Seller’s failure to deliver the Mortgage Loans on or before the
Closing Date. The Seller hereby grants to the Purchaser a lien on and a
continuing security interest in the Seller’s interest in each Mortgage Loan and
each document and instrument evidencing each such Mortgage Loan to secure
the
performance by the Seller of its obligation hereunder, and the Seller agrees
that it holds such Mortgage Loans in custody for the Purchaser, subject to
the
Purchaser’s (i) right, prior to the Closing Date, to reject any Mortgage Loan to
the extent permitted by this Agreement, and (ii) obligation to deliver or
cause
to be delivered the consideration for the Mortgage Loans pursuant to Section
8
hereof. Any Mortgage Loans rejected by the Purchaser shall concurrently
therewith be released from the security interest created hereby. All rights
and
remedies of the Purchaser under this Agreement are distinct from, and cumulative
with, any other rights or remedies under this Agreement or afforded by law
or
equity and all such rights and remedies may be exercised concurrently,
independently or successively.
Notwithstanding
the foregoing, if on the Closing Date, each of the conditions set forth in
Section 8 hereof shall have been satisfied and the Purchaser shall not have
paid
or caused to be paid the Purchase Price, or any such condition shall not
have
been waived or satisfied and the Purchaser determines not to pay or cause
to be
paid the Purchase Price, the Purchaser shall immediately effect the re-delivery
of the Mortgage Loans, if delivery to the Purchaser has occurred, and the
security interest created by this Section 13 shall be deemed to have been
released.
Section
14. Notices.
All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given if personally delivered to or mailed by
registered mail, postage prepaid, or transmitted by fax and, receipt of which
is
confirmed by telephone, if to the Purchaser, addressed to Stanwich Asset
Acceptance Company, L.L.C., Seven Greenwich Office Park, 000 Xxxx Xxxxxx
Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxx 00000 (Telecopy (212-272-7206)) Attention: Xxxxxx
Xxxxx;
or such other address as may hereafter be furnished to RFC and the Seller
in
writing by the Purchaser; if to RFC, addressed to RFC at Residential Funding
Corporation, 0000
Xxxxxxxxxx Xxxx Xxxx., Xxxxx 000, Xxxxxxxxxxx, XX 00000, Attention: Structured
Finance,
or such
other address as may hereafter be furnished to the Seller and the Purchaser
in
writing by RFC; if to the Seller, addressed to the Seller at Xxxxxxxxxx
Securities, LP, Seven Greenwich Office Park, 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxxx 00000, (Telecopy (212-272-7206)) Attention: Xxxxx X. Xxxx, or
to
such other address as the Seller may designate in writing to the Purchaser
and
RFC.
Section
15. Severability
of Provisions.
Any
part, provision, representation or warranty of this Agreement that is prohibited
or that is held to be void or unenforceable shall be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation or warranty of this
Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating
the
remaining provisions hereof, and any such prohibition or unenforceability
in any
jurisdiction as to any Mortgage Loan shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof.
Section
16. Agreement
of Parties.
The
Seller, RFC and the Purchaser each agree to execute and deliver such instruments
and take such actions as either of the others may, from time to time, reasonably
request in order to effectuate the purpose and to carry out the terms of
this
Agreement and the Pooling and Servicing Agreement.
Section
17. Survival.
(a)
The
Seller agrees that the representations, warranties and agreements made by
it
herein and in any certificate or other instrument delivered pursuant hereto
shall be deemed to be relied upon by the Purchaser, notwithstanding any
investigation heretofore or hereafter made by the Purchaser or on its behalf,
and that the representations, warranties and agreements made by the Seller
herein or in any such certificate or other instrument shall survive the delivery
of and payment for the Mortgage Loans and shall continue in full force and
effect, notwithstanding any restrictive or qualified endorsement on the Mortgage
Notes and notwithstanding subsequent termination of this Agreement, the Pooling
and Servicing Agreement or the Trust Fund.
(b) RFC
agrees that the representations, warranties and agreements made by it herein
and
in any certificate or other instrument delivered pursuant hereto shall be
deemed
to be relied upon by the Seller and the Purchaser, notwithstanding any
investigation heretofore or hereafter made by the Seller or the Purchaser
or on
the behalf of either of them, and that the representations, warranties and
agreements made by RFC herein or in any such certificate or other instrument
shall continue in full force and effect, notwithstanding subsequent termination
of this Agreement, the Pooling and Servicing Agreement or the Trust
Fund.
Section
18. GOVERNING
LAW.
THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE
STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF (OTHER
THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW).
Section
19. Miscellaneous.
This
Agreement may be executed in two or more counterparts, each of which when
so
executed and delivered shall be an original, but all of which together shall
constitute one and the same instrument. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and assigns. This Agreement supersedes all prior agreements and
understandings relating to the subject matter hereof. Neither this Agreement
nor
any term hereof may be changed, waived, discharged or terminated orally,
but
only by an instrument in writing signed by the party against whom enforcement
of
the change, waiver, discharge or termination is sought. The headings in this
Agreement are for purposes of reference only and shall not limit or otherwise
affect the meaning hereof.
It
is the
express intent of the parties hereto that the conveyance of the Mortgage
Loans
by the Seller to the Purchaser as provided in Section 4 hereof be, and be
construed as, a sale of the Mortgage Loans by the Seller to the Purchaser
and
not as a pledge of the Mortgage Loans by the Seller to the Purchaser to secure
a
debt or other obligation of the Seller. However, in the event that,
notwithstanding the aforementioned intent of the parties, the Mortgage Loans
are
held to be property of the Seller, then (a) it is the express intent of the
parties that such conveyance be deemed a pledge of the Mortgage Loans by
the
Seller to the Purchaser to secure a debt or other obligation of the Seller
and
(b) (1) this Agreement shall also be deemed to be a security agreement within
the meaning of Articles 8 and 9 of the New York Uniform Commercial Code;
(2) the
conveyance provided for in Section 4 hereof shall be deemed to be a grant
by the
Seller to the Purchaser of a security interest in all of the Seller’s right,
title and interest in and to the Mortgage Loans and all amounts payable to
the
holders of the Mortgage Loans in accordance with the terms thereof and all
proceeds of the conversion, voluntary or involuntary, of the foregoing into
cash, instruments, securities or other property, including without limitation
all amounts, other than investment earnings, from time to time held or invested
in the Custodial Account whether in the form of cash, instruments, securities
or
other property; (3) the possession by the Purchaser or its agent of Mortgage
Notes, the related Mortgages and such other items of property that constitute
instruments, money, negotiable documents or chattel paper shall be deemed
to be
“possession” by the secured party for purposes of perfecting the security
interest pursuant to the New York Uniform Commercial Code; and (4) notifications
to persons holding such property and acknowledgments, receipts or confirmations
from persons holding such property shall be deemed notifications to, or
acknowledgments, receipts or confirmations from, financial intermediaries,
bailees or agents (as applicable) of the Purchaser for the purpose of perfecting
such security interest under applicable law. Any assignment of the interest
of
the Purchaser pursuant to Section 4(d) hereof shall also be deemed to be
an
assignment of any security interest created hereby. The Seller and the Purchaser
shall, to the extent consistent with this Agreement, take such actions as
may be
necessary to ensure that, if this Agreement were deemed to create a security
interest in the Mortgage Loans, such security interest would be deemed to
be a
perfected security interest of first priority under applicable law and will
be
maintained as such throughout the term of this Agreement and the Pooling
and
Servicing Agreement.
[Signatures
follow]
IN
WITNESS WHEREOF, the Purchaser, the Seller and RFC have caused their names
to be
signed by their respective officers thereunto duly authorized as of the date
first above written.
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XXXXXXXXXX
SECURITIES, LP, as Seller
By:
Xxxxxxxxxx Capital Management, LLC, as its general
partner
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By:
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Name:
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Title:
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STANWICH
ASSET ACCEPTANCE COMPANY, L.L.C., as Purchaser
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By:
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Name:
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Title:
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RESIDENTIAL
FUNDING CORPORATION
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By:
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Name:
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Title:
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Schedule
A
Capitalized
terms used but not defined in this Schedule A shall have the meanings set
forth
in the Master Mortgage Loan Purchase and Servicing Agreement, dated as of
May
24, 2006, by and among Xxxxxxxxxx Securities, LP, Residential Funding
Corporation and Homecomings Financial Network, Inc. (the “MMLPSA”).
(a)
Residential Funding Corporation hereby represents and warrants to Xxxxxxxxxx
Securities, LP and Stanwich Asset Acceptance Company, L.L.C. that as to each
Mortgage Loan as of the Closing Date or as of such other date as specified
herein:
(1) The
information set forth in the related Mortgage Loan Schedule and the Mortgage
Loan Data Tape delivered to the Purchaser is complete, true and correct as
of
the Cut-Off Date, unless another date is set forth in the Mortgage Loan
Schedule;
(2) The
Mortgage Loan is in compliance with all requirements set forth in the related
Commitment Letter, and the characteristics of the related Mortgage Loan Package
as set forth in the related Commitment Letter are true and correct: in the
event
of any conflict between the terms of any Commitment Letter and this Agreement,
the terms of the Commitment Letter shall control;
(3) Each
document or instrument in the related Mortgage File is in a form prescribed
in
the Program Guide and neither the Seller nor any Affiliate has made any
representations to a Mortgagor that are inconsistent with the mortgage
instruments used;
(4) Except
with respect to payments not yet 30 days past due, all payments required
to be
made up to the close of business on the related Closing Date for such Mortgage
Loan under the terms of the Mortgage Note have been made; the Seller and
the
Servicer have not advanced funds, or induced, solicited or knowingly received
any advance of funds from a party other than the owner of the related Mortgaged
Property, directly or indirectly, for the payment of any amount required
by the
Mortgage Note or Mortgage; and except with respect to payments not yet 30
days
past due, there has been no delinquency, exclusive of any period of grace,
in
any payment by the Mortgagor thereunder since the origination of the Mortgage
Loan;
(5) There
are
no delinquent taxes, ground rents, water and municipal charges, sewer rents,
assessments, leasehold payments, or other outstanding charges that will result
in a lien prior to, or equal with, the lien of the related
Mortgage;
(6) The
terms
of the Mortgage Note and the Mortgage have not been impaired, waived, altered
or
modified in any respect, except by written instruments, recorded, or in the
process of being recorded, in the applicable public recording office if
necessary to maintain the lien priority of the Mortgage, and which have been
delivered or will be delivered to the Custodian on behalf of the Purchaser;
the
substance of any such waiver, alteration or modification has been approved
by
the insurer under the Primary Insurance Policy or LPMI Policy, if any, and
the
title insurer, in each case to the extent required by the related policy,
and is
reflected on the related Mortgage Loan Schedule. No instrument of waiver,
alteration or modification has been executed, and no Mortgagor has been
released, in whole or in part, except in connection with an assumption agreement
approved by the insurer under the Primary Insurance Policy or LPMI Policy,
if
any, and the title insurer, in each case to the extent required by the policy,
and which assumption agreement has been delivered to the Custodian and the
terms
of which are reflected in the related Mortgage Loan Schedule;
(7) The
Mortgage Note and the Mortgage are not subject to any right of rescission,
set-off, counterclaim or defense, including, without limitation, the defense
of
usury, nor will the operation of any of the terms of the Mortgage Note and/or
the Mortgage, or the exercise of any right thereunder, render the Mortgage
Note
or the Mortgage unenforceable, in whole or in part, or subject to any right
of
rescission, set-off, counterclaim or defense, including the defense of usury
and
no such right of rescission, set-off, counterclaim or defense has been asserted
with respect thereto, and no Mortgagor was a debtor in any state or federal
bankruptcy or insolvency proceeding at the time the Mortgage Loan was
originated;
(8) All
buildings or other improvements upon the Mortgaged Property are insured by
an
insurer acceptable to Xxxxxx Xxx and Xxxxxxx Mac against loss by fire, hazards
of extended coverage and such other hazards as are customary in the area
where
the Mortgaged Property is located, pursuant to insurance policies conforming
to
the requirements of the Program Guide. All such insurance policies contain
a
standard mortgagee clause naming the Servicer, its successors and assigns
as
mortgagee and no premiums thereon are delinquent. If the Mortgaged Property
is
in an area identified on a Flood Hazard Map or Flood Insurance Rate Map issued
by the Federal Emergency Management Agency as having special flood hazards
(and
such flood insurance has been made available), a flood insurance policy meeting
the requirements of the current guidelines of the Federal Insurance
Administration with a generally acceptable insurance carrier, in the amount
described in the Program Guide (and to the extent required in the Program
Guide)
is in effect, which policy conforms to the requirements of Xxxxxx Mae and
Xxxxxxx Mac. The Mortgage obligates the Mortgagor thereunder to obtain and
maintain all such insurance at the Mortgagor’s cost and expense, and on the
Mortgagor’s failure to do so, authorizes the holder of the Mortgage to obtain
and maintain such insurance at Mortgagor’s cost and expense and to seek
reimbursement therefor from the Mortgagor. The hazard insurance policy is
the
valid and binding obligation of the insurer, is in full force and effect,
and
will be in full force and effect and inure to the benefit of the Servicer
upon
the consummation of the transactions contemplated by this Agreement. The
Seller
has not engaged in, and has no knowledge of the Mortgagor’s having engaged in,
any act or omission that would impair the coverage of any such policy, the
benefits of the endorsement provided for herein, or the validity and binding
effect of either, including, without limitation, no unlawful fee, commission,
kickback or other unlawful compensation or value of any kind has been or
will be
received, retained or realized by any attorney, firm or other person or entity,
and no such unlawful items have been received, retained or realized by the
Seller;
(9) Each
Mortgage Loan and, if any, the related Prepayment Charge complied in all
material respects with any and all requirements of any federal, state or
local
law including, without limitation, usury, truth in lending, real estate
settlement procedures, consumer credit protection, equal credit opportunity,
fair housing or disclosure laws; all predatory and abusive lending laws
applicable to the origination and servicing of mortgage loans of a type similar
to the Mortgage Loans have been complied with and the consummation of the
transactions contemplated hereby will not involve the violation of any such
laws
or regulations, and the Seller shall maintain in its possession, available
for
the Purchaser’s inspection, and shall deliver to the Purchaser upon demand,
evidence of compliance with all such requirements;
(10) The
Mortgage has not been satisfied, cancelled, subordinated or rescinded, in
whole
or in part, and the Mortgaged Property has not been released from the lien
of
the Mortgage, in whole or in part, nor has any instrument been executed that
would effect any such satisfaction, cancellation, subordination, rescission
or
release. Neither the Seller nor the Servicer has waived the performance by
the
Mortgagor of any action, if the Mortgagor’s failure to perform such action would
cause the Mortgage Loan to be in default, nor has the Seller or the Servicer
waived any default resulting from any action or inaction by the
Mortgagor;
(11) The
related Mortgage is properly recorded and is a valid, existing and enforceable
(A) first lien and first priority security interest with respect to each
Mortgage Loan which is indicated by the Servicer to be a First Lien (as
reflected on the related Mortgage Loan Schedule), or (B) second lien and
second
priority security interest with respect to each Mortgage Loan which is indicated
by the Servicer to be a Second Lien Mortgage Loan (as reflected on the Mortgage
Loan Schedule), in either case, on the Mortgaged Property, including all
buildings and improvements on the Mortgaged Property and all additions,
alterations and replacements made at any time with respect to the foregoing.
The
lien of the Mortgage is subject only to (a) the lien of current real property
taxes and assessments not yet due and payable, (b) covenants, conditions
and
restrictions, rights of way, easements and other matters of the public record
as
of the date of recording that are permitted under Accepted Servicing Practices
and acceptable to prudent mortgage lending institutions generally and
specifically referred to in the lender’s title insurance policy delivered upon
origination of the Mortgage Loan and which do not adversely affect the Appraised
Value of the Mortgaged Property, (c) other matters to which like properties
are
commonly subject which do not materially interfere with the benefits of the
security intended to be provided by the Mortgage or the use, enjoyment, value
or
marketability of the related Mortgaged Property and (d) with respect to each
Mortgage Loan that is indicated by the Servicer to be a Second Lien Mortgage
Loan (as reflected on the Mortgage Loan Schedule), a First Lien on the Mortgaged
Property. Any security agreement, chattel mortgage or equivalent document
related to and delivered in connection with the Mortgage Loan establishes
and
creates a valid, existing and enforceable (A) first lien and first priority
security interest with respect to each Mortgage Loan which is indicated by
the
Servicer to be a First Lien (as reflected on the related Mortgage Loan
Schedule), or (B) second lien and second priority security interest with
respect
to each Mortgage Loan which is indicated by the Servicer to be a Second Lien
Mortgage Loan (as reflected on the Mortgage Loan Schedule), in either case,
on
the property described therein and the Seller has full right to sell and
assign
the same to the Purchaser;
(12) The
Mortgage Note and the related Mortgage are genuine and each is the legal,
valid
and binding obligation of the Mortgagor and enforceable by the Purchaser
against
such Mortgagor in accordance with its terms, except only as such enforcement
may
be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors’ rights generally and by
law;
(13) All
parties to the Mortgage Note, the Mortgage and any other related agreement
had
legal capacity to enter into the Mortgage Loan, to execute and deliver the
Mortgage Note, the Mortgage and any other related agreement and to pledge,
grant
or convey the interest therein purported to be conveyed, and the Mortgage
Note,
the Mortgage and any other related agreement have been duly and properly
executed by such parties. The Mortgagor is a natural person;
(14) The
proceeds of the Mortgage Loan have been fully disbursed to or for the account
of
the Mortgagor and there is no obligation for the Mortgagee to advance additional
funds thereunder and any and all requirements as to completion of any on-site
or
off-site improvement and as to disbursements of any escrow funds therefor
have
been complied with. All costs, fees and expenses incurred in making or closing
the Mortgage Loan and the recording of the Mortgage have been paid, and the
Mortgagor is not entitled to any refund of any amounts paid or due to the
Mortgagee pursuant to the Mortgage Note or Mortgage;
(15) No
Mortgagor was required to purchase any credit life, disability, accident
or
health insurance product as a condition of obtaining the extension of credit.
No
Mortgagor obtained a prepaid single premium credit life, disability, accident
or
health insurance policy in connection with the origination of the Mortgage
Loan.
No proceeds from any Mortgage Loan were used to purchase single-premium credit
insurance policies;
(16) Immediately
prior to the transfer and assignment herein contemplated, the Seller held
good,
marketable and indefeasible title to, and was the sole legal, beneficial
and
equitable owner of the Mortgage Loan. The Seller has full right and authority
under all governmental and regulatory bodies having jurisdiction over such
Seller, subject to no interest or participation of, or agreement with, any
party, to transfer and sell the Mortgage Loan to the Purchaser pursuant to
this
Agreement free and clear of any encumbrance or right of others, equity, lien,
pledge, charge, mortgage, claim, participation interest or security interest
of
any nature (collectively, a “Lien”);
and
immediately upon the transfers and assignments herein contemplated, the Seller
shall have transferred and sold all of its right, title and interest in and
to
each Mortgage Loan and the Purchaser will hold good, marketable and indefeasible
title to, and be the owner of, each Mortgage Loan subject to no Lien other
than
any Lien arising through the Purchaser;
(17) All
parties which have had any interest in the Mortgage Loan, whether as originator,
mortgagee, assignee, pledgee or otherwise, are (or, during the period in
which
they held and disposed of such interest, were): (A) organized under the laws
of
such state, or (B) qualified to do business in such state, or (C) federal
savings and loan associations or national banks having principal offices
in such
state, or (D) not doing business in such state so as to require qualification
or
licensing, or (E) not otherwise required to be licensed in such state. All
parties which have had any interest in the Mortgage Loan were in compliance
with
any and all applicable “doing business” and licensing requirements of the laws
of the state wherein the Mortgaged Property is located or were not required
to
be licensed in such state;
(18) On
the
date of its origination and on the Closing Date, the Mortgage Loan was and
is
covered by an American Land Title Association (“ALTA”)
lender’s title insurance policy (which, in the case of an Adjustable Rate
Mortgage Loan has an adjustable rate mortgage endorsement in the form of
ALTA
6.0 or 6.1) acceptable to Xxxxxx Xxx and Xxxxxxx Mac, issued by a title insurer
acceptable to Xxxxxx Mae and Xxxxxxx Mac and qualified to do business in
the
jurisdiction where the Mortgaged Property is located, insuring (subject to
the
exceptions contained above in (17)(a) and (b) and, with respect to each Mortgage
Loan which is indicated by the Servicer to be a Second Lien Mortgage Loan
(as
reflected on the Mortgage Loan Schedule), clause (d)) the Seller, its successors
and assigns as to the first priority lien of the Mortgage in the original
principal amount of the Mortgage Loan and, with respect to any Adjustable
Rate
Mortgage Loan, against any loss by reason of the invalidity or unenforceability
of the lien resulting from the provisions of the Mortgage providing for
adjustment in the Mortgage Interest Rate and Monthly Payment. Additionally,
such
lender’s title insurance policy affirmatively insures ingress and egress to and
from the Mortgaged Property, and against encroachments by or upon the Mortgaged
Property or any interest therein. The Servicer is the sole insured of such
lender’s title insurance policy, and such lender’s title insurance policy is
valid and remains in full force and effect and will be in full force and
effect
upon the consummation of the transactions contemplated by this Agreement.
No
claims have been made under such lender’s title insurance policy, and no prior
holder of the related Mortgage, including the Seller, has done, by act or
omission, anything which would impair the coverage of such lender’s title
insurance policy including, without limitation, no unlawful fee, commission,
kickback or other unlawful compensation or value of any kind has been or
will be
received, retained or realized by any attorney, firm or other person or entity,
and no such unlawful items have been received, retained or realized by the
Seller;
(19) There
is
no default, breach, violation or event of acceleration existing under the
Mortgage or the Mortgage Note and no event that, with the passage of time
or
with notice and the expiration of any grace or cure period, would constitute
a
default, breach, violation or event of acceleration, and neither the Seller
nor
the Servicer nor any other entity involved in originating or servicing a
Mortgage Loan has waived any default, breach, violation or event of
acceleration. With respect to each Mortgage Loan which is indicated by the
Servicer to be a Second Lien Mortgage Loan (as reflected on the Mortgage
Loan
Schedule) (i) the First Lien is in full force and effect, (ii) there is no
default, breach, violation or event of acceleration existing under such First
Lien mortgage or the related mortgage note, (iii) no event which, with the
passage of time or with notice and the expiration of any grace or cure period,
would constitute a default, breach, violation or event of acceleration
thereunder, and either (A) the First Lien mortgage contains a provision which
allows or (B) applicable law requires, the mortgagee under the Second Lien
Mortgage Loan to receive notice of, and affords such mortgagee an opportunity
to
cure any default by payment in full or otherwise under the First Lien
mortgage;
(20) There
are
no mechanics’ or similar liens or claims which have been filed for work, labor
or material (and no rights are outstanding that under law could give rise
to
such lien) affecting the related Mortgaged Property that are or may be liens
prior to, or equal or coordinate with, the lien of the related
Mortgage;
(21) As
of the
date of origination of the Mortgage Loan, all improvements which were considered
in determining the Appraised Value of the related Mortgaged Property lay
wholly
within the boundaries and building restriction lines of the Mortgaged Property,
and no improvements on adjoining properties encroach upon the Mortgaged
Property;
(22) Principal
payments on the Mortgage Loan shall commence (with respect to any newly
originated Mortgage Loans) or commenced no more than sixty days after the
proceeds of the Mortgage Loan were disbursed. The Mortgage Loan bears interest
at the Mortgage Interest Rate. With respect to each Mortgage Loan, the Mortgage
Note is payable, except as indicated on the Mortgage Loan Schedule, in Monthly
Payments that, in the case of a Fixed Rate Mortgage Loan, are sufficient
to
fully amortize the original principal balance over the original term thereof,
of
not more than 40 years, and to pay interest at the related Mortgage Interest
Rate, and, in the case of an Adjustable Rate Mortgage Loan, are changed on
each
Adjustment Date, and in any case, are sufficient to fully amortize the original
principal balance over the original term thereof and to pay interest at the
related Mortgage Interest Rate. The Index for each Adjustable Rate Mortgage
Loan
is as defined in the related Commitment Letter and the Mortgage Loan Schedule.
With respect to each Mortgage Loan identified on the Mortgage Loan Schedule
as
an interest-only Mortgage Loan, the interest-only period shall not exceed
the
period specified on the Mortgage Loan Schedule and following the expiration
of
such interest-only period, the remaining Monthly Payments shall be sufficient
to
fully amortize the original principal balance over the remaining term of
the
Mortgage Loan. The Mortgage Note does not permit negative amortization. No
Mortgage Loan is a Convertible Mortgage Loan;
(23) The
origination practices used by each originator and collection practices used
by
the Servicer with respect to each Mortgage Note and Mortgage have been in
all
respects legal, proper, prudent and customary in the mortgage origination
and
servicing industry and in accordance with Accepted Servicing Practices. The
Mortgage Loan has been serviced by the Servicer and any predecessor servicer
in
accordance with all applicable laws, rules, regulations and the terms of
the
Mortgage Note and Mortgage;
(24) With
respect to escrow deposits and Escrow Payments (other than with respect to
each
Mortgage Loan which is indicated by the Seller to be a Second Lien Mortgage
Loan
and for which the mortgagee under the First Lien is collecting Escrow Payments
(as reflected on the Mortgage Loan Schedule)), if any, all such payments
are in
the possession of, or under the control of, the Servicer and there exist
no
deficiencies in connection therewith for which customary arrangements for
repayment thereof have not been made. An escrow of funds is not prohibited
by
applicable law with respect to any Mortgage Loan for which such escrow of
funds
has been established. No escrow deposits or Escrow Payments or other charges
or
payments due the Servicer have been capitalized under any Mortgage or the
related Mortgage Note and no such escrow deposits or Escrow Payments are
being
held by the Servicer for any work on a Mortgaged Property which has not been
completed;
(25) All
Mortgage Interest Rate adjustments have been made in strict compliance with
state and federal law and the terms of the related Mortgage Note. If, pursuant
to the terms of the Mortgage Note, another index was selected for determining
the Mortgage Rate, the same index was used with respect to each Mortgage
Note
which required a new index to be selected, and such selection did not conflict
with the terms of the related Mortgage Note. The Seller or the Servicer executed
and delivered any and all notices required under applicable law and the terms of
the related Mortgage Note and Mortgage regarding the Mortgage Interest Rate
and
the monthly payment adjustments. Any interest required to be paid pursuant
to
state, federal and local law has been properly paid and credited;
(26) The
Mortgaged Property is undamaged by waste, earthquake or earth movement,
windstorm, flood, tornado or other casualty, so as to affect adversely the
value
of the Mortgaged Property as security for the Mortgage Loan or the use for
which
the premises were intended and there is no proceeding pending or threatened
for
the total or partial condemnation thereof nor is such a proceeding currently
occurring;
(27) The
Mortgage and related Mortgage Note contain customary and enforceable provisions
such as to render the rights and remedies of the holder thereof adequate
for the
realization against the Mortgaged Property of the benefits of the security
provided thereby, including, (a) in the case of a Mortgage designated as
a deed
of trust, by trustee’s sale, and (b) otherwise by judicial or non-judicial
foreclosure. Upon default by a Mortgagor on a Mortgage Loan and foreclosure
on,
or trustee’s sale of, the Mortgaged Property pursuant to the proper procedures,
the holder of the Mortgage Loan will be able to deliver good and merchantable
title to the Mortgaged Property. The Mortgagor has not been subject to any
bankruptcy proceeding or foreclosure proceeding and the Mortgagor has not
filed
for protection under applicable bankruptcy laws except as permitted under
the
Program Guide. There is no homestead or other exemption available to the
Mortgagor which would materially interfere with the right to sell the Mortgaged
Property at a trustee’s sale or the right to foreclose the Mortgage subject to
applicable federal and state laws and judicial precedent with respect to
bankruptcy and rights of redemption. The Mortgagor has not notified the Servicer
and the Servicer has no knowledge of any relief requested or allowed to the
Mortgagor under the Servicemembers Civil Relief Act, as amended;
(28) The
Mortgage Loan was underwritten in accordance with the Program Guide in effect
at
the time the Mortgage Loan was originated;
(29) The
Mortgage Note is not and has not been secured by any collateral except the
lien
of the corresponding Mortgage on the Mortgaged Property and the security
interest of any applicable security agreement or chattel mortgage;
(30) The
Mortgage Note is comprised of one original promissory note;
(31) The
Mortgage File contains an appraisal of the related Mortgaged Property which
(A)
satisfied the standards of Xxxxxx Xxx and Xxxxxxx Mac, (B) was conducted
generally in accordance with the Seller’s Program Guide and included an
assessment of the fair market value of the related Mortgaged Property at
the
time of such appraisal, and (C) was made and signed, prior to the approval
of
the Mortgage Loan application, by a qualified appraiser, duly appointed by
the
Seller or the Servicer, who had no interest, direct or indirect in the Mortgaged
Property or in any loan made on the security thereof, whose compensation
is not
affected by the approval or disapproval of the Mortgage Loan and who met
the
minimum qualifications of Xxxxxx Mae and Xxxxxxx Mac. Each appraisal of the
Mortgage Loan was made in accordance with the relevant provisions of the
Financial Institutions Reform, Recovery, and Enforcement Act of
1989;
(32) In
the
event the Mortgage constitutes a deed of trust, a trustee, duly qualified
under
applicable law to serve as such, has been properly designated and currently
so
serves and is named in the Mortgage, and no fees or expenses are or will
become
payable by the Purchaser to the trustee under the deed of trust, except in
connection with a trustee’s sale after default by the Mortgagor;
(33) No
Mortgage Loan contains provisions pursuant to which Monthly Payments are
(a)
paid or partially paid with funds deposited in any separate account established
by the Seller, the Servicer, the Mortgagor, or anyone on behalf of the
Mortgagor, (b) paid by any source other than the Mortgagor or (c) contains
any
other similar provisions which may constitute a “buydown” provision. The
Mortgage Loan is not a graduated payment mortgage loan and the Mortgage Loan
does not have a shared appreciation or other contingent interest
feature;
(34) To
the
extent required by law and the Program Guide, the Mortgagor has executed
a
statement to the effect that the Mortgagor has received all disclosure materials
required by all applicable law with respect to the making of fixed rate mortgage
loans in the case of Fixed Rate Mortgage Loans, and adjustable rate mortgage
loans in the case of Adjustable Rate Mortgage Loans and rescission materials
with respect to Refinanced Mortgage Loans, and such statement is and will
remain
in the Mortgage File;
(35) No
Mortgage Loan was made for the purpose of (a) a construction loan or
rehabilitation of a Mortgaged Property or (b) facilitating the trade-in or
exchange of a Mortgaged Property;
(36) To
the
best of the Seller’s knowledge, the Mortgaged Property is lawfully occupied
under applicable law; all inspections, licenses and certificates required
to be
made or issued with respect to all occupied portions of the Mortgaged Property
and, with respect to the use and occupancy of the same, including but not
limited to certificates of occupancy and fire underwriting certificates,
have
been made or obtained from the appropriate authorities. No improvement located
on or being part of any Mortgaged Property is in violation of any applicable
zoning law or regulation. To the best of the Seller’s knowledge and with respect
to each Mortgage Loan that is covered by a Primary Mortgage Insurance Policy,
the improvement(s) located on or being part of the related Mortgaged Property
were constructed in accordance with the specifications set forth in the original
construction plans;
(37) No
error,
omission, misrepresentation, negligence or fraud with respect to the
origination, modification or amendment of any Mortgage Loan has taken place
on
the part of any person, including without limitation the Mortgagor, any
appraiser, any builder or developer, or any other party involved in the
origination of the Mortgage Loan or in the application of any insurance in
relation to such Mortgage Loan. The Seller has reviewed all of the documents
constituting the Servicing File and has made such inquiries as it deems
necessary to make and confirm the accuracy of the representations set forth
herein;
(38) Each
original Mortgage was recorded and all subsequent assignments of the original
Mortgage (other than the assignment to the Purchaser) have been recorded,
or are
in the process of being recorded, in the appropriate jurisdictions wherein
such
recordation is necessary to perfect the lien thereof as against creditors
of the
Seller. The Assignment of Mortgage is in recordable form and is acceptable
for
recording under the laws of the jurisdiction in which the Mortgaged Property
is
located;
(39) Any
principal advances made to the Mortgagor after the date of origination of
a
Mortgage Loan but prior to the Cut-off Date have been consolidated with the
outstanding principal amount secured by the Mortgage, and the secured principal
amount, as consolidated, bears a single interest rate and single repayment
term
reflected on the Mortgage Loan Schedule. The lien of the Mortgage securing
the
consolidated principal amount is expressly insured as having (A) first lien
priority with respect to each Mortgage Loan which is indicated by the Servicer
to be a First Lien (as reflected on the Mortgage Loan Schedule) or (B) second
lien priority with respect to each Mortgage Loan which is indicated by the
Seller to be a Second Lien Mortgage Loan (as reflected on the Mortgage Loan
Schedule), in either case, by a title insurance policy, an endorsement to
the
policy insuring the mortgagee’s consolidated interest or by other title evidence
acceptable to Xxxxxx Mae and Xxxxxxx Mac. The consolidated principal amount
does
not exceed the original principal amount of the related Mortgage
Loan;
(40) Except
as
specified in the Mortgage Loan Schedule, no Mortgage Loan has a balloon payment
feature;
(41) Each
Mortgaged Property consists of a fee simple or leasehold interest in a single
parcel of real property improved by a Residential Dwelling. If the Residential
Dwelling on the Mortgaged Property is a condominium unit or a unit in a planned
unit development (other than a de minimis planned unit development) such
condominium or planned unit development project meets the eligibility
requirements of Xxxxxx Mae and Xxxxxxx Mac;
(42) With
respect to each Mortgage Loan secured by a manufactured home: (A) the
manufactured home is permanently affixed to a foundation which is suitable
for
the soil conditions of the site; (B) all foundations, both perimeter and
interior, have footings that are located below the frost line; (C) any wheels,
axles and trailer hitches are removed from such manufactured home; and (D)
the
related Mortgage Loan is covered under a standard real estate title insurance
policy that identifies the manufactured home as part of the real property
and
insures or indemnifies against any loss if the manufactured home is determined
not to be part of the real property;
(43) Each
Mortgage Loan originated in the state of Texas pursuant to Article XVI,
Section 50(a)(6) of the Texas Constitution (a “Texas
Refinance Loan”)
has
been originated in compliance with the provisions of Article XVI, Section
50(a)(6) of the Texas Constitution, Texas Civil Statutes and the Texas Finance
Code. With respect to each Texas Refinance Loan that is a Cash Out Refinancing,
the related Mortgage Loan Documents state that the Mortgagor may prepay such
Texas Refinance Loan in whole or in part without incurring a Prepayment Charge.
The Seller does not collect any such Prepayment Charges in connection with
any
such Texas Refinance Loan;
(44) Interest
on each Mortgage Loan is calculated on the basis of a 360-day year consisting
of
twelve 30-day months;
(45) There
is
no pending action or proceeding directly involving the Mortgaged Property
in
which compliance with any environmental law, rule or regulation is an issue;
there is no violation of any environmental law, rule or regulation with respect
to the Mortgaged Property; and nothing further remains to be done to satisfy
in
full all requirements of each such law, rule or regulation constituting a
prerequisite to use and enjoyment of said property;
(46) The
Seller shall, at its own expense, cause each Mortgage Loan to be covered
by a
“life of loan” Tax Service Contract which is assignable to the Purchaser or its
designee at no cost to the Purchaser or its designee; provided,
however,
that if
the Seller fails to purchase such Tax Service Contract, the Seller shall
be
required to reimburse the Purchaser for all costs and expenses incurred by
the
Purchaser in connection with the purchase of any such Tax Service
Contract;
(47) Each
Mortgage Loan is covered by a “life of loan” Flood Zone Service Contract which
is assignable to the Purchaser or its designee at no cost to the Purchaser
or
its designee or, for each Mortgage Loan not covered by such Flood Zone Service
Contract, the Seller agrees to purchase such Flood Zone Service
Contract;
(48) None
of
the Mortgage Loans are classified as (a) “high cost” loans under the Home
Ownership and Equity Protection Act of 1994 or (b) “high cost,” “threshold,”
“covered” or “predatory” loans under any other applicable federal, state or
local law (including without limitation any regulation or ordinance) (or
a
similarly classified loan using different terminology under a law imposing
heightened regulatory scrutiny or additional legal liability for residential
mortgage loans having high interest rates, points and/or fees);
(49) The
Seller has no knowledge of any circumstances or condition with respect to
the
Mortgage, the Mortgaged Property, the Mortgagor or the Mortgagor’s credit
standing that can reasonably be expected to cause the Mortgage Loan to become
delinquent, adversely affect the value of the Mortgage Loan, giving due
consideration to the facts that the Mortgage Loans are sub-prime Mortgage
Loans
and that some of the loans are second-lien loans;
(50) The
Servicer and any predecessor servicer with respect to a Mortgage Loan has
fully
furnished, in accordance with the Fair Credit Reporting Act and its implementing
regulations and Accepted Servicing Practices, accurate and complete information
(e.g., favorable and unfavorable) on its borrower credit files to Equifax,
Experian and Trans Union Credit Information Company (three of the credit
repositories), on a monthly basis;
(51) Each
First Lien Mortgage Loan identified on the Mortgage Loan Schedule as subject
to
a Primary Mortgage Insurance Policy will be subject to a Primary Mortgage
Insurance Policy, issued by a Qualified Insurer, which insures that portion
of
the Mortgage Loan in excess of the portion of the Appraised Value of the
Mortgaged Property required by Xxxxxx Xxx. All provisions of such Primary
Insurance Policy have been and are being complied with, such policy is in
full
force and effect, and all premiums due thereunder have been paid. Any First
Lien
Mortgage subject to any such Primary Insurance Policy obligates the Mortgagor
thereunder to maintain such insurance and to pay all premiums and charges
in
connection therewith upon the terms specified in the Program Guide. The Mortgage
Interest Rate for the Mortgage Loan does not include any such insurance
premium;
(52) The
Seller's verification of the source of down payment has been performed in
accordance with Exhibit
16;
(53) Each
Mortgage Loan constitutes a “qualified mortgage” under
Section 860G(a)(3)(A) of the Code and Treasury Regulation Section
1.860G-2(a)(1);
(54) Each
Mortgage Loan has a valid and original Credit Score of not less than
500;
(55) Each
Mortgage Loan was originated on or after the date set forth in the related
Commitment Letter;
(56) No
Mortgage Loan had an original term to maturity of more than thirty (30) years,
unless otherwise set forth in the related Commitment Letter;
(57) No
Mortgagor is the obligor on more than two Mortgage Notes;
(58) Each
Mortgagor has a debt-to-income ratio of less than or equal to 60%, unless
otherwise set forth in the related Commitment Letter;
(59) Each
Mortgage contains a provision for the acceleration of the payment of the
unpaid
principal balance of the related Mortgage Loan in the event the related
Mortgaged Property is sold without the prior consent of the mortgagee thereunder
and to the best of the Seller’s knowledge, such provision is
enforceable;
(60) With
respect to each Mortgage Loan which is a Second Lien, (i) the related first
lien
does not provide for negative amortization and (ii) either no consent for
the
Mortgage Loan is required by the holder of the first lien or such consent
has
been obtained and is contained in the Mortgage File;
(61) No
Mortgage Loan is a “Specifically Designated National and Blocked Person” as
designated by the Office of Foreign Assets Control or as a person designated
in
Presidential Executive Order 13224 (the “Executive
Order”)
as a
person who commits, threatens to commit, or supports terrorism; no Mortgage
Loan
is subject to nullification pursuant to the Executive Order or the regulations
promulgated by the Office of Foreign Assets Control of the United States
Department of the Treasury (the “OFAC
Regulations”)
or in
violation of the Executive Order or the OFAC Regulations,
(62) No
Mortgage Loan has a Prepayment Charge longer than three years after its
origination. Any Prepayment Charge is in an amount equal to or less than
the
lesser of (a) the maximum amount permitted under applicable state law, and
(b)
if the Mortgaged Property is secured by residential real property located
in a
state other than Arizona, Maine, Massachusetts, New York, South Carolina
or
Wisconsin, six months interest on the related prepaid amount;
(63) The
Mortgage Loan Documents with respect to each Mortgage Loan subject to Prepayment
Charges specifically authorizes such Prepayment Charges to be collected and
such
Prepayment Charges are permissible and enforceable in accordance with the
terms
of the related Mortgage Loan Documents and applicable law (except to the
extent
that the enforceability thereof may be limited by bankruptcy, insolvency,
moratorium, receivership and other similar laws relating to creditors’ rights
generally or the collectability thereof may be limited due to acceleration
in
connection with a foreclosure);
(64) The
Mortgaged Property is located in the state identified in the Mortgage Loan
Schedule and consists of a single parcel of real property with a detached
single
family residence erected thereon, or a two- to four-family dwelling, or an
individual condominium unit in a low rise condominium project, or an individual
unit in a planned unit development or a de minimis planned unit development
which is in each case four stories or less. As of the date of origination,
no
portion of the Mortgaged Property was used for commercial purposes, and since
the date of origination, no portion of the Mortgaged Property has been used
for
commercial purposes; provided, that Mortgaged Properties which contain a
home
office shall not be considered as being used for commercial purposes as long
as
the Mortgaged Property has not been altered for commercial purposes and is
not
storing any chemicals or raw materials other than those commonly used for
homeowner repair, maintenance and/or household purposes;
(65) With
respect to Adjustable Rate Mortgage Loans, the Index set forth in the Mortgage
Note is LIBOR, unless otherwise set forth in the related Mortgage Loan
Schedule;
(66) With
respect to each Adjustable Rate Mortgage Loan, the Mortgage Loan Documents
provide that after the related first Adjustment Date, a related Mortgage
Loan
may only be assumed if the party assuming such Mortgage Loan meets certain
credit requirements stated in the Mortgage Loan Documents;
(67) To
the
best of the Seller’s knowledge, no action has been taken or failed to be taken,
no event has occurred and no state of facts exists or has existed on or prior
to
the Closing Date (whether or not known to the Seller on or prior to such
date)
which has resulted or will result in an exclusion from, denial of, or defense
to
coverage under any primary mortgage insurance, if any (including, without
limitation, any exclusions, denials or defenses which would limit or reduce
the
availability of the timely payment of the full amount of the loss otherwise
due
thereunder to the insured) whether arising out of actions, representations,
errors, omissions, negligence, or fraud of the Seller, the related Mortgagor
or
any party involved in the application for such coverage, including the
appraisal, plans and specifications and other exhibits or documents submitted
therewith to the insurer under such insurance policy, or for any other reason
under such coverage, but not including the failure of such insurer to pay
by
reason of such insurer’s breach of such insurance policy or such insurer’s
financial inability to pay;
(68) With
respect to each Mortgage, the Seller or the Servicer has within the last
twelve
months (unless such Mortgage was originated within such twelve month period)
analyzed the required Escrow Payments for each Mortgage and adjusted the
amount
of such payments so that, assuming all required payments are timely made,
any
deficiency will be eliminated on or before the first anniversary of such
analysis, or any overage will be refunded to the Mortgagor, in accordance
with
RESPA and any other applicable law;
(69) As
to
each consumer report (as defined in the Fair Credit Reporting Act, Public
Law
91-508) or other credit information furnished by the Seller to the Purchaser,
that Seller has full right and authority and is not precluded by law or contract
from furnishing such information to the Purchaser;
(70) If
the
Mortgage Loan is secured by a long-term residential lease, (1) the lessor
under
the lease holds a fee simple interest in the land; (2) the terms of such
lease
expressly permit the mortgaging of the leasehold estate, the assignment of
the
lease without the lessor’s consent and the acquisition by the holder of the
Mortgage of the rights of the lessee upon foreclosure or assignment in lieu
of
foreclosure or provide the holder of the Mortgage with substantially similar
protections; (3) the terms of such lease do not (a) allow the termination
thereof upon the lessee’s default without the holder of the Mortgage being
entitled to receive written notice of, and opportunity to cure, such default,
(b) allow the termination of the lease in the event of damage or destruction
as
long as the Mortgage is in existence, (c) prohibit the holder of the Mortgage
from being insured (or receiving proceeds of insurance) under the hazard
insurance policy or policies relating to the Mortgaged Property or (d) permit
any increase in rent other than pre-established increases set forth in the
lease; (4) the original term of such lease is not less than 15 years; (5)
the
term of such lease does not terminate earlier than ten years after the maturity
date of the Mortgage Note; and (6) the Mortgaged Property is located in a
jurisdiction in which the use of leasehold estates in transferring ownership
in
residential properties is a generally accepted practice;
(71) [reserved];
(72) To
the
best of the Seller’s knowledge, with respect to each Second Lien Mortgage Loan,
the related first lien mortgage loan is in full force and effect, and there
is
no default, breach, violation or event which would permit acceleration existing
under such first lien mortgage or mortgage note, and no event which, with
the
passage of time or with notice and the expiration of any grace or cure period,
would constitute a default, breach, violation or event which would permit
acceleration thereunder;
(73) With
respect to each Second Lien Mortgage Loan, the related first lien mortgage
contains a provision which provides for giving notice of default or breach
to
the mortgagee under such Second Lien Mortgage Loan and allows such mortgagee
to
cure any default under the related first lien mortgage;
(74) The
Seller has complied with all applicable anti-money laundering laws and
regulations, including, without limitation, the USA Patriot Act of
2001;
(75) No
predatory or deceptive lending practices, including but not limited to, the
extension of credit to a mortgagor without regard for the mortgagor’s ability to
repay the Mortgage Loan and the extension of credit to a mortgagor which
has no
apparent benefit to the mortgagor, were employed in connection with the
origination of the Mortgage Loan;
(76) No
Mortgage Loan is (a) subject to, covered by or in violation of the provisions
of
the Homeownership and Equity Protection Act of 1994, as amended, (b) a “high
cost”, “covered”, “abusive”, “predatory”, “home loan”, “Oklahoma Section 10” or
“high risk” mortgage loan (or a similarly designated loan using different
terminology) under any federal, state or local law, including without
limitation, the provisions of the Georgia Fair Lending Act, New York Banking
Law, Section 6-1, the Arkansas Home Loan Protection Act, effective as of
June
14, 2003, Kentucky State Statute KRS 360.100, effective as of June 25, 2003,
the
New Jersey Home Ownership Security Act of 2002 (the “NJ Act”), the New Mexico
Home Loan Protection Act (N.M. Stat. Xxx. §§ 58-21A-1 et seq.), the Illinois
High-Risk Home Loan Act (815 Ill. Comp. Stat. 137/1 et seq.), the Oklahoma
Home
Ownership and Equity Protection Act, Nevada Assembly Xxxx No. 284, effective
as
of Oct. 1, 2003, the Minnesota Residential Mortgage Originator and Servicer
Licensing Act (MN Stat. §58.137), the South Carolina High-Cost and Consumer Home
Loans Act, effective January 1, 2004, the Massachusetts Predatory Home Loan
Practices Act, effective November 7, 2004 (Mass. Xxx. Laws Ch. 183C), the
Indiana Home Loan Practices Act, effective January 1, 2005 (Ind. Code Xxx.
§24-9-1 through §24-9-9) or any other statute or regulation providing assignee
liability to holders of such mortgage loans, or (c) subject to or in violation
of any such or comparable federal, state or local statutes or
regulations;
(77) No
Mortgage Loan originated or modified on or after October 1, 2002 and prior
to
March 7, 2003 is secured by a Mortgaged Property located in the State of
Georgia;
(78) The
methodology used in underwriting the extension of credit for each Mortgage
Loan
employs objective mathematical principles which relate the Mortgagor’s income,
assets and liabilities to the proposed payment and such underwriting methodology
does not rely on the extent of the Mortgagor’s equity in the collateral as the
principal determining factor in approving such credit extension. Such
underwriting methodology confirmed that at the time of origination
(application/approval) the Mortgagor had a reasonable ability to make timely
payments on the Mortgage Loan;
(79) All
points, fees and charges, including finance charges (whether or not financed,
assessed, collected or to be collected), in connection with the origination
and
servicing of each Mortgage Loan were disclosed in writing to the related
Mortgagor in accordance with applicable state and federal law and
regulation;
(80) Except
as
indicated in the Mortgage Loan Schedule, no Mortgage Loan is a “manufactured
housing loan” pursuant to the NJ Act, and one hundred percent of the amount
financed of any purchase money Second Lien Mortgage Loan subject to the NJ
Act
was used for the purchase of the related Mortgaged Property;
(81) With
respect to any Mortgage Loan for which a mortgage loan application was submitted
by the Mortgagor after April 1, 2004, no such Mortgage Loan secured by a
Mortgage Property located in the State of Illinois is in violation of the
provisions of the Illinois Interest Act, including Section 4.1a which provides
that no such Mortgage Loan with a Mortgage Interest Rate in excess of 8.0%
per
annum has lender-imposed fees (or other charges) in excess of 3.0% of the
original principal balance of the Mortgage Loan;
(82) Immediately
prior to the payment of the Purchase Price for each Mortgage Loan, the Seller
was the owner of record of the related Mortgage and the indebtedness evidenced
by the related Mortgage Note;
(83) No
Mortgage Loan originated on or after November 7, 2004 secured by a Mortgaged
Property located in the State of Massachusetts is a Refinanced Mortgage
Loan;
(84) With
respect to any Mortgage Loan originated on or after August 1, 2004, neither
the
related Mortgage nor the related Mortgage Note requires the borrower to submit
to arbitration to resolve any dispute arising out of or relating in any way
to
the Mortgage Loan;
(85) With
respect to each Mortgage Loan that is secured by a ground lease of the related
Mortgaged Property:
| (i) |
The
Mortgagor is the owner of a valid and subsisting interest as tenant
under
the ground lease;
|
| (ii) |
The
ground lease is in full force and effect, unmodified and not supplemented
by any writing or otherwise;
|
| (iii) |
The
Mortgagor is not in default under any of the terms thereof and
there are
no circumstances which, with the passage of time or the giving
of notice
or both, would constitute an event of default
thereunder;
|
| (iv) |
The
lessor under the ground lease is not in default under any of the
terms or
provisions thereof on the part of the lessor to be observed or
performed;
|
| (v) |
The
term of the ground lease exceeds the maturity date of the related Mortgage
Loan by at least ten years;
|
| (vi) |
The
ground lease or a memorandum thereof has been recorded and by its
terms
permits the leasehold estate to be mortgaged. The ground lease
grants any
leasehold mortgagee standard protection necessary to protect the
security
of a leasehold mortgagee;
|
| (vii) |
The
ground lease does not contain any default provisions that could
give rise
to forfeiture or termination of the Ground Lease except for the
non-payment of the ground lease
rents;
|
| (viii) |
The
execution, delivery and performance of the Mortgage do not require
the
consent (other than those consents which have been obtained and
are in
full force and effect) under, and will not contravene any provision
of or
cause a default under, the ground lease;
and
|
| (ix) |
The
ground lease provides that the leasehold can be transferred, mortgaged
and
sublet an unlimited number of times either without restriction
or on
payment of a reasonable fee and delivery of reasonable documentation
to
the lessor.
|
Schedule
I
The
Seller hereby represents, warrants, and covenants to the Purchaser as follows
on
the Closing Date and on each Distribution Date thereafter:
General
1. This
Agreement creates a valid and continuing security interest (as defined in
the
applicable Uniform Commercial Code (“UCC”)) in the Mortgage Loans in favor of
the Purchaser which security interest is prior to all other liens, and is
enforceable as such as against creditors of and purchasers from the
Seller.
2. The
Mortgage Loans constitute “general intangibles” or “instruments” within the
meaning of the applicable UCC.
3. The
Custodial Account and all subaccounts thereof constitute either a deposit
account or a securities account.
4. To
the
extent that payments and collections received or made with respect to the
Mortgage Loans constitute securities entitlements, such payments and collections
have been and will have been credited to the Custodial Account. The securities
intermediary for the Custodial Account has agreed to treat all assets credited
to the Custodial Account as “financial assets” within the meaning of the
applicable UCC.
Creation
5. The
Seller owns and has good and marketable title to the Mortgage Loans free
and
clear of any lien, claim or encumbrance of any Person, excepting only liens
for
taxes, assessments or similar governmental charges or levies incurred in
the
ordinary course of business that are not yet due and payable or as to which
any
applicable grace period shall not have expired, or that are being contested
in
good faith by proper proceedings and for which adequate reserves have been
established, but only so long as foreclosure with respect to such a lien
is not
imminent and the use and value of the property to which the lien attaches
is not
impaired during the pendency of such proceeding.
6. The
Seller has received all consents and approvals to the sale of the Mortgage
Loans
hereunder to the Purchaser required by the terms of the Mortgage Loans that
constitute instruments.
7. To
the
extent the Custodial Account or subaccounts thereof constitute securities
entitlements, certificated securities or uncertificated securities, the Seller
has received all consents and approvals required to transfer to the Purchaser
its interest and rights in the Custodial Account hereunder.
Perfection
8. The
Seller has caused or will have caused, within ten days after the effective
date
of this Agreement, the filing of all appropriate financing statements in
the
proper filing office in the appropriate jurisdictions under applicable law
in
order to perfect the sale of the Mortgage Loans from the Seller to the Purchaser
and the security interest in the Mortgage Loans granted to the Purchaser
hereunder.
9. With
respect to the Custodial Account and all subaccounts that constitute deposit
accounts, either:
(i) the
Seller has delivered to the Purchaser a fully-executed agreement pursuant
to
which the bank maintaining the deposit accounts has agreed to comply with
all
instructions originated by the Purchaser directing disposition of the funds
in
the Custodial Account without further consent by the Seller; or
(ii) the
Seller has taken all steps necessary to cause the Purchaser to become the
account holder of the Custodial Account.
10. With
respect to the Custodial Account or subaccounts thereof that constitute
securities accounts or securities entitlements, the Seller has caused or
will
have caused, within ten days after the effective date of this Agreement,
the
filing of all appropriate financing statements in the proper filing office
in
the appropriate jurisdictions under applicable law in order to perfect the
security interest in the Custodial Account granted by the Seller to the
Purchaser.
Priority
11. Other
than the transfer of the Mortgage Loans to the Purchaser pursuant to this
Agreement, the Seller has not pledged, assigned, sold, granted a security
interest in, or otherwise conveyed any of the Mortgage Loans. The Seller
has not
authorized the filing of, or is not aware of any financing statements against
the Seller that include a description of collateral covering the Mortgage
Loans
other than any financing statement relating to the security interest granted
to
the Purchaser hereunder or that has been terminated.
12. The
Seller is not aware of any judgment, ERISA or tax lien filings against the
Seller.
13. The
Trustee has in its possession all original copies of the Mortgage Notes that
constitute or evidence the Mortgage Loans. To the Seller’s knowledge, none of
the instruments that constitute or evidence the Mortgage Loans has any marks
or
notations indicating that they have been pledged, assigned or otherwise conveyed
to any Person other than the Purchaser or its designee. All financing statements
filed or to be filed against the Seller in favor of the Purchaser in connection
herewith describing the Mortgage Loans contain a statement to the following
effect: “A purchase of or security interest in any collateral described in this
financing statement will violate the rights of the Purchaser.”
14. Neither
the Custodial Account nor any subaccount thereof is in the name of any person
other than the Seller or the Purchaser or in the name of its nominee. The
Seller
has not consented for the securities intermediary of the Custodial Account
to
comply with entitlement orders of any person other than the Purchaser or
its
designee.
15. Survival
of Perfection Representations.
Notwithstanding any other provision of this Agreement or any other transaction
document, the Perfection Representations contained in this Schedule shall
be
continuing, and remain in full force and effect (notwithstanding any replacement
of the Servicer or termination of the Servicer’s rights to act as such) until
such time as all obligations under this Agreement have been finally and fully
paid and performed.
16. No
Waiver.
The
parties to this Agreement (i) shall not, without obtaining a confirmation
of the
then-current rating of the Certificates waive any of the Perfection
Representations, and (ii) shall provide the Rating Agencies with prompt written
notice of any breach of the Perfection Representations, and shall not, without
obtaining a confirmation of the then-current rating of the Certificates (as
determined after any adjustment or withdrawal of the ratings following notice
of
such breach) waive a breach of any of the Perfection
Representations.
17. Seller
to Maintain Perfection and Priority.
The
Seller covenants that, in order to evidence the interests of the Seller and
the
Purchaser under this Agreement, the Seller shall take such action, or execute
and deliver such instruments (other than effecting a Filing (as defined below),
unless such Filing is effected in accordance with this paragraph) as may
be
necessary or advisable (including, without limitation, such actions as are
requested by the Purchaser) to maintain and perfect, as a first priority
interest, the Purchaser’s security interest in the Mortgage Loans. The Seller
shall, from time to time and within the time limits established by law, prepare
and present to the Purchaser or its designee to authorize (based in reliance
on
the Opinion of Counsel hereinafter provided for) the Seller to file, all
financing statements, amendments, continuations, initial financing statements
in
lieu of a continuation statement, terminations, partial terminations, releases
or partial releases, or any other filings necessary or advisable to continue,
maintain and perfect the Purchaser’s security interest in the Mortgage Loans as
a first-priority interest (each a “Filing”). The Seller shall present each such
Filing to the Purchaser or its designee together with (x) an Opinion of Counsel
to the effect that such Filing is (i) consistent with the grant of the security
interest to the Purchaser pursuant to Section 19 of this Agreement, (ii)
satisfies all requirements and conditions to such Filing in this Agreement
and
(iii) satisfies the requirements for a Filing of such type under the Uniform
Commercial Code in the applicable jurisdiction (or if the Uniform Commercial
Code does not apply, the applicable statute governing the perfection of security
interests), and (y) a form of authorization for the Purchaser’s signature. Upon
receipt of such Opinion of Counsel and form of authorization, the Purchaser
shall promptly authorize in writing the Seller to, and the Seller shall,
effect
such Filing under the UCC without the signature of the Seller or the Purchaser
where allowed by applicable law. Notwithstanding anything else in the
transaction documents to the contrary, the Seller shall not have any authority
to effect a Filing without obtaining written authorization from the Purchaser
or
its designee.
Exhibit
1
APPENDIX
E - Standard & Poor’s Anti-Predatory Lending Categorization
REVISED
February 07, 2005
Standard
& Poor’s has categorized loans governed by anti-predatory lending laws in
the Jurisdictions listed below into three categories based upon a combination
of
factors that include (a) the risk exposure associated with the assignee
liability and (b) the tests and thresholds set forth in those laws. Note
that
certain loans classified by the relevant statute as Covered are included
in
Standard & Poor’s High Cost Loan Category because they included thresholds
and tests that are typical of what is generally considered High Cost by the
industry.
|
Standard
& Poor’s High Cost Loan
Categorization
|
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending Law/Effective Date
|
Category
under Applicable Anti-Predatory Lending Law
|
|
Arkansas
|
Arkansas
Home Loan Protection Act, Ark. Code Xxx. §§ 00-00-000 et seq.
Effective
July 16, 2003
|
High
Cost Home Loan
|
|
Cleveland
Heights, OH
|
Ordinance
No. 72-2003 (PSH), Mun. Code §§ 757.01 et seq.
Effective
June 2, 2003
|
Covered
Loan
|
|
Colorado
|
Consumer
Equity Protection, Colo. Stat. Xxx. §§ 5-3.5-101 et seq.
Effective
for covered loans offered or entered into on or after January 1,
2003.
Other provisions of the Act took effect on June 7, 2002
|
Covered
Loan
|
|
Connecticut
|
Connecticut
Abusive Home Loan Lending Practices Act, Conn. Gen. Stat. §§ 36a-746
et seq.
Effective
October 1, 2001
|
High
Cost Home Loan
|
|
District
of Columbia
|
Home
Loan Protection Act, D.C. Code §§ 26-1151.01 et seq.
Effective
for loans closed on or after January 28, 2003
|
Covered
Loan
|
|
Florida
|
Fair
Lending Act, Fla. Stat. Xxx. §§ 494.0078 et seq.
Effective
October 2, 2002
|
High
Cost Home Loan
|
|
Georgia
(Oct. 1, 2002 - Mar. 6, 2003)
|
Georgia
Fair Lending Act, Ga. Code Xxx. §§ 7-6A-1 et seq.
Effective
October 1, 2002 - March 6, 2003
|
High
Cost Home Loan
|
|
Georgia
as amended (Mar. 7, 2003 - current)
|
Georgia
Fair Lending Act, Ga. Code Xxx. §§ 7-6A-1 et seq.
Effective
for loans closed on or after March 7, 2003
|
High
Cost Home Loan
|
|
HOEPA
Section 32
|
Home
Ownership and Equity Protection Act of 1994, 15 U.S.C. § 1639, 12 C.F.R.
§§ 226.32 and 226.34
Effective
October 1, 1995, amendments October 1, 2002
|
High
Cost Loan
|
|
Illinois
|
High
Risk Home Loan Act, Ill. Comp. Stat. tit. 815, §§ 137/5 et seq.
Effective
January 1, 2004 (prior to this date, regulations under Residential
Mortgage License Act effective from May 14, 2001)
|
High
Risk Home Loan
|
|
Indiana
|
Indiana
Home Loan Practices Act, Ind. Code Xxx. §§ 24-9-1-1 et seq.
Effective
for loans originated on or after January 1, 2005.
|
High
Cost Home Loan
|
|
Kansas
|
Consumer
Credit Code, Kan. Stat. Xxx. §§ 16a-1-101 et seq.
Sections
16a-1-301 and 16a-3-207 became effective April 14, 1999; Section
16a-3-308a became effective July 1, 1999
|
High
Loan to Value Consumer Loan (id.§
16a-3-207) and;
|
|
High
APR Consumer Loan (id.§
16a-3-308a)
|
||
|
Kentucky
|
2003
KY H.B. 000 - Xxxx Xxxx Xxxx Xxxx Xxx, Xx. Rev. Stat. §§ 360.100
et seq.
Effective
June 24, 2003
|
High
Cost Home Loan
|
|
Maine
|
Truth
in Lending, Me. Rev. Stat. tit. 9-A, §§ 8-101 et seq.
Effective
September 29, 1995 and as amended from time to time
|
High
Rate High Fee Mortgage
|
|
Massachusetts
|
Part
40 and Part 32, 209 C.M.R. §§ 32.00 et seq.
and 209 C.M.R. §§ 40.01 et seq.
Effective
March 22, 2001 and amended from time to time
|
High
Cost Home Loan
|
|
Massachusetts
Predatory Home Loan Practices Act
Mass.
Gen. Laws ch. 183C, §§ 1 et seq.
Effective
November 7, 2004
|
High
Cost Home Mortgage Loan
|
|
|
Nevada
|
Assembly
Xxxx No. 284, Nev. Rev. Stat. §§ 598D.010 et seq.
Effective
October 1, 2003
|
Home
Loan
|
|
New
Jersey
|
New
Jersey Home Ownership Security Act of 2002, N.J. Rev. Stat. §§ 46:10B-22
et seq.
Effective
for loans closed on or after November 27, 2003
|
High
Cost Home Loan
|
|
New
Mexico
|
Home
Loan Protection Act, N.M. Rev. Stat. §§ 58-21A-1 et seq.
Effective
as of January 1, 2004; Revised as of February 26, 2004
|
High
Cost Home Loan
|
|
New
York
|
N.Y.
Banking Law Article 6-l
Effective
for applications made on or after April 1, 2003
|
High
Cost Home Loan
|
|
North
Carolina
|
Restrictions
and Limitations on High Cost Home Loans, N.C. Gen. Stat. §§ 24-1.1E
et seq.
Effective
July 1, 2000; amended October 1, 2003 (adding open-end lines of
credit)
|
High
Cost Home Loan
|
|
Ohio
|
H.B.
386 (codified in various sections of the Ohio Code), Ohio Rev.
Code Xxx.
§§ 1349.25 et seq.
Effective
May 24, 2002
|
Covered
Loan
|
|
Oklahoma
|
Consumer
Credit Code (codified in various sections of Title 14A)
Effective
July 1, 2000; amended effective January 1, 2004
|
Subsection
10 Mortgage
|
|
South
Carolina
|
South
Carolina High Cost and Consumer Home Loans Act, S.C. Code Xxx.
§§ 37-23-10
et seq.
Effective
for loans taken on or after January 1, 2004
|
High
Cost Home Loan
|
|
West
Virginia
|
West
Virginia Residential Mortgage Lender, Broker and Servicer Act,
W. Va. Code
Xxx. §§ 31-17-1 et seq.
Effective
June 5, 0000
|
Xxxx
Xxxxxxxx Mortgage Loan Act Loan
|
Standard
& Poor’s Covered Loan Categorization
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending Law/Effective Date
|
Category
under Applicable Anti-Predatory Lending Law
|
|
Georgia
(Oct. 1, 2002 - Mar. 6, 2003)
|
Georgia
Fair Lending Act, Ga. Code Xxx. §§ 7-6A-1 et seq.
Effective
October 1, 2002 - March 6, 2003
|
Covered
Loan
|
|
New
Jersey
|
New
Jersey Home Ownership Security Act of 2002, N.J. Rev. Stat. §§ 46:10B-22
et seq.
Effective
November 27, 2003 - July 5, 2004
|
Covered
Home Loan
|
|
Standard
& Poor’s Home Loan
Categorization
|
|
State/Jurisdiction
|
Name
of Anti-Predatory Lending Law/Effective Date
|
Category
under Applicable Anti-Predatory Lending Law
|
|
Georgia
(Oct. 1, 2002 - Mar. 6, 2003)
|
Georgia
Fair Lending Act, Ga. Code Xxx. §§ 7-6A-1 et seq.
Effective
October 1, 2002 - March 6, 2003
|
Home
Loan
|
|
New
Jersey
|
New
Jersey Home Ownership Security Act of 2002, N.J. Rev. Stat. §§ 46:10B-22
et seq.
Effective
for loans closed on or after November 27, 2003
|
Home
Loan
|
|
New
Mexico
|
Home
Loan Protection Act, N.M. Rev. Stat. §§ 58-21A-1 et seq.
Effective
as of January 1, 2004; Revised as of February 26, 2004
|
Home
Loan
|
|
North
Carolina
|
Restrictions
and Limitations on High Cost Home Loans, N.C. Gen. Stat. §§ 24-1.1E
et seq.
Effective
July 1, 2000; amended October 1, 2003 (adding open-end lines of
credit)
|
Consumer
Home Loan
|
|
South
Carolina
|
South
Carolina High Cost and Consumer Home Loans Act, S.C. Code Xxx.
§§ 37-23-10
et seq.
Effective
for loans taken on or after January 1, 2004
|
Consumer
Home Loan
|
EXHIBIT
E
REQUEST
FOR RELEASE
(FOR
TRUSTEE/CUSTODIAN)
|
Loan
Information
|
|||
|
Name
of Mortgagor:
|
|||
|
Servicer
|
|||
|
Loan
No.:
|
|||
|
Trustee/Custodian
|
|||
|
Name:
|
|||
|
Address:
|
|||
|
Trustee/Custodian
|
|||
|
Mortgage
File No.:
|
|||
|
Trustee
|
|||
|
Name:
|
|||
|
Address:
|
|||
|
Depositor
|
|||
|
Name:
|
STANWICH
ASSET ACCEPTANCE COMPANY, L.L.C.
|
||
|
Address:
|
|||
|
Certificates:
|
Xxxxxxxxxx
Mortgage Loan Trust, Series 2006-RFC1 Asset-Backed Pass-Through
Certificates
|
||
The
undersigned Servicer hereby acknowledges that it has received from
_______________________, as Trustee for the Holders of Xxxxxxxxxx Mortgage
Loan
Trust, Series 2006-RFC1 Asset-Backed Pass-Through Certificates the documents
referred to below (the “Documents”). All capitalized terms not otherwise defined
in this Request for Release shall have the meanings given them in the Pooling
and Servicing Agreement, dated as of May 1, 2006, among the Trustee, the
Depositor and the Servicer (the “Pooling and Servicing Agreement”).
( )
Promissory Note dated _______________, 20__, in the original principal sum
of
$__________, made by _____________________, payable to, or endorsed to the
order
of, the Trustee.
( )
Mortgage recorded on _________________________ as instrument no.
____________________ in the County Recorder’s Office of the County of
_________________, State of __________________ in book/reel/docket
_________________ of official records at page/image _____________.
( )
Deed of
Trust recorded on ___________________ as instrument no. ________________ in
the
County Recorder’s Office of the County of _________________, State of
____________________ in book/reel/docket _________________ of official records
at page/image ______________.
( )
Assignment of Mortgage or Deed of Trust to the Trustee, recorded on
___________________ as instrument no. _________ in the County Recorder’s Office
of the County of _______________, State of _______________________ in
book/reel/docket ____________ of official records at page/image
____________.
( )
Other
documents, including any amendments, assignments or other assumptions of the
Mortgage Note or Mortgage.
( ) _____________________________________________
( ) _____________________________________________
( ) _____________________________________________
( ) _____________________________________________
The
undersigned Servicer hereby acknowledges and agrees as follows:
(1)
The
Servicer shall hold and retain possession of the Documents in trust for the
benefit of the Trustee, solely for the purposes provided in the
Agreement.
(2)
The
Servicer shall not cause or permit the Documents to become subject to, or
encumbered by, any claim, liens, security interest, charges, writs of attachment
or other impositions nor shall the Servicer assert or seek to assert any claims
or rights of setoff to or against the Documents or any proceeds
thereof.
(3)
The
Servicer shall return each and every Document previously requested from the
Mortgage File to the Trustee when the need therefor no longer exists, unless
the
Mortgage Loan relating to the Documents has been liquidated and the proceeds
thereof have been remitted to the Collection Account and except as expressly
provided in the Agreement.
(4)
The
Documents and any proceeds thereof, including any proceeds of proceeds, coming
into the possession or control of the Servicer shall at all times be earmarked
for the account of the Trustee, and the Servicer shall keep the Documents and
any proceeds separate and distinct from all other property in the Servicer’s
possession, custody or control.
Dated:
|
HOMECOMINGS
FINANCIAL NETWORK, INC.
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
EXHIBIT
F-1
FORM
OF
TRANSFEROR REPRESENTATION LETTER
[Date]
Xxxxx
Fargo Bank, N.A.
Sixth
and
Marquette
Xxxxxxxxxxx,
XX 00000-0000
Attention:
Corporate Trust Services - Xxxxxxxxxx Mortgage Loan Trust,
2006-RFC1
|
Re:
|
Xxxxxxxxxx
Mortgage Loan Trust, Series 2006-RFC1 Asset-Backed Pass-Through
Certificates, Class ___, representing a ___% Class Percentage
Interest
|
|
Ladies
and Gentlemen:
In
connection with the transfer by ________________ (the “Transferor”) to
________________ (the “Transferee”) of the captioned mortgage pass-through
certificates (the “Certificates”), the Transferor hereby certifies as
follows:
Neither
the Transferor nor anyone acting on its behalf has (a) offered, pledged, sold,
disposed of or otherwise transferred any Certificate, any interest in any
Certificate or any other similar security to any person in any manner, (b)
has
solicited any offer to buy or to accept a pledge, disposition or other transfer
of any Certificate, any interest in any Certificate or any other similar
security from any person in any manner, (c) has otherwise approached or
negotiated with respect to any Certificate, any interest in any Certificate
or
any other similar security with any person in any manner, (d) has made any
general solicitation by means of general advertising or in any other manner,
(e)
has taken any other action, that (in the case of each of subclauses (a) through
(e) above) would constitute a distribution of the Certificates under the
Securities Act of 1933, as amended (the “1933 Act”), or would render the
disposition of any Certificate a violation of Section 5 of the 1933 Act or
any
state securities law or would require registration or qualification pursuant
thereto. The Transferor will not act, nor has it authorized or will it authorize
any person to act, in any manner set forth in the foregoing sentence with
respect to any Certificate. The Transferor will not sell or otherwise transfer
any of the Certificates, except in compliance with the provisions of that
certain Pooling and Servicing Agreement, dated as of May 1, 2006, among Stanwich
Asset Acceptance Company, L.L.C. as Depositor, Homecomings Financial Network,
Inc. as Servicer and Xxxxx Fargo Bank, N.A. as Trustee (the “Pooling and
Servicing Agreement”), pursuant to which Pooling and Servicing Agreement the
Certificates were issued.
Capitalized
terms used but not defined herein shall have the meanings assigned thereto
in
the Pooling and Servicing Agreement.
|
Very
truly yours,
|
||
|
[Transferor]
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
FORM
OF
TRANSFEREE REPRESENTATION LETTER
[Date]
Xxxxx
Fargo Bank, N.A.
Sixth
and
Marquette
Xxxxxxxxxxx,
XX 00000-0000
Attention:
Corporate Trust Services - Xxxxxxxxxx Mortgage Loan Trust,
2006-RFC1
|
Re:
|
Xxxxxxxxxx
Mortgage Loan Trust, Series 2006-RFC1 Asset-Backed Pass-Through
Certificates, Class ___, representing a ___% Percentage
Interest
|
Ladies
and Gentlemen:
In
connection with the purchase from ______________________ (the “Transferor”) on
the date hereof of the captioned trust certificates (the “Certificates”),
_______________ (the “Transferee”) hereby certifies as follows:
The
Transferee is a “qualified institutional buyer” as that term is defined in Rule
144A (“Rule 144A”) under the Securities Act of 1933 (the “1933 Act”) and has
completed either of the forms of certification to that effect attached hereto
as
Annex 1 or Annex 2. The Transferee is aware that the sale to it is being made
in
reliance on Rule 144A. The Transferee is acquiring the Certificates for its
own
account or for the account of a qualified institutional buyer, and understands
that such Certificate may be resold, pledged or transferred only (i) to a person
reasonably believed to be a qualified institutional buyer that purchases for
its
own account or for the account of a qualified institutional buyer to whom notice
is given that the resale, pledge or transfer is being made in reliance on Rule
144A, or (ii) pursuant to another exemption from registration under the 1933
Act.
2.
The
Transferee has been furnished with all information regarding (a) the
Certificates and distributions thereon, (b) the nature, performance and
servicing of the Mortgage Loans, (c) the Pooling and Servicing Agreement
referred to below, and (d) any credit enhancement mechanism associated with
the
Certificates, that it has requested.
All
capitalized terms used but not otherwise defined herein have the respective
meanings assigned thereto in the Pooling and Servicing Agreement, dated as
of
May 1, 2006, among Stanwich Asset Acceptance Company, L.L.C. as Depositor,
Homecomings Financial Network, Inc. as Servicer and Xxxxx Fargo Bank, N.A.
as
Trustee, pursuant to which the Certificates were issued.
|
[TRANSFEREE]
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
ANNEX
1 TO EXHIBIT F-1
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR
TRANSFEREES OTHER THAN REGISTERED INVESTMENT COMPANIES]
The
undersigned hereby certifies as follows to [name of Transferor] (the
“Transferor”) and Xxxxx Fargo Bank, N.A., as Trustee, with respect to the
mortgage pass-through certificates (the “Certificates”) described in the
Transferee Certificate to which this certification relates and to which this
certification is an Annex:
1. As
indicated below, the undersigned is the President, Chief Financial Officer,
Senior Vice President or other executive officer of the entity purchasing the
Certificates (the “Transferee”).
2. In
connection with purchases by the Transferee, the Transferee is a “qualified
institutional buyer” as that term is defined in Rule 144A under the Securities
Act of 1933 (“Rule 144A”) because (i) the Transferee owned and/or invested on a
discretionary basis $______________________1
in
securities (except for the excluded securities referred to below) as of the
end
of the Transferee’s most recent fiscal year (such amount being calculated in
accordance with Rule 144A) and (ii) the Transferee satisfies the criteria in
the
category marked below.
___
CORPORATION, ETC. The Transferee is a corporation (other than a bank, savings
and loan association or similar institution), Massachusetts or similar business
trust, partnership, or any organization described in Section 501(c)(3) of the
Internal Revenue Code of 1986.
___
BANK.
The Transferee (a) is a national bank or banking institution organized under
the
laws of any State, territory or the District of Columbia, the business of which
is substantially confined to banking and is supervised by the State or
territorial banking commission or similar official or is a foreign bank or
equivalent institution, and (b) has an audited net worth of at least $25,000,000
as demonstrated in its latest annual financial statements, a copy of which
is
attached hereto.
___
SAVINGS AND LOAN. The Transferee (a) is a savings and loan association, building
and loan association, cooperative bank, homestead association or similar
institution, which is supervised and examined by a State or Federal authority
having supervision over any such institutions or is a foreign savings and loan
association or equivalent institution and (b) has an audited net worth of at
least
___
BROKER-DEALER. The Transferee is a dealer registered pursuant to Section 15
of
the Securities Exchange Act of 1934.
___
INSURANCE COMPANY. The Transferee is an insurance company whose primary and
predominant business activity is the writing of insurance or the reinsuring
of
risks underwritten by insurance companies and which is subject to supervision
by
the insurance commissioner or a similar official or agency of a State, territory
or the District of Columbia.
___
STATE
OR LOCAL PLAN. The Transferee is a plan established and maintained by a State,
its political subdivisions, or any agency or instrumentality of the State or
its
political subdivisions, for the benefit of its employees.
___
ERISA
PLAN. The Transferee is an employee benefit plan within the meaning of Title
I
of the Employee Retirement Income Security Act of 1974.
___
INVESTMENT ADVISOR. The Transferee is an investment advisor registered under
the
Investment Advisers Act of 1940.
3. The
term
“SECURITIES” as used herein DOES NOT INCLUDE (i) securities of issuers that are
affiliated with the Transferee, (ii) securities that are part of an unsold
allotment to or subscription by the Transferee, if the Transferee is a dealer,
(iii) securities issued or guaranteed by the U.S. or any instrumentality
thereof, (iv) bank deposit notes and certificates of deposit, (v) loan
participations, (vi) repurchase agreements, (vii) securities owned but subject
to a repurchase agreement and (viii) currency, interest rate and commodity
swaps.
4. For
purposes of determining the aggregate amount of securities owned and/or invested
on a discretionary basis by the Transferee, the Transferee used the cost of
such
securities to the Transferee and did not include any of the securities referred
to in the preceding paragraph. Further, in determining such aggregate amount,
the Transferee may have included securities owned by subsidiaries of the
Transferee, but only if such subsidiaries are consolidated with the Transferee
in its financial statements prepared in accordance with generally accepted
accounting principles and if the investments of such subsidiaries are managed
under the Transferee’s direction. However, such securities were not included if
the Transferee is a majority-owned, consolidated subsidiary of another
enterprise and the Transferee is not itself a reporting company under the
Securities Exchange Act of 1934.
5. The
Transferee acknowledges that it is familiar with Rule 144A and understands
that
the Transferor and other parties related to the Certificates are relying and
will continue to rely on the statements made herein because one or more sales
to
the Transferee may be in reliance on Rule 144A.
|
___
|
___
|
Will
the Transferee be purchasing the Certificates
|
|
Yes
|
No
|
only
for the Transferee’s own account?
|
6. If
the
answer to the foregoing question is “no”, the Transferee agrees that, in
connection with any purchase of securities sold to the Transferee for the
account of a third party (including any separate account) in reliance on Rule
144A, the Transferee will only purchase for the account of a third party that
at
the time is a “qualified institutional buyer” within the meaning of Rule 144A.
In addition, the Transferee agrees that the Transferee will not purchase
securities for a third party unless the Transferee has obtained a current
representation letter from such third party or taken other appropriate steps
contemplated by Rule 144A to conclude that such third party independently meets
the definition of “qualified institutional buyer” set forth in Rule
144A.
7. The
Transferee will notify each of the parties to which this certification is made
of any changes in the information and conclusions herein. Until such notice
is
given, the Transferee’s purchase of the Certificates will constitute a
reaffirmation of this certification as of the date of such purchase. In
addition, if the Transferee is a bank or savings and loan as provided above,
the
Transferee agrees that it will furnish to such parties updated annual financial
statements promptly after they become available.
Dated:
|
Print
Name of Transferee
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
ANNEX
2 TO EXHIBIT F-1
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR
TRANSFEREES THAT ARE REGISTERED INVESTMENT COMPANIES]
The
undersigned hereby certifies as follows to [name of Transferor] (the
“Transferor”) and Xxxxx Fargo Bank, N.A., as Trustee, with respect to the
mortgage pass- through certificates (the “Certificates”) described in the
Transferee Certificate to which this certification relates and to which this
certification is an Annex:
1. As
indicated below, the undersigned is the President, Chief Financial Officer
or
Senior Vice President of the entity purchasing the Certificates (the
“Transferee”) or, if the Transferee is a “qualified institutional buyer” as that
term is defined in Rule 144A under the Securities Act of 1933 (“Rule 144A”)
because the Transferee is part of a Family of Investment Companies (as defined
below), is such an officer of the investment adviser (the
“Adviser”).
2. In
connection with purchases by the Transferee, the Transferee is a “qualified
institutional buyer” as defined in Rule 144A because (i) the Transferee is an
investment company registered under the Investment Company Act of 1940, and
(ii)
as marked below, the Transferee alone, or the Transferee’s Family of Investment
Companies, owned at least $100,000,000 in securities (other than the excluded
securities referred to below) as of the end of the Transferee’s most recent
fiscal year. For purposes of determining the amount of securities owned by
the
Transferee or the Transferee’s Family of Investment Companies, the cost of such
securities was used.
|
____
|
The
Transferee owned $___________________ in securities (other than the
excluded securities referred to below) as of the end of the Transferee’s
most recent fiscal year (such amount being calculated in accordance
with
Rule 144A).
|
|
|
____
|
The
Transferee is part of a Family of Investment Companies which owned
in the
aggregate $______________ in securities (other than the excluded
securities referred to below) as of the end of the Transferee’s most
recent fiscal year (such amount being calculated in accordance with
Rule
144A).
|
3. The
term
“FAMILY OF INVESTMENT COMPANIES” as used herein means two or more registered
investment companies (or series thereof) that have the same investment adviser
or investment advisers that are affiliated (by virtue of being majority owned
subsidiaries of the same parent or because one investment adviser is a majority
owned subsidiary of the other).
4. The
term
“SECURITIES” as used herein does not include (i) securities of issuers that are
affiliated with the Transferee or are part of the Transferee’s Family of
Investment Companies, (ii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iii) bank deposit notes and certificates of deposit,
(iv) loan participations, (v) repurchase agreements, (vi) securities owned
but
subject to a repurchase agreement and (vii) currency, interest rate and
commodity swaps.
5. The
Transferee is familiar with Rule 144A and understands that the parties to which
this certification is being made are relying and will continue to rely on the
statements made herein because one or more sales to the Transferee will be
in
reliance on Rule 144A. In addition, the Transferee will only purchase for the
Transferee’s own account.
6. The
undersigned will notify the parties to which this certification is made of
any
changes in the information and conclusions herein. Until such notice, the
Transferee’s purchase of the Certificates will constitute a reaffirmation of
this certification by the undersigned as of the date of such
purchase.
Dated:
|
Print
Name of Transferee or Advisor
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
IF
AN ADVISER:
|
||
|
Print
Name of Transferee
|
||
FORM
OF TRANSFEREE REPRESENTATION LETTER
The
undersigned hereby certifies on behalf of the purchaser named below (the
“Purchaser”) as follows:
1. I
am an
executive officer of the Purchaser.
2. The
Purchaser is a “qualified institutional buyer”, as defined in Rule 144A, (“Rule
144A”) under the Securities Act of 1933, as amended.
3. As
of the
date specified below (which is not earlier than the last day of the Purchaser’s
most recent fiscal year), the amount of “securities”, computed for purposes of
Rule 144A, owned and invested on a discretionary basis by the Purchaser was
in
excess of $100,000,000.
|
Name
of Purchaser
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
Date
of
this certificate:
Date
of
information provided in paragraph 3:
1 Transferee
must own and/or invest on a discretionary basis at least $100,000,000 in
securities unless Transferee is a dealer, and, in that case, Transferee
must own
and/or invest on a discretionary basis at least $10,000,000 in securities.
$25,000,000 as demonstrated in its latest annual financial statements,
A COPY OF
WHICH IS ATTACHED HERETO.
EXHIBIT
F-2
FORM
OF
TRANSFER AFFIDAVIT AND AGREEMENT
|
STATE
OF NEW YORK
|
)
|
|
COUNTY
OF NEW YORK
|
)
|
__________________________,
being duly sworn, deposes, represents and warrants as follows:
1. I
am a
______________________ of ____________________________ (the “Owner”) a
corporation duly organized and existing under the laws of ______________, the
record owner of Xxxxxxxxxx Mortgage Loan Trust, Series 2006-RFC1 Asset-Backed
Pass-Through Certificates, Class R-I Certificates and the Class R-II, (the
“Class R Certificates”), on behalf of whom I make this affidavit and agreement.
Capitalized terms used but not defined herein have the respective meanings
assigned thereto in the Pooling and Servicing Agreement pursuant to which the
Class R Certificates were issued.
2. The
Owner
(i) is and will be a “Permitted Transferee” as of ____________, 20__ and (ii) is
acquiring the Class R Certificates for its own account or for the account of
another Owner from which it has received an affidavit in substantially the
same
form as this affidavit. A “Permitted Transferee” is any person other than a
“disqualified organization” or a possession of the United States. For this
purpose, a “disqualified organization” means the United States, any state or
political subdivision thereof, any agency or instrumentality of any of the
foregoing (other than an instrumentality all of the activities of which are
subject to tax and, except for the Federal Home Loan Mortgage Corporation,
a
majority of whose board of directors is not selected by any such governmental
entity) or any foreign government, international organization or any agency
or
instrumentality of such foreign government or organization, any rural electric
or telephone cooperative, or any organization (other than certain farmers’
cooperatives) that is generally exempt from federal income tax unless such
organization is subject to the tax on unrelated business taxable
income.
3. The
Owner
either (i) is not a Plan, any Person acting, directly or indirectly, on behalf
of any such Plan or any Person acquiring the Class R Certificates with “plan
assets” of a Plan (within the meaning of the Department of Labor regulation
promulgated at 29 C. F. R. § 2510.3-101), or (ii) has provided the Trustee with
an Opinion of Counsel acceptable to and in form and substance satisfactory
to
the Depositor, the Trustee and the Servicer to the effect that the purchase
and
holding of the Class R Certificates are permissible under applicable law, will
not constitute or result in any non-exempt prohibited transaction under Section
406 of ERISA or Section 4975 of the Code (or comparable provisions of any
subsequent enactments) and will not subject the Depositor, the Servicer, the
Trustee or the Trust Fund to any obligation or liability (including obligations
or liabilities under ERISA or Section 4975 of the Code) in addition to those
undertaken in the Pooling and Servicing Agreement, which Opinion of Counsel
shall not be an expense of the Depositor, the Servicer, the Trustee or the
Trust
Fund.
4. The
Owner
is aware (i) of the tax that would be imposed on transfers of the Class R
Certificates to disqualified organizations under the Internal Revenue Code
of
1986 that applies to all transfers of the Class R Certificates after March
31,
1988; (ii) that such tax would be on the transferor or, if such transfer is
through an agent (which person includes a broker, nominee or middleman) for
a
non-Permitted Transferee, on the agent; (iii) that the person otherwise liable
for the tax shall be relieved of liability for the tax if the transferee
furnishes to such person an affidavit that the transferee is a Permitted
Transferee and, at the time of transfer, such person does not have actual
knowledge that the affidavit is false; and (iv) that each of the Class R
Certificates may be a “noneconomic residual interest” within the meaning of
proposed Treasury regulations promulgated under the Code and that the transferor
of a “noneconomic residual interest” will remain liable for any taxes due with
respect to the income on such residual interest, unless no significant purpose
of the transfer is to impede the assessment or collection of tax.
5. The
Owner
is aware of the tax imposed on a “pass-through entity” holding the Class R
Certificates if, at any time during the taxable year of the pass-through entity,
a non-Permitted Transferee is the record holder of an interest in such entity.
(For this purpose, a “pass-through entity” includes a regulated investment
company, a real estate investment trust or common trust fund, a partnership,
trust or estate, and certain cooperatives.)
6. The
Owner
is aware that the Trustee will not register the transfer of any Class R
Certificate unless the transferee, or the transferee’s agent, delivers to the
Trustee, among other things, an affidavit in substantially the same form as
this
affidavit. The Owner expressly agrees that it will not consummate any such
transfer if it knows or believes that any of the representations contained
in
such affidavit and agreement are false.
7. The
Owner
consents to any additional restrictions or arrangements that shall be deemed
necessary upon advice of counsel to constitute a reasonable arrangement to
ensure that the Class R Certificates will only be owned, directly or indirectly,
by an Owner that is a Permitted Transferee.
8. The
Owner’s taxpayer identification number is _________________.
9. The
Owner
has reviewed the restrictions set forth on the face of the Class R Certificates
and the provisions of Section 5.02(d) of the Pooling and Servicing Agreement
under which the Class R Certificates were issued (in particular, clauses
(iii)(A) and (iii)(B) of Section 5.02(d) which authorize the Trustee to deliver
payments to a person other than the Owner and negotiate a mandatory sale by
the
Trustee in the event that the Owner holds such Certificate in violation of
Section 5.02(d)); and that the Owner expressly agrees to be bound by and to
comply with such restrictions and provisions.
10. The
Owner
is not acquiring and will not transfer the Class R Certificates in order to
impede the assessment or collection of any tax.
11. The
Owner
anticipates that it will, so long as it holds the Class R Certificates, have
sufficient assets to pay any taxes owed by the holder of such Class R
Certificates, and hereby represents to and for the benefit of the person from
whom it acquired the Class R Certificates that the Owner intends to pay taxes
associated with holding such Class R Certificates as they become due, fully
understanding that it may incur tax liabilities in excess of any cash flows
generated by the Class R Certificates.
12. The
Owner
has no present knowledge that it may become insolvent or subject to a bankruptcy
proceeding for so long as it holds the Class R Certificates.
13. The
Owner
has no present knowledge or expectation that it will be unable to pay any United
States taxes owed by it so long as any of the Certificates remain
outstanding.
14. The
Owner
is not acquiring the Class R Certificates with the intent to transfer the Class
R Certificates to any person or entity that will not have sufficient assets
to
pay any taxes owed by the holder of such Class R Certificates, or that may
become insolvent or subject to a bankruptcy proceeding, for so long as the
Class
R Certificates remain outstanding.
15. The
Owner
will, in connection with any transfer that it makes of the Class R Certificates,
obtain from its transferee the representations required by Section 5.02(d)
of
the Pooling and Servicing Agreement under which the Class R Certificate were
issued and will not consummate any such transfer if it knows, or knows facts
that should lead it to believe, that any such representations are
false.
16. The
Owner
will, in connection with any transfer that it makes of the Class R Certificates,
deliver to the Trustee an affidavit, which represents and warrants that it
is
not transferring the Class R Certificates to impede the assessment or collection
of any tax and that it has no actual knowledge that the proposed transferee:
(i)
has insufficient assets to pay any taxes owed by such transferee as holder
of
the Class R Certificates; (ii) may become insolvent or subject to a bankruptcy
proceeding for so long as the Class R Certificates remains outstanding; and
(iii) is not a “Permitted Transferee”.
17. The
Owner
is a citizen or resident of the United States, a corporation, partnership or
other entity created or organized in, or under the laws of, the United States
or
any political subdivision thereof, or an estate or trust whose income from
sources without the United States may be included in gross income for United
States federal income tax purposes regardless of its connection with the conduct
of a trade or business within the United States.
18. The
Owner
of the Class R Certificate, hereby agrees that in the event that the Trust
Fund
created by the Pooling and Servicing Agreement is terminated pursuant to Section
9.01 thereof, the undersigned shall assign and transfer to the Holders of the
Class CE Certificates (with respect to a termination of REMIC I) any amounts
in
excess of par received in connection with such termination. Accordingly, in
the
event of such termination, the Trustee is hereby authorized to withhold any
such
amounts in excess of par and to pay such amounts directly to the Holders of
the
Class CE Certificates. This agreement shall bind and be enforceable against
any
successor, transferee or assigned of the undersigned in the Class R Certificate.
In connection with any transfer of the Class R Certificate, the Owner shall
obtain an agreement substantially similar to this clause from any subsequent
owner.
IN
WITNESS WHEREOF, the Owner has caused this instrument to be executed on its
behalf, pursuant to the authority of its Board of Directors, by its [Vice]
President, attested by its [Assistant] Secretary, this ____ day of __________,
20__.
|
[OWNER]
|
||||||
|
By:
|
||||||
|
Name:
|
||||||
|
Title:
|
[Vice]
President
|
|||||
|
ATTEST:
|
||||||
|
By:
|
||||||
|
Name:
|
||||||
|
Title:
|
[Assistant]
Secretary
|
|||||
Personally
appeared before me the above-named, known or proved to me to be the same person
who executed the foregoing instrument and to be a [Vice] President of the Owner,
and acknowledged to me that [he/she] executed the same as [his/her] free act
and
deed and the free act and deed of the Owner.
Subscribed
and sworn before me this ____ day of __________, 20___.
|
Notary
Public
|
|
|
County
of __________________
|
|
|
State
of ___________________
|
|
|
My
Commission expires:
|
FORM
OF TRANSFEROR AFFIDAVIT
|
STATE
OF
|
)
|
|
COUNTY
OF
|
)
|
__________________________,
being duly sworn, deposes, represents and warrants as follows:
1. I
am a
____________________ of ____________________________ (the “Owner”), a
corporation duly organized and existing under the laws of ______________, on
behalf of whom I make this affidavit.
2. The
Owner
is not transferring the Class R Certificates (the “Residual Certificates”) to
impede the assessment or collection of any tax.
3. The
Owner
has no actual knowledge that the Person that is the proposed transferee (the
“Purchaser”) of the Residual Certificates: (i) has insufficient assets to pay
any taxes owed by such proposed transferee as holder of the Residual
Certificates; (ii) may become insolvent or subject to a bankruptcy proceeding
for so long as the Residual Certificates remain outstanding and (iii) is not
a
Permitted Transferee.
4. The
Owner
understands that the Purchaser has delivered to the Trustee a transfer affidavit
and agreement in the form attached to the Pooling and Servicing Agreement as
Exhibit F-2. The Owner does not know or believe that any representation
contained therein is false.
5. At
the
time of transfer, the Owner has conducted a reasonable investigation of the
financial condition of the Purchaser as contemplated by Treasury Regulations
Section 1.860E-1(c)(4)(i) and, as a result of that investigation, the Owner
has
determined that the Purchaser has historically paid its debts as they became
due
and has found no significant evidence to indicate that the Purchaser will not
continue to pay its debts as they become due in the future. The Owner
understands that the transfer of a Residual Certificate may not be respected
for
United States income tax purposes (and the Owner may continue to be liable
for
United States income taxes associated therewith) unless the Owner has conducted
such an investigation.
6. Capitalized
terms not otherwise defined herein shall have the meanings ascribed to them
in
the Pooling and Servicing Agreement.
IN
WITNESS WHEREOF, the Owner has caused this instrument to be executed on its
behalf, pursuant to the authority of its Board of Directors, by its [Vice]
President, attested by its [Assistant] Secretary, this ____ day of ___________,
20__.
|
[OWNER]
|
||||||
|
By:
|
||||||
|
Name:
|
||||||
|
Title:
|
[Vice]
President
|
|||||
|
ATTEST:
|
||||||
|
By:
|
||||||
|
Name:
|
||||||
|
Title:
|
[Assistant]
Secretary
|
|||||
Personally
appeared before me the above-named , known or proved to me to be the same person
who executed the foregoing instrument and to be a [Vice] President of the Owner,
and acknowledged to me that [he/she] executed the same as [his/her] free act
and
deed and the free act and deed of the Owner.
Subscribed
and sworn before me this ____ day of __________, 20___.
|
Notary
Public
|
|
|
County
of __________________
|
|
|
State
of ___________________
|
|
|
My
Commission expires:
|
EXHIBIT
G
FORM
OF
CERTIFICATION WITH RESPECT TO ERISA AND THE CODE
_____________,
20__
Xxxxx
Fargo Bank, N.A.
Sixth
and
Marquette
Xxxxxxxxxxx,
XX 00000-0000
Attention:
Corporate Trust Services-Xxxxxxxxxx Mortgage Loan Trust, 2006-RFC1
|
Re:
|
Xxxxxxxxxx
Mortgage Loan Trust, Series 2006-RFC1 Asset-Backed Pass-Through
Certificates
|
|
Dear
Sirs:
_______________________
(the “Transferee”) intends to acquire from _____________________ (the
“Transferor”) $____________ Initial Certificate Principal Balance of Xxxxxxxxxx
Mortgage Loan Trust, Series 2006-RFC1 Asset-Backed Pass-Through Certificates,
Class [CE] [P] [R](the “Certificates”), issued pursuant to a Pooling and
Servicing Agreement (the “Pooling and Servicing Agreement”) dated as of May 1,
2006, among Stanwich Asset Acceptance Company, L.L.C. as depositor (the
“Depositor”), Homecomings Financial Network, Inc. as servicer (the “Servicer”)
and Xxxxx Fargo Bank, N.A. as trustee (the “Trustee”). Capitalized terms used
herein and not otherwise defined shall have the meanings assigned thereto in
the
Pooling and Servicing Agreement. The Transferee hereby certifies, represents
and
warrants to, and covenants with the Depositor, the Trustee and the Servicer
that:
The
Certificates or any interest therein are not being transferred to (i) any
“employee benefit plan” as defined in Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended (“ERISA”), that is subject to Title I of
ERISA, any “plan” as defined in Section 4975(e)(1) of the Internal Revenue Code
of 1986, as amended (the “Code”), that is subject to Section 4975 of the Code or
any entity deemed to hold plan assets of any of the foregoing (each, a “Plan”),
(ii) any Person acting, directly or indirectly, on behalf of any such Plan
or
(iii) any Person acquiring the Certificates with “plan assets” of a Plan (within
the meaning of the Department of Labor regulation promulgated at 29 C.F.R.
§
2510.3-101).
|
Very
truly yours,
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
EXHIBIT
H
FORM
OF
LOST NOTE AFFIDAVIT
Loan
#:
____________
Borrower:
_____________
LOST
NOTE
AFFIDAVIT
I,
as
____________________ of ______________________, a _______________ corporation
am
authorized to make this Affidavit on behalf of _____________________ (the
“Seller”). In connection with the administration of the Mortgage Loans held by
____________________, a _________________ corporation as Seller on behalf of
Stanwich Asset Acceptance Company, L.L.C., a Delaware limited liability company
(the “Purchaser”), _____________________ (the “Deponent”), being duly sworn,
deposes and says that:
|
1.
|
The
Seller’s address is:
|
|
|
2.
|
The
Seller previously delivered to the Purchaser a signed Initial
Certification with respect to such Mortgage and/or Assignment of
Mortgage;
|
|
|
3.
|
Such
Mortgage Note and/or Assignment of Mortgage was assigned or sold
to the
Purchaser by ________________________, a ____________ corporation
pursuant
to the terms and provisions of a Mortgage Loan Purchase Agreement
dated as
of __________ __, _____;
|
|
|
4.
|
Such
Mortgage Note and/or Assignment of Mortgage is not outstanding pursuant
to
a request for release of Documents;
|
|
|
5.
|
Aforesaid
Mortgage Note and/or Assignment of Mortgage (the “Original”) has been
lost;
|
|
|
6.
|
Deponent
has made or caused to be made a diligent search for the Original
and has
been unable to find or recover same;
|
|
|
7.
|
The
Seller was the Seller of the Original at the time of the loss;
and
|
|
|
8.
|
Deponent
agrees that, if said Original should ever come into Seller’s possession,
custody or power, Seller will immediately and without consideration
surrender the Original to the Purchaser.
|
|
|
9.
|
Attached
hereto is a true and correct copy of (i) the Note, endorsed in blank
by
the Mortgagee and (ii) the Mortgage or Deed of Trust (strike one)
which
secures the Note, which Mortgage or Deed of Trust is recorded in
the
county where the property is located.
|
|
|
10.
|
Deponent
hereby agrees that the Seller (a) shall indemnify and hold harmless
the
Purchaser, its successors and assigns, against any loss, liability
or
damage, including reasonable attorney’s fees, resulting from the
unavailability of any Notes, including but not limited to any loss,
liability or damage arising from (i) any false statement contained
in this
Affidavit, (ii) any claim of any party that has already purchased
a
mortgage loan evidenced by the Lost Note or any interest in such
mortgage
loan, (iii) any claim of any borrower with respect to the existence
of
terms of a mortgage loan evidenced by the Lost Note on the related
property to the fact that the mortgage loan is not evidenced by an
original note and (iv) the issuance of a new instrument in lieu thereof
(items (i) through (iv) above hereinafter referred to as the “Losses”) and
(b) if required by any Rating Agency in connection with placing such
Lost
Note into a Pass-Through Transfer, shall obtain a surety from an
insurer
acceptable to the applicable Rating Agency to cover any Losses with
respect to such Lost Note.
|
|
|
11.
|
This
Affidavit is intended to be relied upon by the Purchaser, its successors
and assigns. _____________________, a ______________ corporation
represents and warrants that is has the authority to perform its
obligations under this Affidavit of Lost Note.
|
|
Executed
this ____ day, of ___________ ______.
|
SELLER
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
On
this
_____ day of ________, _____, before me appeared _________________ to me
personally known, who being duly sworn did say that he is the
_____________________ of ____________________ a ______________ corporation
and
that said Affidavit of Lost Note was signed and sealed on behalf of such
corporation and said acknowledged this instrument to be the free act and deed
of
said corporation.
|
Signature:
|
|
|
[Seal]
|
|
EXHIBIT
I-1
FORM
OF
ANNUAL CERTIFICATION
|
Re:
|
The
Pooling and Servicing Agreement dated May 1, 2006 (the “Agreement”) by and
among Stanwich Asset Acceptance Company, L.L.C. as depositor (the
“Depositor”), Homecomings Financial Network, Inc. as servicer (the
“Servicer”) and Xxxxx Fargo Bank, N.A. as trustee (the
“Trustee”);
|
I,
________________________________, the _______________________ of Homecomings
Financial Network, Inc., certify to the Depositor, and its officers, with the
knowledge and intent that they will rely upon this certification,
that:
(1) I
have
reviewed the servicer compliance statement of the Servicer provided in
accordance with Item 1123 of Regulation AB (the “Compliance Statement”), the
report on assessment of the Servicer’s compliance with the applicable servicing
criteria set forth in Item 1122(d) of Regulation AB (the “Servicing Criteria”),
provided in accordance with Rules 13a-18 and 15d-18 under Securities Exchange
Act of 1934, as amended (the “Exchange Act”) and Item 1122 of Regulation AB (the
“Servicing Assessment”), the registered public accounting firm’s attestation
report provided in accordance with Rules 13a-18 and 15d-18 under the Exchange
Act and Section 1122(b) of Regulation AB (the “Attestation
Report”), and all servicing reports, officer’s certificates and other
information relating to the servicing of the Mortgage Loans by the Servicer
during 200[ ] that were delivered by the Servicer to the Depositor and the
Trustee pursuant to the Agreement (collectively, the “Servicer Servicing
Information”);
(2) Based
on
my knowledge, the Servicer Servicing Information, taken as a whole, does not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in the light of the circumstances under
which such statements were made, not misleading with respect to the period
of
time covered by the Servicer Servicing Information;
(3) Based
on
my knowledge, all of the Servicer Servicing Information required to be provided
by the Servicer under the Agreement has been provided to the Depositor and
the
Trustee;
(4) I
am
responsible for reviewing the activities performed by the Servicer as servicer
under the Agreement, and based on my knowledge and the compliance review
conducted in preparing the Compliance Statement and except as disclosed in
the
Compliance Statement, the Servicing Assessment or the Attestation Report, the
Servicer has fulfilled its obligations under the Agreement in all material
respects; and
(5) The
Compliance Statement required to be delivered by the Servicer pursuant to this
Agreement, and the Servicing Assessment and Attestation Report required to
be
provided by the Servicer and by each Subcontractor pursuant to the Agreement,
have been provided to the Depositor and the Trustee. Any material instances
of
noncompliance described in such reports have been disclosed to the Depositor
and
the Trustee. Any material instance of noncompliance with the Servicing Criteria
has been disclosed in such reports.
Date: _________________________
|
HOMECOMINGS
FINANCIAL NETWORK, INC.
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
Date:
|
||
EXHIBIT
I-2
FORM
OF
CERTIFICATION TO BE
PROVIDED
TO SERVICER BY THE TRUSTEE
|
Re:
|
Xxxxxxxxxx
Mortgage Loan Trust, Series 2006-RFC1 Asset-Backed Pass-Through
Certificates
|
I,
[identify the certifying individual], a [title] of Xxxxx Fargo Bank, N.A.,
as
Trustee of the Trust, hereby certify to Homecomings Financial Network, Inc.
(the
“Servicer”), and its officers, directors and affiliates, and with the knowledge
and intent that they will rely upon this certification, that:
1. The
Trustee has performed all of the duties specifically required to be performed
by
it pursuant to the provisions of the Pooling and Servicing Agreement dated
May
1, 2006 (the “Agreement”) by and among Stanwich Asset Acceptance Company, L.L.C.
as depositor (the “Depositor”), Homecomings Financial Network, Inc. as servicer
(the “Servicer”) and Xxxxx Fargo Bank, N.A. as trustee (the
“Trustee”);
2. Based
on
my knowledge, the information in these distribution reports prepared by the
Trustee, taken as a whole, does not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements made,
in
light of the circumstances under which such statements were made, not misleading
as of the last day of the period covered by that annual report; and
3. Based
on
my knowledge, the distribution information required to be provided by the
Trustee under the Pooling and Servicing Agreement is included in these
reports.
Capitalized
terms used but not defined herein have the meanings ascribed to them in the
Agreement.
|
XXXXX
FARGO BANK, N.A., as Trustee
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
Date:
|
||
EXHIBIT
J
FORM
OF
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by [Homecomings Financial Network,
Inc.. (the “Servicer”)/Xxxxx Fargo Bank, N.A. (the “Trustee”)], shall address,
at a minimum, the criteria identified as below as “Applicable Servicing
Criteria”:
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
|
General
Servicing Considerations
|
|
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
Servicer,
Trustee
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
Servicer,
Trustee
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the pool assets are maintained.
|
N/A
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
|
Servicer
|
|
|
Cash
Collection and Administration
|
|
|
1122(d)(2)(i)
|
Payments
on pool assets are deposited into the appropriate custodial bank
accounts
and related bank clearing accounts no more than two business days
following receipt, or such other number of days specified in the
transaction agreements.
|
Servicer,
Trustee
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
Servicer,
Trustee
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
Servicer,
Trustee
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
Trustee
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
Servicer,
Trustee
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
Servicer,
Trustee
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
|
Servicer,
Trustee
|
|
|
Investor
Remittances and Reporting
|
|
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of pool assets serviced by the
servicer.
|
Trustee
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
Trustee
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
Trustee
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
Trustee
|
|
|
Pool
Asset Administration
|
|
|
1122(d)(4)(i)
|
Collateral
or security on pool assets is maintained as required by the transaction
agreements or related asset pool documents.
|
|
|
1122(d)(4)(ii)
|
Pool
assets and related documents are safeguarded as required by the
transaction agreements
|
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the
transaction agreements.
|
Servicer
|
|
1122(d)(4)(iv)
|
Payments
on pool assets, including any payoffs, made in accordance with the
related
pool asset documents are posted to the servicer’s obligor records
maintained no more than two business days after receipt, or such
other
number of days specified in the transaction agreements, and allocated
to
principal, interest or other items (e.g., escrow) in accordance with
the
related pool asset documents.
|
Servicer
|
|
1122(d)(4)(v)
|
The
servicer’s records regarding the pool assets agree with the servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
Servicer
|
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's pool asset (e.g.,
loan
modifications or re-agings) are made, reviewed and approved by authorized
personnel in accordance with the transaction agreements and related
pool
asset documents.
|
Servicer
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
Servicer
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period a
pool
asset is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent pool assets including, for example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
Servicer
|
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for pool assets with variable
rates
are computed based on the related pool asset documents.
|
Servicer
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s pool asset documents,
on at least an annual basis, or such other period specified in the
transaction agreements; (B) interest on such funds is paid, or credited,
to obligors in accordance with applicable pool asset documents and
state
laws; and (C) such funds are returned to the obligor within 30 calendar
days of full repayment of the related pool asset, or such other number
of
days specified in the transaction agreements.
|
Servicer
|
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
Servicer
|
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
Servicer
|
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
Servicer
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
Servicer,
Trustee
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth
in
the transaction agreements.
|
Trustee
|
|
|
|
|
|
[HOMECOMINGS
FINANCIAL NETWORK, INC., as Servicer/ XXXXX FARGO BANK, N.A., as
Trustee]
|
|
|
Date:_________________
|
By:________________________
Name:
Title:
|
EXHIBIT
K
FORM
OF
CAP CONTRACT AGREEMENT
CONFIRMATION
|
TO:
|
Xxxxx
Fargo Bank, N.A., not individually but solely as trustee for Xxxxxxxxxx
Mortgage Loan Trust, Series 2006-RFC1 with respect to the Xxxxxxxxxx
Mortgage Loan Trust, Series 2006-RFC1 Asset-Backed Pass-Through
Certificates
|
|
0000
Xxx Xxxxxxxx Xxxx
|
|
|
Xxxxxxxx,
Xxxxxxxx 00000
|
|
|
Attention:
|
Client
Manager-Xxxxxxxxxx Mortgage Loan Trust, 2006-RFC1
|
|
Telephone:
|
(000)
000-0000
|
|
Facsimile:
|
(000)
000-0000
|
|
FROM:
|
Swiss
Re Financial Products Corporation
|
|
00
Xxxx 00xx
Xxxxxx
|
|
|
Xxx
Xxxx, Xxx Xxxx 00000
|
|
|
Attention:
|
Head
of Operations
|
|
Facsimile.
|
(000)
000-0000
|
|
CC:
|
|
|
Attention:
|
Head
of Legal
|
|
Facsimile:
|
(000)
000-0000
|
|
DATE:
|
May
24, 2006
|
Transaction
Reference Number: 890472 - Class A Certificates
Dear
Sir/Madam,
The
purpose of this letter agreement is to confirm the terms and conditions of
the
transaction entered into between Xxxxx Fargo Bank, N.A., not individually
but
solely as trustee for Xxxxxxxxxx Mortgage Loan Trust, Series 2006-RFC1 with
respect to the Xxxxxxxxxx Mortgage Loan Trust, Series 2006-RFC1 Asset-Backed
Pass-Through Certificates, and Swiss Re Financial Products Corporation, a
corporation organized under the laws of the State of Delaware (each a “party”
and together “the parties”) on the Trade Date specified below (the
“Transaction”). This letter agreement constitutes a “Confirmation” as referred
to in the ISDA Master Agreement specified in paragraph 1 below. In this
Confirmation, “Party A” means Swiss Re Financial Products Corporation, and
“Party B” means Xxxxxxxxxx Mortgage Loan Trust, Series 2006-RFC1, by Xxxxx Fargo
Bank, N.A., not individually but solely as trustee for Xxxxxxxxxx Mortgage
Loan
Trust, Series 2006-RFC1 with respect to the Xxxxxxxxxx Mortgage Loan Trust,
Series 2006-RFC1 Asset-Backed Pass-Through Certificates.
The
definitions and provisions contained in the 2000 ISDA Definitions, as published
by the International Swaps and Derivatives Association, Inc. (the
“Definitions”), are incorporated into this Confirmation. In the event of any
inconsistency between the Definitions and this Confirmation, this Confirmation
will govern.
Other
capitalized terms used herein (but not otherwise defined) shall have the
meaning
specified in that certain Pooling and Servicing Agreement, dated as of May
1,
2006 (the “Pooling and Servicing Agreement”), among Stanwich Asset Acceptance
Company, L.L.C., as Depositor, Homecomings Financial Network, Inc., as Servicer,
and Xxxxx Fargo Bank, N.A., as Trustee (the “Trustee).
1. This
Confirmation evidences a complete binding agreement between the parties as
to
the terms of the Transaction to which this Confirmation relates. In addition,
the parties agree that for the purposes of this Transaction, this Confirmation
will supplement, form a part of, and be subject to an agreement in the form
of
the 1992 ISDA Master Agreement (Multicurrency-Cross Border) as if the parties
had executed an agreement in such form (but without any Schedule except for
the
elections noted below) on the Trade Date of the Transaction (such agreement,
the
“Form Master Agreement”). In the event of any inconsistency between the
provisions of the Form Master Agreement and this Confirmation, this Confirmation
will prevail for the purpose of this Transaction.
Each
party represents to the other party and will be deemed to represent to the
other
party on the date on which it enters into this Transaction that (absent a
written agreement between the parties that expressly imposes affirmative
obligations to the contrary for that Transaction):
(a) Non-Reliance.
Each
party has made its own independent decisions to enter into this Transaction
and
as to whether this Transaction is appropriate or proper for it based upon
its
own judgment and upon advice from such advisors as it has deemed necessary.
It
is not relying on any communication (written or oral) of the other party
as
investment advice or as a recommendation to enter into this Transaction;
it
being understood that information and explanations related to the terms and
conditions of this Transaction shall not be considered investment advice
or a
recommendation to enter into this Transaction. Further, such party has not
received from the other party any assurance or guarantee as to the expected
results of this Transaction.
(b) Evaluation
and Understanding.
It is
capable of evaluating and understanding (on its own behalf or through
independent professional advice), and understands and accepts, the terms,
conditions and risks of this Transaction. It is also capable of assuming,
and
assumes, the financial and other risks of this Transaction.
(c) Status
of Parties.
The
other party is not acting as an agent, fiduciary or advisor for it in respect
of
this Transaction.
2. The
terms
of the particular Transaction to which this Confirmation relates are as
follows:
|
Notional
Amount:
|
With
respect to any Calculation Period, the lesser of (i) the aggregate
Certificate Principal Balance of the Class A Certificates immediately
prior to the distribution date that occurs on or about the Floating
Rate
Payer Payment Date, and (ii) the amount specified in Schedule A
attached
hereto
|
|
Trade
Date:
|
May
17, 2006
|
|
Effective
Date:
|
May
24, 2006
|
|
Termination
Date:
|
February
25, 2009, subject to adjustment in accordance with the Following
Business
Day Convention.
|
|
Fixed
Amounts:
|
|
|
Fixed
Rate Payer:
|
Party
B
|
|
Payment
Date:
|
May
24, 2006
|
|
Fixed
Amount:
|
USD
10,100
|
|
Floating
Amounts:
|
|
|
Floating
Rate Payer:
|
Party
A
|
|
Cap
Rate I:
|
See
attached Schedule A under the Column “Cap Rate I (%)”.
|
|
Floating
Rate Payer Period End Dates:
|
The
25th
of
each month, commencing on 25th June 2006 in accordance with the
Following
Business Day Convention.
|
|
Floating
Rate Payer Payment Dates:
|
Early
Payment shall be applicable. The Floating Rate Payer Payment Dates
shall
be two Business Days prior to each Floating Rate Payer Period End
Date,
commencing on June 22, 2006 to and including the date which is
two
Business Days prior to the Termination Date.
|
|
Floating
Rate Option:
|
USD-LIBOR-BBA,
provided, however, for any Calculation Period, if the Floating
Rate Option
is greater than the rate set forth opposite such Calculation Period
as set
forth in Schedule A under the heading Cap Rate II (%), then the
Floating
Rate for such Calculation Period shall be deemed to be such
rate
|
|
Designated
Maturity:
|
One
month
|
|
Spread:
|
None
|
|
Floating
Rate Day Count Fraction:
|
Actual/360
|
|
Reset
Date:
|
First
day of each Calculation Period
|
|
Compounding:
|
Inapplicable
|
|
Business
Days:
|
New
York
|
|
Calculation
Agent:
|
Party
A; provided,
however,
if an Event of Default has occurred with respect to Party A, a
Reference
Market-maker,
as
designated by Party B, shall be the Calculation
Agent.
|
3. Form
Master Agreement.
(a) “Specified
Entity”
means,
in relation to Party A, for the purpose of Section 5(a)(v), Section 5(a)(vi),
Section 5(a)(vii) and Section 5(b)(iv) of the Form Master Agreement: Not
Applicable.
(b) “Specified
Entity”
means,
in relation to Party B, for the purpose of Section 5(a)(v), Section 5(a)(vi),
Section 5(a)(vii) and Section 5(b)(iv) of the Form Master Agreement: Not
Applicable.
(c) “Specified
Transaction”
will
have the meaning specified in Section 14 of the Form Master
Agreement.
(d) The
“Credit
Event Upon Merger”
provisions of Section 5(b)(iv) of the Form Master Agreement will not apply
to
Party A or to Party B.
(e) The
“Automatic
Early Termination” provision
of Section 6(a) of the Form Master Agreement will not apply to Party A or
to
Party B.
(f) Governing
Law.
The Form
Master Agreement will be governed by, and construed in accordance with, the
laws
of the State of New York without reference to its conflict of laws provisions
(except for Sections 5-1401 and 5-1402 of the New York General Obligations
Law).
(g) The
phrase “Termination
Currency”
means
United States Dollars.
(h) Payments
on Early Termination. For
the
purpose of Section 6(e) of the Form Master Agreement, Market Quotation and
Second Method will apply.
(i) Events
of Default.
The
Events of Default specified under Sections 5(a)(ii), 5(a)(iv), 5(a)(v) and
5(a)(vi) of the Form Master Agreement will not apply to Party A; 5(a)(ii),
5(a)(iii), 5(a)(iv), 5(a)(v) and 5(a)(vi) of the Form Master Agreement will
not
apply to Party B. With respect to Party B only, the provisions of Section
5(a)(vii) clause 2 will not be applicable.
(j) Tax
Event.
The
provisions of Section 2(d)(i)(4) and 2(d)(ii) of the printed Form Master
Agreement shall not apply to Party B and Party B shall not be required to
pay
any additional amounts referred to therein.
(k) No
Set-off.
Without
affecting the provisions of the Form Master Agreement requiring the calculation
of certain net payment amounts, as a result of an Event of Default or Additional
Termination Event or otherwise, all payments will be made without setoff
or
counterclaim. The provisions for Set-off set forth in Section 6(e) of the
Form
Master Agreement shall not apply for purposes of this Transaction.
4. Recording
of Conversations.
Each
party to this Transaction acknowledges and agrees to the tape (and/or other
electronic) recording of conversations between the parties to this Transaction
whether by one or other or both of the parties or their agents, and that
any
such recordings may be submitted in evidence in any Proceedings relating
to the
Form Master Agreement and/or this Transaction.
5. Credit
Support Document.
In
relation to Party A: A Guaranty of Swiss Re dated as of the date hereof,
in a
form acceptable to Party B and, if Party A is required pursuant to Paragraph
8
of this Confirmation to post collateral, an ISDA Credit Support
Annex.
In
relation to Party B: The Pooling and Servicing Agreement.
6. Credit
Support Provider.
In
relation to Party A: Swiss Reinsurance Company (“Swiss Re”).
In
relation to Party B: Not Applicable.
7. Account
Details.
Account
for payments to Party A:
PAYMENT
INSTRUCTION: XX
Xxxxxx
Chase Bank
Swift:
XXXXXX00
For
the
Account of Swiss Re Financial Products
ACCT
#:
066911184
Account
for payments to Party B:
PAYMENT
INSTRUCTION: Xxxxx
Fargo Bank, National Association
ABA#:
000-000-000
ACCT
#:
0000000000
ACCT
NAME: Corporate Trust Clearing
For
further credit to ACCT #: 50919101
REF:
Client Manager - Xxxxxxxxxx Mortgage Loan Trust 2006-RFC1
8. Additional
Termination Events.
Downgrade
of Party A.
For the
purpose of this section, a “Ratings Event” shall occur with respect to Party A
(or its Credit Support Provider) if the long-term and short-term senior
unsecured deposit ratings of Party A (or its Credit Support Provider) cease
to
be at least A and A-1 by Standard & Poor’s Ratings Service, a division of
the XxXxxx-Xxxx Companies, Inc. or any successor thereto (“S&P”) or at least
A1 and P-1 by Xxxxx’x Investors Service, Inc. or any successor thereto
(“Moody’s”) or at least A and F1 by Fitch Ratings Ltd. or any successor thereto
(“Fitch”), to the extent such obligations are rated by S&P or Moody’s or
Fitch. The failure by Party A to comply with the provisions of Section 15
hereof
shall constitute an Additional Termination Event for which Party A shall
be the
sole Affected Party.
Swap
Disclosure Event.
Upon the
occurrence of a Swap Disclosure Event (as defined below), if Party A has
not,
within 10 days after such Swap Disclosure Event (the “Response Period”) complied
with one of the solutions listed below, then an Additional Termination Event
shall have occurred with respect to Party A and Party A shall be the sole
Affected Party with respect to such Additional Termination Event.
It
shall
be a swap disclosure event (“Swap Disclosure Event”) if at any time after the
date hereof Xxxxxxxxxx Securities, LP (“Xxxxxxxxxx Securities”) or Stanwich
Asset Acceptance Company, L.L.C. (“Stanwich”) notifies Party A that in the
reasonable discretion of Xxxxxxxxxx Securities or Stanwich acting in good
faith,
the “aggregate significance percentage” of all derivative instruments (as such
term is defined in Item 1115(b)(2) of Regulation AB (as defined below)) provided
by Party A and any of its affiliates to Xxxxxxxxxx Mortgage Loan Trust, Series
2006-RFC1 (the “Significance Percentage”) is 10% or more.
Following
a Swap Disclosure Event, Party A shall take one of the following actions
at its
own expense: either (I) (a) (i) if the Significance Percentage is 10% or
more,
Party A shall provide in an XXXXX compatible format the information set forth
in
Item 1115(b)(1) of Regulation AB for Party A (or for its group of affiliated
entities, if applicable) or (ii) if the Significance Percentage is 20% or
more,
Party A provide in an XXXXX compatible format the information set forth in
Item
1115(b)(2) of Regulation AB for Party A (or for its group of affiliated
entities, if applicable) (collectively, the “Reg AB Information”), to Xxxxxxxxxx
Securities or Stanwich and (b) provide written consent to Xxxxxxxxxx Securities
and Stanwich to incorporation by reference of such current Reg AB Information
as
is filed with the Securities and Exchange Commission in the reports of Stanwich
filed pursuant to the Exchange Act, (c) if applicable, cause its outside
accounting firm to provide its consent to filing or incorporation by reference
of such accounting firm’s report relating to their audits of such current Reg AB
Information in the Exchange Act Reports of Stanwich, and (d) provide to
Xxxxxxxxxx Securities and Stanwich any updated Reg AB Information with respect
to Party A or any entity that consolidates Party A within five days of the
release of any such updated Reg AB Information;or (II) cause a Reg AB Approved
Entity (as defined below) to replace Party A as party to this Agreement on
terms
substantially similar to this Agreement prior to the expiration of the Response
Period and cause such Reg AB Approved Entity to provide the Reg AB Information
prior to the expiration of the Response Period; provided
however,
that no
such transfer to a Reg AB Approved Entity pursuant to (II) above shall occur
unless the Reg AB Approved entity agrees to terms identical to those contained
in Paragraph 16 of this Agreement. “Reg AB Approved Entity” means any entity
that (i) has the ability to provide the Reg AB Information and (ii) meets
or
exceeds the Approved Rating Threshold and satisfies the Ratings Agency
Condition.
“Regulation
AB” means Subpart 229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject
to
such clarification and interpretation as have been provided by the Securities
and Exchange Commission (“SEC”) 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 SEC, or as may be provided by the SEC or
its
staff from time to time.
Optional
Termination.
An
Additional Termination Event shall occur upon unrescindable notice by the
Terminator (as defined in the Pooling and Servicing Agreement) that it will
purchase all Mortgage Loans in accordance with Section 9.01 of the Pooling
and
Servicing Agreement. With respect to such Additional Termination Event, Party
B
shall be the sole Affected Party and this Transaction shall be the sole Affected
Transaction; provided, however, that notwithstanding Section 6(b)(iv) of
the
ISDA Form Master Agreement, only Party B may designate an Early Termination
Date
in respect of this Additional Termination Event.
9. Limitation
on Events of Default.
Notwithstanding the terms of Sections 5 and 6 of the Form Master Agreement,
if
at any time and so long as Party B has satisfied in full all its payment
obligations under Section 2(a)(i) of the Form Master Agreement and has at
the
time no future payment obligations, whether absolute or contingent, under
such
Section, then unless Party A is required pursuant to appropriate proceedings
to
return to Party B or otherwise returns to Party B upon demand of Party B
any
portion of any such payment, (a) the occurrence of an event described in
Section
5(a) of the Form Master Agreement with respect to Party B shall not
constitute an Event of Default or Potential Event of Default with respect
to
Party B as Defaulting Party and (b) Party A shall be entitled to designate
an Early Termination Date pursuant to Section 6 of the Form Master Agreement
only as a result of the occurrence of a Termination Event set forth in Section
5(b)(i) with respect to either Party A as the Affected Party. For purposes
of
the Transaction to which this Agreement relates, Party B’s only obligation under
Section 2(a)(i) of the Form Master Agreement is to pay the Fixed Amount on
the
Fixed Rate Payer Payment Date.
10. Waiver
of Right to Trial by Jury.
EACH
PARTY HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHTS TO TRIAL BY JURY WITH
RESPECT
TO ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
TRANSACTION.
11. Eligible
Contract Participant.
Each
party represents to the other party that it is an “eligible contract
participant” as defined in Section 1a(12) of the U.S. Commodity Exchange Act, as
amended.
12. Notice
by Facsimile Transmission.
Section
12(a) of the Form Master Agreement is hereby amended by deleting the
parenthetical “(except that a notice or other communication under Section 5 or 6
may not be given by facsimile transmission or electronic messaging
system).”
13. Multibranch
Party.
For
purpose of Section 10(c) of the Form Master Agreement: (a) Party
A
is not a Multibranch Party; and (b) Party B is not a Multibranch
Party.
14. Other
Provisions.
(a) Addresses
for notices. As set forth on page 1 hereof.
(b) For
the
purpose of Section 13(c) of the Form Master Agreement: (i) Party A appoints
as
its Process Agent, not applicable; and (ii) Party B appoints as its Process
Agent, not applicable.
(c) Payer
Representations.
For the
purpose of Section 3(e) of the Form Master Agreement, Party A and Party B
make
the following representation:
It
is not
required by any applicable law, as modified by the practice of any relevant
governmental revenue authority, of any relevant jurisdiction to make any
deduction or withholding for or on account of any tax from any payment (other
than interest under Section 2(e), 6(d)(ii), or 6(e) of the Form Master
Agreement) to be made by it to the other party under the Form Master Agreement.
In making this representation, it may rely on (i) the accuracy of any
representations made by the other party pursuant to Section 3(f) of the Form
Master Agreement, (ii) the satisfaction of the agreement contained in Section
4(a)(i) or 4(a)(iii) of the Form Master Agreement, and the accuracy and
effectiveness of any document provided by the other party pursuant to Section
4(a)(i) or 4(a)(iii) of the Form Master Agreement, and (iii) the
satisfaction of the agreement of the other party contained in Section 4(d)
of
the Form Master Agreement, provided
that it
shall
not be a breach of this representation where reliance is placed on clause
(ii)
and the other party does not deliver a form or document under Section 4(a)(iii)
by reason of material prejudice to its legal or commercial
position.
(d) Payee
Representations.
For the
purpose of Section 3(f) of the Form Master Agreement, Party A and Party B
make
the following representations:
(i) The
following representation applies to Party A: Party A is a corporation organized
under the laws of the State of Delaware.
(ii) The
following representation applies to Party B: Party B is a “U.S. person” as that
term is used in section 1.1441-4(a)(3)(ii) of the United States Treasury
Regulations (the “Regulations”) for United States federal income tax purposes.
(e) For
the
purpose of Section 4(a)(i) and (ii) of the Form Master Agreement, each Party
agrees to deliver the following documents as applicable:
(i) Tax
forms, documents or certificates to be delivered are:
|
Party
Required to deliver Document
|
Form/Document/Certificate
|
Date
by which to Delivered
|
|
Party
A and Party B
|
An
executed U.S. Internal Revenue Service Form W-9 (or any successor
thereto).
|
(i)
Before the first Payment Date hereunder, (ii) promptly upon reasonable
demand by the other party and (iii) promptly upon learning that
any such
form previously provided to the other party has become obsolete
or
incorrect.
|
(ii) Other
documents to be delivered are:
|
Party
Required to deliver Document
|
Form/Document/
Certificate
|
Date
by which to be Delivered
|
Covered
by Section 3(d) Representation
|
|
Party
A and Party B
|
Credit
Support Document, if any, specified herein, such Credit Support
Document
being duly executed if required.
|
Concurrently
with the execution of this agreement.
|
Yes
|
|
Party
A and Party B
|
Incumbency
certificate or other documents evidencing the authority of the
party
entering into this agreement or any other document executed in
connection
with this agreement.
|
Concurrently
with the execution of this agreement or of any other documents
executed in
connection with this agreement.
|
Yes
|
|
Party
B
|
Copy
of each report delivered under the Pooling and Servicing Agreement
and/or
any other Transaction Document.
|
Upon
availability.
|
Yes
|
|
Party
A
|
Legal
opinion from counsel for Party A concerning due authorization,
enforceability and related matters, addressed to the other party
and
acceptable to Party B.
|
Concurrently
with the execution of this agreement.
|
No
|
|
Party A
|
Certified
copies of all corporate, partnership, trust or membership authorizations,
as the case may be, and any other documents with respect to the
execution,
delivery and performance of this agreement and any Credit Support
Document
|
Upon
execution and delivery of this agreement
|
Yes
|
(f) “Affiliate”
will have the meaning specified in Section 14 of the Form Master Agreement;
provided, however, that Party B shall be deemed not to have any Affiliates
for
purposes of this Transaction.
(g) Non
Petition.
Party A
hereby agrees that it will not, prior to the date that is one year and one
day
(or, if longer, the applicable preference period) after all Certificates
(as
such term is defined in the Pooling and Servicing Agreement) issued by Party
B
pursuant to the Pooling and Servicing Agreement have been paid in full,
acquiesce, petition or otherwise invoke or cause Party B to invoke the process
of any court or governmental authority for the purpose of commencing or
sustaining a case against Party B under any federal or state bankruptcy,
insolvency or similar law or for the purpose of appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar official
for Party B or any substantial part of the property of Party B, or for the
purpose of ordering the winding up or liquidation of the affairs of Party
B.
Nothing herein shall prevent Party A from participating in any such proceeding
once commenced. The provisions of this paragraph shall survive the termination
of this Agreement.
(h) Trustee
Liability Limitation.
It is
expressly understood and agreed by the parties hereto that (i) this confirmation
is executed and delivered by Xxxxx Fargo Bank, N.A. (“Xxxxx Fargo”), not
individually or personally but solely as trustee, (ii) each of the
representations, undertakings and agreements herein made on the part of Party
B
is made and intended not as personal representations, undertakings and
agreements by Xxxxx Fargo but is made and intended for the purpose of binding
only Party B, (iii) nothing herein contained shall be construed as creating
any
liability on Xxxxx Fargo, individually or personally, to perform any covenant
either expressed or implied contained herein, and (iv) under no circumstances
shall Xxxxx Fargo be personally liable for the payment of any indebtedness
or
expenses of Party B or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by Party B hereunder
or
any other related documents. Any resignation or removal of Xxxxx Fargo as
trustee under the Pooling and Servicing Agreement shall require the assignment
of this confirmation to Xxxxx Fargo’s replacement.
(i) The
Form
Master Agreement is hereby amended as follows:
The
word
“third” shall be replaced by the word “second” in the third line of Section
5(a)(i) of the Form Master Agreement.
(j) Severability.
If any
term, provision, covenant, or condition of this Agreement, or the application
thereof to any party or circumstance, shall be held to be invalid or
unenforceable (in whole or in part) for any reason, the remaining terms,
provisions, covenants, and conditions hereof shall continue in full force
and
effect as if this Agreement had been executed with the invalid or unenforceable
portion eliminated, so long as this Agreement as so modified continues to
express, without material change, the original intentions of the parties
as to
the subject matter of this Agreement and the deletion of such portion of
this
Agreement will not substantially impair the respective benefits or expectations
of the parties.
The
parties shall endeavor to engage in good faith negotiations to replace any
invalid or unenforceable term, provision, covenant or condition with a valid
or
enforceable term, provision, covenant or condition, the economic effect of
which
comes as close as possible to that of the invalid or unenforceable term,
provision, covenant or condition.
15. Downgrade
of Party A.
If
a
Ratings Event (as defined in Section 8 hereof) shall occur and be continuing
with respect to Party A, then Party A shall (A) within 5 Business Days of
such
Ratings Event, give notice to Party B of the occurrence of such Ratings Event,
and (B) use reasonable efforts to transfer (at its own cost) Party A’s rights
and obligations hereunder to another party, subject to satisfaction of the
Rating Agency Condition (as defined below). Unless such a transfer by Party
A
has occurred within 20 Business Days (or within 10 Business Days in the event
that Party A’s long-term unsecured and unsubordinated debt rating is withdrawn
or reduced below “BBB-” by S&P) after the occurrence of a Ratings Event,
Party A shall no later than the end of such 20 Business Day period, post
eligible collateral at its own cost and satisfactory to Party B (“Eligible
Collateral”), to secure Party B’s exposure or potential exposure to Party A, and
such Eligible Collateral shall be provided in accordance with a Credit Support
Annex to be attached hereto and made a part hereof. The Eligible Collateral
to
be posted and the Credit Support Annex to be executed and delivered shall
be
subject to the Rating Agency Condition. Valuation and Posting of Eligible
Collateral shall occur weekly. Notwithstanding the addition of the Credit
Support Annex and the posting of Eligible Collateral, Party A shall continue
to
use reasonable efforts to transfer its rights and obligations hereunder to
an
acceptable third party; provided, however, that Party A’s obligations to find a
transferee and to post Eligible Collateral under such Credit Support Annex
shall
remain in effect only for so long as a Ratings Event is continuing with respect
to Party A. “Rating Agency Condition” means, with respect to any action to be
taken, a condition that is satisfied when S&P, Xxxxx’x and Fitch have
confirmed that such action would not result in the downgrade, qualification
(if
applicable) or withdrawal of the rating then assigned by such Rating Agency
to
the applicable class of Certificates.
16. Compliance
with Regulation AB.
(a) Party
A
agrees and acknowledges that Xxxxxxxxxx Securities and Stanwich may be required
under Regulation AB, to disclose certain financial information regarding
Party A
and Swiss Re depending on the applicable “significance percentage” of this
Agreement, as calculated from time to time in accordance with Item 1115 of
Regulation AB.
(b) Party
A,
or a Reg AB Approved Entity after a Swap Disclosure Event pursuant to Paragraph
8, as applicable, shall indemnify and hold harmless Xxxxxxxxxx Securities,
Stanwich, their respective directors or officers and any person controlling
Xxxxxxxxxx Securities or Stanwich, from and against any and all losses, claims,
damages and liabilities caused by any untrue statement or alleged untrue
statement of a material fact contained in the Reg AB Information that Party
A or
such Reg AB Approved Entity, as applicable, provides to Xxxxxxxxxx Securities
or
Stanwich pursuant to Paragraph 8 (the “Party A Information”) or caused by any
omission or alleged omission to state in the Party A Information by Party
A or
the Reg AB Approved Entity, as applicable, a material fact required to be
stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. For the avoidance
of
doubt, Party A shall provide the indemnity described above with respect to
any
Party A Information it is required to provide pursuant to Paragraph 8 and
any
Reg AB Approved Entity which has replaced Party A pursuant to Paragraph 8
shall
provide the indemnity described above with respect to any Party A Information
it
is required to provide from pursuant to Paragraph 8.
17. Netting
of Payments. The
parties agree that subparagraph (ii) of Section 2(c) of the Form Master
Agreement will apply to any Transaction.
Please
confirm that the foregoing correctly sets forth the terms and conditions
of our
agreement by returning within three (3) Business Days via telecopier an executed
copy of this Confirmation. Failure to respond within such period shall not
affect the validity or enforceability of this Transaction.
Yours
sincerely,
|
SWISS
RE FINANCIAL PRODUCTS CORPORATION
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
Confirmed
as of the date above:
By:
XXXXX
FARGO BANK, N.A., not individually but solely as trustee for Xxxxxxxxxx Mortgage
Loan Trust, Series 2006-RFC1 with respect to the Xxxxxxxxxx Mortgage Loan
Trust,
Series 2006-RFC1 Asset-Backed Pass-Through Certificates
|
By:
|
|
|
Name:
|
|
|
Title:
|
SCHEDULE
A
to the
Confirmation dated as of May 24, 2006,
Re:
Reference Number 890472
Amortization
Schedule, Floating
Rate Payer Period End Dates shall be subject
to adjustment in accordance with the Following Business Day
Convention.
|
From
and including
|
To
but excluding
|
Notional
Amount (USD)
|
Cap
Rate I
(%)
|
Cap
Rate II
(%)
|
|
May
24, 2006
|
June
25, 2006
|
582,870,000.00
|
7.601
|
11.416
|
|
June
25, 2006
|
July
25, 2006
|
576,592,067.90
|
8.117
|
11.415
|
|
July
25, 2006
|
August
25, 2006
|
568,606,062.90
|
7.858
|
11.415
|
|
August
25, 2006
|
September
25, 2006
|
558,917,003.90
|
7.865
|
11.414
|
|
September
25, 2006
|
October
25, 2006
|
547,541,111.70
|
8.141
|
11.413
|
|
October
25, 2006
|
November
25, 2006
|
534,509,880.30
|
7.885
|
11.412
|
|
November
25, 2006
|
December
25, 2006
|
519,862,490.70
|
8.162
|
11.410
|
|
December
25, 2006
|
January
25, 2007
|
503,661,683.60
|
7.908
|
11.409
|
|
January
25, 2007
|
February
25, 2007
|
486,123,403.30
|
7.922
|
11.407
|
|
February
25, 2007
|
March
25, 2007
|
467,445,367.00
|
8.801
|
11.405
|
|
March
25, 2007
|
April
25, 2007
|
448,662,600.20
|
7.962
|
11.402
|
|
April
25, 2007
|
May
25, 2007
|
430,420,451.00
|
8.251
|
11.400
|
|
May
25, 2007
|
June
25, 2007
|
412,704,841.10
|
8.001
|
11.397
|
|
June
25, 2007
|
July
25, 2007
|
395,500,521.60
|
8.293
|
11.395
|
|
July
25, 2007
|
August
25, 2007
|
378,792,686.60
|
8.045
|
11.392
|
|
August
25, 2007
|
September
25, 2007
|
362,566,959.90
|
8.069
|
11.389
|
|
September
25, 2007
|
October
25, 2007
|
346,809,449.40
|
8.372
|
11.385
|
|
October
25, 2007
|
November
25, 2007
|
331,506,788.80
|
8.125
|
11.382
|
|
November
25, 2007
|
December
25, 2007
|
316,124,139.10
|
8.431
|
11.378
|
|
December
25, 2007
|
January
25, 2008
|
301,054,961.70
|
8.253
|
11.374
|
|
January
25, 2008
|
February
25, 2008
|
276,323,141.70
|
8.339
|
11.366
|
|
February
25, 2008
|
March
25, 2008
|
248,372,259.10
|
10.560
|
11.359
|
|
March
25, 2008
|
April
25, 2008
|
222,362,836.40
|
10.694
|
11.355
|
|
April
25, 2008
|
May
25, 2008
|
198,450,768.50
|
11.177
|
11.349
|
|
May
25, 2008
|
June
25, 2008
|
176,241,853.30
|
10.951
|
11.343
|
|
June
25, 2008
|
July
25, 2008
|
161,491,501.70
|
11.472
|
11.472
|
|
July
25, 2008
|
August
25, 2008
|
150,251,933.80
|
11.223
|
11.333
|
|
August
25, 2008
|
September
25, 2008
|
139,392,739.20
|
11.862
|
11.862
|
|
September
25, 2008
|
October
25, 2008
|
128,892,891.30
|
12.684
|
12.684
|
|
October
25, 2008
|
November
25, 2008
|
118,739,717.90
|
12.454
|
12.454
|
|
November
25, 2008
|
December
25, 2008
|
108,848,960.70
|
13.097
|
13.097
|
|
December
25, 2008
|
January
25, 2009
|
99,265,556.31
|
12.945
|
12.945
|
|
January
25, 2009
|
February
25, 2009
|
89,722,235.35
|
13.268
|
13.268
|
CONFIRMATION
|
TO:
|
Xxxxx
Fargo Bank, N.A., not individually but solely as trustee for
Xxxxxxxxxx
Mortgage Loan Trust, Series 2006-RFC1 with respect to the Xxxxxxxxxx
Mortgage Loan Trust, Series 2006-RFC1 Asset-Backed Pass-Through
Certificates
|
|
|
0000
Xxx Xxxxxxxx Xxxx
|
|
|
Xxxxxxxx,
Xxxxxxxx 00000
|
|
Attention:
|
Client
Manager-Xxxxxxxxxx Mortgage Loan Trust, 2006-RFC1
|
|
Telephone:
|
(000)
000-0000
|
|
Facsimile:
|
(000)
000-0000
|
|
FROM:
|
Swiss
Re Financial Products Corporation
|
|
|
00
Xxxx 00xx
Xxxxxx
|
|
|
Xxx
Xxxx, Xxx Xxxx 00000
|
|
Attention:
|
Head
of Operations
|
|
Facsimile.
|
(000)
000-0000
|
|
CC:
|
|
|
Attention:
|
Head
of Legal
|
|
Facsimile:
|
(000)
000-0000
|
|
DATE:
|
May
24, 2006
|
DATE: May
24,
2006
Transaction
Reference Number: 890477 - Class M Certificates
Dear
Sir/Madam,
The
purpose of this letter agreement is to confirm the terms and conditions of
the
transaction entered into between Xxxxx Fargo Bank, N.A., not individually
but
solely as trustee for Xxxxxxxxxx Mortgage Loan Trust, Series 2006-RFC1 with
respect to the Xxxxxxxxxx Mortgage Loan Trust, Series 2006-RFC1 Asset-Backed
Pass-Through Certificates, and Swiss Re Financial Products Corporation, a
corporation organized under the laws of the State of Delaware (each a “party”
and together “the parties”) on the Trade Date specified below (the
“Transaction”). This letter agreement constitutes a “Confirmation” as referred
to in the ISDA Master Agreement specified in paragraph 1 below. In this
Confirmation, “Party A” means Swiss Re Financial Products Corporation, and
“Party B” means Xxxxxxxxxx Mortgage Loan Trust, Series 2006-RFC1, by Xxxxx Fargo
Bank, N.A., not individually but solely as trustee for Xxxxxxxxxx Mortgage
Loan
Trust, Series 2006-RFC1 with respect to the Xxxxxxxxxx Mortgage Loan Trust,
Series 2006-RFC1 Asset-Backed Pass-Through Certificates.
The
definitions and provisions contained in the 2000 ISDA Definitions, as published
by the International Swaps and Derivatives Association, Inc. (the
“Definitions”), are incorporated into this Confirmation. In the event of any
inconsistency between the Definitions and this Confirmation, this Confirmation
will govern.
Other
capitalized terms used herein (but not otherwise defined) shall have the
meaning
specified in that certain Pooling and Servicing Agreement, dated as of May
1,
2006 (the “Pooling and Servicing Agreement”), among Stanwich Asset Acceptance
Company, L.L.C., as Depositor, Homecomings Financial Network, Inc., as Servicer,
and Xxxxx Fargo Bank, N.A., as Trustee (the “Trustee).
1. This
Confirmation evidences a complete binding agreement between the parties as
to
the terms of the Transaction to which this Confirmation relates. In addition,
the parties agree that for the purposes of this Transaction, this Confirmation
will supplement, form a part of, and be subject to an agreement in the form
of
the 1992 ISDA Master Agreement (Multicurrency-Cross Border) as if the parties
had executed an agreement in such form (but without any Schedule except for
the
elections noted below) on the Trade Date of the Transaction (such agreement,
the
“Form Master Agreement”). In the event of any inconsistency between the
provisions of the Form Master Agreement and this Confirmation, this Confirmation
will prevail for the purpose of this Transaction.
Each
party represents to the other party and will be deemed to represent to the
other
party on the date on which it enters into this Transaction that (absent a
written agreement between the parties that expressly imposes affirmative
obligations to the contrary for that Transaction):
(a) Non-Reliance.
Each
party has made its own independent decisions to enter into this Transaction
and
as to whether this Transaction is appropriate or proper for it based upon
its
own judgment and upon advice from such advisors as it has deemed necessary.
It
is not relying on any communication (written or oral) of the other party
as
investment advice or as a recommendation to enter into this Transaction;
it
being understood that information and explanations related to the terms and
conditions of this Transaction shall not be considered investment advice
or a
recommendation to enter into this Transaction. Further, such party has not
received from the other party any assurance or guarantee as to the expected
results of this Transaction.
(b) Evaluation
and Understanding.
It is
capable of evaluating and understanding (on its own behalf or through
independent professional advice), and understands and accepts, the terms,
conditions and risks of this Transaction. It is also capable of assuming,
and
assumes, the financial and other risks of this Transaction.
(c) Status
of Parties.
The
other party is not acting as an agent, fiduciary or advisor for it in respect
of
this Transaction.
2. The
terms
of the particular Transaction to which this Confirmation relates are as
follows:
|
Notional
Amount:
|
With
respect to any Calculation Period, the lesser of (i) the aggregate
Certificate Principal Balance of the Class M Certificates immediately
prior to the distribution date that occurs on or about the Floating
Rate
Payer Payment Date, and (ii) the amount specified in Schedule A
attached
hereto
|
|
Trade
Date:
|
May
17, 2006
|
|
Effective
Date:
|
May
24, 2006
|
|
Termination
Date:
|
July
25, 2009, subject to adjustment in accordance with the Following
Business
Day Convention.
|
|
Fixed
Amounts:
|
|
|
Fixed
Rate Payer:
|
Party
B
|
|
Payment
Date:
|
May
24, 2006
|
|
Fixed
Amount:
|
USD
31,000
|
|
Floating
Amounts:
|
|
|
Floating
Rate Payer:
|
Party
A
|
|
Cap
Rate I:
|
See
attached Schedule A under the Column “Cap Rate I (%)”.
|
|
Floating
Rate Payer Period End Dates:
|
The
25th
of
each month, commencing on 25th June 2006 in accordance with the
Following
Business Day Convention.
|
|
Floating
Rate Payer Payment Dates:
|
Early
Payment shall be applicable. The Floating Rate Payer Payment Dates
shall
be two Business Days prior to each Floating Rate Payer Period End
Date,
commencing on June 22, 2006 to and including the date which is
two
Business Days prior to the Termination Date.
|
|
Floating
Rate Option:
|
USD-LIBOR-BBA,
provided, however, for any Calculation Period, if the Floating
Rate Option
is greater than the rate set forth opposite such Calculation Period
as set
forth in Schedule A under the heading Cap Rate II (%), then the
Floating
Rate for such Calculation Period shall be deemed to be such
rate
|
|
Designated
Maturity:
|
One
month
|
|
Spread:
|
None
|
|
Floating
Rate Day Count Fraction:
|
Actual/360
|
|
Reset
Date:
|
First
day of each Calculation Period
|
|
Compounding:
|
Inapplicable
|
|
Business
Days:
|
New
York
|
|
Calculation
Agent:
|
Party
A; provided,
however,
if an Event of Default has occurred with respect to Party A, a
Reference
Market-maker,
as
designated by Party B, shall be the Calculation
Agent.
|
3. Form
Master Agreement.
(a) “Specified
Entity”
means,
in relation to Party A, for the purpose of Section 5(a)(v), Section 5(a)(vi),
Section 5(a)(vii) and Section 5(b)(iv) of the Form Master Agreement: Not
Applicable.
(b) “Specified
Entity”
means,
in relation to Party B, for the purpose of Section 5(a)(v), Section 5(a)(vi),
Section 5(a)(vii) and Section 5(b)(iv) of the Form Master Agreement: Not
Applicable.
(c) “Specified
Transaction”
will
have the meaning specified in Section 14 of the Form Master
Agreement.
(d) The
“Credit
Event Upon Merger”
provisions of Section 5(b)(iv) of the Form Master Agreement will not apply
to
Party A or to Party B.
(e) The
“Automatic
Early Termination” provision
of Section 6(a) of the Form Master Agreement will not apply to Party A or
to
Party B.
(f) Governing
Law.
The Form
Master Agreement will be governed by, and construed in accordance with, the
laws
of the State of New York without reference to its conflict of laws provisions
(except for Sections 5-1401 and 5-1402 of the New York General Obligations
Law).
(g) The
phrase “Termination
Currency”
means
United States Dollars.
(h) Payments
on Early Termination. For
the
purpose of Section 6(e) of the Form Master Agreement, Market Quotation and
Second Method will apply.
(i) Events
of Default.
The
Events of Default specified under Sections 5(a)(ii), 5(a)(iv), 5(a)(v) and
5(a)(vi) of the Form Master Agreement will not apply to Party A; 5(a)(ii),
5(a)(iii), 5(a)(iv), 5(a)(v) and 5(a)(vi) of the Form Master Agreement will
not
apply to Party B. With respect to Party B only, the provisions of Section
5(a)(vii) clause 2 will not be applicable.
(j) Tax
Event.
The
provisions of Section 2(d)(i)(4) and 2(d)(ii) of the printed Form Master
Agreement shall not apply to Party B and Party B shall not be required to
pay
any additional amounts referred to therein.
(k) No
Set-off.
Without
affecting the provisions of the Form Master Agreement requiring the calculation
of certain net payment amounts, as a result of an Event of Default or Additional
Termination Event or otherwise, all payments will be made without setoff
or
counterclaim. The provisions for Set-off set forth in Section 6(e) of the
Form
Master Agreement shall not apply for purposes of this Transaction.
4. Recording
of Conversations.
Each
party to this Transaction acknowledges and agrees to the tape (and/or other
electronic) recording of conversations between the parties to this Transaction
whether by one or other or both of the parties or their agents, and that
any
such recordings may be submitted in evidence in any Proceedings relating
to the
Form Master Agreement and/or this Transaction.
5. Credit
Support Document.
In
relation to Party A: A Guaranty of Swiss Re dated as of the date hereof,
in a
form acceptable to Party B and, if Party A is required pursuant to Paragraph
8
of this Confirmation to post collateral, an ISDA Credit Support
Annex.
In
relation to Party B: The Pooling and Servicing Agreement.
6. Credit
Support Provider.
In
relation to Party A: Swiss Reinsurance Company (“Swiss Re”).
In
relation to Party B: Not Applicable.
7. Account
Details.
Account
for payments to Party A:
PAYMENT
INSTRUCTION: XX
Xxxxxx
Xxxxx Bank
Swift:
XXXXXX00
For
the
Account of Swiss Re Financial Products
ACCT
#:
066911184
Account
for payments to Party B:
PAYMENT
INSTRUCTION:
Xxxxx
Fargo Bank, National Association
ABA#:
000-000-000
ACCT
#:
0000000000
ACCT
NAME: Corporate Trust Clearing
For
further credit to ACCT #: 50919101
REF: Client
Manager - Xxxxxxxxxx Mortgage Loan Trust 2006-RFC1
8. Additional
Termination Events.
Downgrade
of Party A.
For the
purpose of this section, a “Ratings Event” shall occur with respect to Party A
(or its Credit Support Provider) if the long-term and short-term senior
unsecured deposit ratings of Party A (or its Credit Support Provider) cease
to
be at least A and A-1 by Standard & Poor’s Ratings Service, a division of
the XxXxxx-Xxxx Companies, Inc. or any successor thereto (“S&P”) or at least
A1 and P-1 by Xxxxx’x Investors Service, Inc. or any successor thereto
(“Moody’s”) or at least A and F1 by Fitch Ratings Ltd. or any successor thereto
(“Fitch”), to the extent such obligations are rated by S&P or Moody’s or
Fitch. The failure by Party A to comply with the provisions of Section 15
hereof
shall constitute an Additional Termination Event for which Party A shall
be the
sole Affected Party.
Swap
Disclosure Event.
Upon the
occurrence of a Swap Disclosure Event (as defined below), if Party A has
not,
within 10 days after such Swap Disclosure Event (the “Response Period”) complied
with one of the solutions listed below, then an Additional Termination Event
shall have occurred with respect to Party A and Party A shall be the sole
Affected Party with respect to such Additional Termination Event.
It
shall
be a swap disclosure event (“Swap Disclosure Event”) if at any time after the
date hereof Xxxxxxxxxx Securities, LP (“Xxxxxxxxxx Securities”) or Stanwich
Asset Acceptance Company, L.L.C. (“Stanwich”) notifies Party A that in the
reasonable discretion of Xxxxxxxxxx Securities or Stanwich acting in good
faith,
the “aggregate significance percentage” of all derivative instruments (as such
term is defined in Item 1115(b)(2) of Regulation AB (as defined below)) provided
by Party A and any of its affiliates to Xxxxxxxxxx Mortgage Loan Trust, Series
2006-RFC1 (the “Significance Percentage”) is 10% or more.
Following
a Swap Disclosure Event, Party A shall take one of the following actions
at its
own expense: either (I) (a) (i) if the Significance Percentage is 10% or
more,
Party A shall provide in an XXXXX compatible format the information set forth
in
Item 1115(b)(1) of Regulation AB for Party A (or for its group of affiliated
entities, if applicable) or (ii) if the Significance Percentage is 20% or
more,
Party A provide in an XXXXX compatible format the information set forth in
Item
1115(b)(2) of Regulation AB for Party A (or for its group of affiliated
entities, if applicable) (collectively, the “Reg AB Information”), to Xxxxxxxxxx
Securities or Stanwich and (b) provide written consent to Xxxxxxxxxx Securities
and Stanwich to incorporation by reference of such current Reg AB Information
as
is filed with the Securities and Exchange Commission in the reports of Stanwich
filed pursuant to the Exchange Act, (c) if applicable, cause its outside
accounting firm to provide its consent to filing or incorporation by reference
of such accounting firm’s report relating to their audits of such current Reg AB
Information in the Exchange Act Reports of Stanwich, and (d) provide to
Xxxxxxxxxx Securities and Stanwich any updated Reg AB Information with respect
to Party A or any entity that consolidates Party A within five days of the
release of any such updated Reg AB Information; or (II) cause a Reg AB Approved
Entity (as defined below) to replace Party A as party to this Agreement on
terms
substantially similar to this Agreement prior to the expiration of the Response
Period and cause such Reg AB Approved Entity to provide the Reg AB Information
prior to the expiration of the Response Period; provided
however,
that no
such transfer to a Reg AB Approved Entity pursuant to (II) above shall occur
unless the Reg AB Approved entity agrees to terms identical to those contained
in Paragraph 16 of this Agreement. “Reg AB Approved Entity” means any entity
that (i) has the ability to provide the Reg AB Information and (ii) meets
or
exceeds the Approved Rating Threshold and satisfies the Ratings Agency
Condition.
“Regulation
AB” means Subpart 229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject
to
such clarification and interpretation as have been provided by the Securities
and Exchange Commission (“SEC”) 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 SEC, or as may be provided by the SEC or
its
staff from time to time.
Optional
Termination.
An
Additional Termination Event shall occur upon unrescindable notice by the
Terminator (as defined in the Pooling and Servicing Agreement) that it will
purchase all Mortgage Loans in accordance with Section 9.01 of the Pooling
and
Servicing Agreement. With respect to such Additional Termination Event, Party
B
shall be the sole Affected Party and this Transaction shall be the sole Affected
Transaction; provided, however, that notwithstanding Section 6(b)(iv) of
the
ISDA Form Master Agreement, only Party B may designate an Early Termination
Date
in respect of this Additional Termination Event.
9. Limitation
on Events of Default.
Notwithstanding the terms of Sections 5 and 6 of the Form Master Agreement,
if
at any time and so long as Party B has satisfied in full all its payment
obligations under Section 2(a)(i) of the Form Master Agreement and has at
the
time no future payment obligations, whether absolute or contingent, under
such
Section, then unless Party A is required pursuant to appropriate proceedings
to
return to Party B or otherwise returns to Party B upon demand of Party B
any
portion of any such payment, (a) the occurrence of an event described in
Section
5(a) of the Form Master Agreement with respect to Party B shall not
constitute an Event of Default or Potential Event of Default with respect
to
Party B as Defaulting Party and (b) Party A shall be entitled to designate
an Early Termination Date pursuant to Section 6 of the Form Master Agreement
only as a result of the occurrence of a Termination Event set forth in Section
5(b)(i) with respect to either Party A as the Affected Party. For purposes
of
the Transaction to which this Agreement relates, Party B’s only obligation under
Section 2(a)(i) of the Form Master Agreement is to pay the Fixed Amount on
the
Fixed Rate Payer Payment Date.
10. Waiver
of Right to Trial by Jury.
EACH
PARTY HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHTS TO TRIAL BY JURY WITH
RESPECT
TO ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
TRANSACTION.
11. Eligible
Contract Participant.
Each
party represents to the other party that it is an “eligible contract
participant” as defined in Section 1a(12) of the U.S. Commodity Exchange Act, as
amended.
12. Notice
by Facsimile Transmission.
Section
12(a) of the Form Master Agreement is hereby amended by deleting the
parenthetical “(except that a notice or other communication under Section 5 or 6
may not be given by facsimile transmission or electronic messaging
system).”
13. Multibranch
Party.
For
purpose of Section 10(c) of the Form Master Agreement: (a) Party
A
is not a Multibranch Party; and (b) Party B is not a Multibranch
Party.
14. Other
Provisions.
(a) Addresses
for notices. As set forth on page 1 hereof.
(b) For
the
purpose of Section 13(c) of the Form Master Agreement: (i) Party A appoints
as
its Process Agent, not applicable; and (ii) Party B appoints as its Process
Agent, not applicable.
(c) Payer
Representations.
For the
purpose of Section 3(e) of the Form Master Agreement, Party A and Party B
make
the following representation:
It
is not
required by any applicable law, as modified by the practice of any relevant
governmental revenue authority, of any relevant jurisdiction to make any
deduction or withholding for or on account of any tax from any payment (other
than interest under Section 2(e), 6(d)(ii), or 6(e) of the Form Master
Agreement) to be made by it to the other party under the Form Master Agreement.
In making this representation, it may rely on (i) the accuracy of any
representations made by the other party pursuant to Section 3(f) of the Form
Master Agreement, (ii) the satisfaction of the agreement contained in Section
4(a)(i) or 4(a)(iii) of the Form Master Agreement, and the accuracy and
effectiveness of any document provided by the other party pursuant to Section
4(a)(i) or 4(a)(iii) of the Form Master Agreement, and (iii) the
satisfaction of the agreement of the other party contained in Section 4(d)
of
the Form Master Agreement, provided
that it
shall
not be a breach of this representation where reliance is placed on clause
(ii)
and the other party does not deliver a form or document under Section 4(a)(iii)
by reason of material prejudice to its legal or commercial
position.
(d) Payee
Representations.
For the
purpose of Section 3(f) of the Form Master Agreement, Party A and Party B
make
the following representations:
(i) The
following representation applies to Party A: Party A is a corporation organized
under the laws of the State of Delaware.
(ii) The
following representation applies to Party B: Party B is a “U.S. person” as that
term is used in section 1.1441-4(a)(3)(ii) of the United States Treasury
Regulations (the “Regulations”) for United States federal income tax purposes.
(e) For
the
purpose of Section 4(a)(i) and (ii) of the Form Master Agreement, each Party
agrees to deliver the following documents as applicable:
(i) Tax
forms, documents or certificates to be delivered are:
|
Party
Required to deliver Document
|
Form/Document/Certificate
|
Date
by which to Delivered
|
|
Party
A and Party B
|
An
executed U.S. Internal Revenue Service Form W-9 (or any successor
thereto).
|
(i)
Before the first Payment Date hereunder, (ii) promptly upon reasonable
demand by the other party and (iii) promptly upon learning that
any such
form previously provided to the other party has become obsolete
or
incorrect.
|
(ii) Other
documents to be delivered are:
|
Party
Required to deliver Document
|
Form/Document/
Certificate
|
Date
by which to be Delivered
|
Covered
by Section 3(d) Representation
|
|
Party
A and Party B
|
Credit
Support Document, if any, specified herein, such Credit Support
Document
being duly executed if required.
|
Concurrently
with the execution of this agreement.
|
Yes
|
|
Party
A and Party B
|
Incumbency
certificate or other documents evidencing the authority of the
party
entering into this agreement or any other document executed in
connection
with this agreement.
|
Concurrently
with the execution of this agreement or of any other documents
executed in
connection with this agreement.
|
Yes
|
|
Party
B
|
Copy
of each report delivered under the Pooling and Servicing Agreement
and/or
any other Transaction Document.
|
Upon
availability.
|
Yes
|
|
Party
A
|
Legal
opinion from counsel for Party A concerning due authorization,
enforceability and related matters, addressed to the other party
and
acceptable to Party B.
|
Concurrently
with the execution of this agreement.
|
No
|
|
Party A
|
Certified
copies of all corporate, partnership, trust or membership authorizations,
as the case may be, and any other documents with respect to the
execution,
delivery and performance of this agreement and any Credit Support
Document
|
Upon
execution and delivery of this agreement
|
Yes
|
(f) “Affiliate”
will have the meaning specified in Section 14 of the Form Master Agreement;
provided, however, that Party B shall be deemed not to have any Affiliates
for
purposes of this Transaction.
(g) Non
Petition.
Party A
hereby agrees that it will not, prior to the date that is one year and one
day
(or, if longer, the applicable preference period) after all Certificates
(as
such term is defined in the Pooling and Servicing Agreement) issued by Party
B
pursuant to the Pooling and Servicing Agreement have been paid in full,
acquiesce, petition or otherwise invoke or cause Party B to invoke the process
of any court or governmental authority for the purpose of commencing or
sustaining a case against Party B under any federal or state bankruptcy,
insolvency or similar law or for the purpose of appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar official
for Party B or any substantial part of the property of Party B, or for the
purpose of ordering the winding up or liquidation of the affairs of Party
B.
Nothing herein shall prevent Party A from participating in any such proceeding
once commenced. The provisions of this paragraph shall survive the termination
of this Agreement.
(h) Trustee
Liability Limitation.
It is
expressly understood and agreed by the parties hereto that (i) this confirmation
is executed and delivered by Xxxxx Fargo Bank, N.A. (“Xxxxx Fargo”), not
individually or personally but solely as trustee, (ii) each of the
representations, undertakings and agreements herein made on the part of Party
B
is made and intended not as personal representations, undertakings and
agreements by Xxxxx Fargo but is made and intended for the purpose of binding
only Party B, (iii) nothing herein contained shall be construed as creating
any
liability on Xxxxx Fargo, individually or personally, to perform any covenant
either expressed or implied contained herein, and (iv) under no circumstances
shall Xxxxx Fargo be personally liable for the payment of any indebtedness
or
expenses of Party B or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by Party B hereunder
or
any other related documents. Any resignation or removal of Xxxxx Fargo as
trustee under the Pooling and Servicing Agreement shall require the assignment
of this confirmation to Xxxxx Fargo’s replacement.
(i) The
Form
Master Agreement is hereby amended as follows:
The
word
“third” shall be replaced by the word “second” in the third line of Section
5(a)(i) of the Form Master Agreement.
(j) Severability.
If any
term, provision, covenant, or condition of this Agreement, or the application
thereof to any party or circumstance, shall be held to be invalid or
unenforceable (in whole or in part) for any reason, the remaining terms,
provisions, covenants, and conditions hereof shall continue in full force
and
effect as if this Agreement had been executed with the invalid or unenforceable
portion eliminated, so long as this Agreement as so modified continues to
express, without material change, the original intentions of the parties
as to
the subject matter of this Agreement and the deletion of such portion of
this
Agreement will not substantially impair the respective benefits or expectations
of the parties.
The
parties shall endeavor to engage in good faith negotiations to replace any
invalid or unenforceable term, provision, covenant or condition with a valid
or
enforceable term, provision, covenant or condition, the economic effect of
which
comes as close as possible to that of the invalid or unenforceable term,
provision, covenant or condition.
15. Downgrade
of Party A.
If
a
Ratings Event (as defined in Section 8 hereof) shall occur and be continuing
with respect to Party A, then Party A shall (A) within 5 Business Days of
such
Ratings Event, give notice to Party B of the occurrence of such Ratings Event,
and (B) use reasonable efforts to transfer (at its own cost) Party A’s rights
and obligations hereunder to another party, subject to satisfaction of the
Rating Agency Condition (as defined below). Unless such a transfer by Party
A
has occurred within 20 Business Days (or within 10 Business Days in the event
that Party A’s long-term unsecured and unsubordinated debt rating is withdrawn
or reduced below “BBB-” by S&P) after the occurrence of a Ratings Event,
Party A shall no later than the end of such 20 Business Day period, post
eligible collateral at its own cost and satisfactory to Party B (“Eligible
Collateral”), to secure Party B’s exposure or potential exposure to Party A, and
such Eligible Collateral shall be provided in accordance with a Credit Support
Annex to be attached hereto and made a part hereof. The Eligible Collateral
to
be posted and the Credit Support Annex to be executed and delivered shall
be
subject to the Rating Agency Condition. Valuation and Posting of Eligible
Collateral shall occur weekly. Notwithstanding the addition of the Credit
Support Annex and the posting of Eligible Collateral, Party A shall continue
to
use reasonable efforts to transfer its rights and obligations hereunder to
an
acceptable third party; provided, however, that Party A’s obligations to find a
transferee and to post Eligible Collateral under such Credit Support Annex
shall
remain in effect only for so long as a Ratings Event is continuing with respect
to Party A. “Rating Agency Condition” means, with respect to any action to be
taken, a condition that is satisfied when S&P, Xxxxx’x and Fitch have
confirmed that such action would not result in the downgrade, qualification
(if
applicable) or withdrawal of the rating then assigned by such Rating Agency
to
the applicable class of Certificates.
16. Compliance
with Regulation AB.
(a) Party
A
agrees and acknowledges that Xxxxxxxxxx Securities and Stanwich may be required
under Regulation AB, to disclose certain financial information regarding
Party A
and Swiss Re depending on the applicable “significance percentage” of this
Agreement, as calculated from time to time in accordance with Item 1115 of
Regulation AB.
(b) Party
A,
or a Reg AB Approved Entity after a Swap Disclosure Event pursuant to Paragraph
8, as applicable, shall indemnify and hold harmless Xxxxxxxxxx Securities,
Stanwich, their respective directors or officers and any person controlling
Xxxxxxxxxx Securities or Stanwich, from and against any and all losses, claims,
damages and liabilities caused by any untrue statement or alleged untrue
statement of a material fact contained in the Reg AB Information that Party
A or
such Reg AB Approved Entity, as applicable, provides to Xxxxxxxxxx Securities
or
Stanwich pursuant to Paragraph 8 (the “Party A Information”) or caused by any
omission or alleged omission to state in the Party A Information by Party
A or
the Reg AB Approved Entity, as applicable, a material fact required to be
stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. For the avoidance
of
doubt, Party A shall provide the indemnity described above with respect to
any
Party A Information it is required to provide pursuant to Paragraph 8 and
any
Reg AB Approved Entity which has replaced Party A pursuant to Paragraph 8
shall
provide the indemnity described above with respect to any Party A Information
it
is required to provide from pursuant to Paragraph 8.
17. Netting
of Payments. The
parties agree that subparagraph (ii) of Section 2(c) of the Form Master
Agreement will apply to any Transaction.
Please
confirm that the foregoing correctly sets forth the terms and conditions
of our
agreement by returning within three (3) Business Days via telecopier an executed
copy of this Confirmation. Failure to respond within such period shall not
affect the validity or enforceability of this Transaction.
Yours
sincerely,
SWISS
RE
FINANCIAL PRODUCTS CORPORATION
By: ________________________________________
Name:
Title:
Confirmed
as of the date above:
By:
XXXXX
FARGO BANK, N.A., not individually but solely as trustee for Xxxxxxxxxx Mortgage
Loan Trust, Series 2006-RFC1 with respect to the Xxxxxxxxxx Mortgage Loan
Trust,
Series 2006-RFC1 Asset-Backed Pass-Through Certificates
By: __________________________________________
Name:
Title:
SCHEDULE
A
to the
Confirmation dated as of May 24, 2006,
Re:
Reference Number 890477
Amortization
Schedule, Floating
Rate Payer Period End Dates shall be subject
to adjustment in accordance with the Following Business Day
Convention.
|
From
and including
|
To
but excluding
|
Notional
Amount (USD)
|
Cap
Rate I
(%)
|
Cap
Rate II
(%)
|
|
May
24, 2006
|
June
25, 2006
|
156,380,000.00
|
6.703
|
10.884
|
|
June
25, 2006
|
July
25, 2006
|
156,380,000.00
|
7.191
|
10.884
|
|
July
25, 2006
|
August
25, 2006
|
156,380,000.00
|
6.939
|
10.884
|
|
August
25, 2006
|
September
25, 2006
|
156,380,000.00
|
6.940
|
10.884
|
|
September
25, 2006
|
October
25, 2006
|
156,380,000.00
|
7.196
|
10.884
|
|
October
25, 2006
|
November
25, 2006
|
156,380,000.00
|
6.944
|
10.884
|
|
November
25, 2006
|
December
25, 2006
|
156,380,000.00
|
7.197
|
10.884
|
|
December
25, 2006
|
January
25, 2007
|
156,380,000.00
|
6.945
|
10.884
|
|
January
25, 2007
|
February
25, 2007
|
156,380,000.00
|
6.946
|
10.884
|
|
February
25, 2007
|
March
25, 2007
|
156,380,000.00
|
7.758
|
10.884
|
|
March
25, 2007
|
April
25, 2007
|
156,380,000.00
|
6.951
|
10.884
|
|
April
25, 2007
|
May
25, 2007
|
156,380,000.00
|
7.204
|
10.884
|
|
May
25, 2007
|
June
25, 2007
|
156,380,000.00
|
6.952
|
10.884
|
|
June
25, 2007
|
July
25, 2007
|
156,380,000.00
|
7.205
|
10.884
|
|
July
25, 2007
|
August
25, 2007
|
156,380,000.00
|
6.954
|
10.884
|
|
August
25, 2007
|
September
25, 2007
|
156,380,000.00
|
6.955
|
10.884
|
|
September
25, 2007
|
October
25, 2007
|
156,380,000.00
|
7.212
|
10.884
|
|
October
25, 2007
|
November
25, 2007
|
156,380,000.00
|
6.960
|
10.884
|
|
November
25, 2007
|
December
25, 2007
|
156,380,000.00
|
7.214
|
10.884
|
|
December
25, 2007
|
January
25, 2008
|
156,380,000.00
|
7.023
|
10.884
|
|
January
25, 2008
|
February
25, 2008
|
156,380,000.00
|
7.047
|
10.884
|
|
February
25, 2008
|
March
25, 2008
|
156,380,000.00
|
8.959
|
10.884
|
|
March
25, 2008
|
April
25, 2008
|
156,380,000.00
|
8.965
|
10.884
|
|
April
25, 2008
|
May
25, 2008
|
156,380,000.00
|
9.259
|
10.884
|
|
May
25, 2008
|
June
25, 2008
|
156,380,000.00
|
8.914
|
10.884
|
|
June
25, 2008
|
July
25, 2008
|
156,380,000.00
|
9.237
|
10.884
|
|
July
25, 2008
|
August
25, 2008
|
156,380,000.00
|
8.921
|
10.884
|
|
August
25, 2008
|
September
25, 2008
|
156,380,000.00
|
9.334
|
10.884
|
|
September
25, 2008
|
October
25, 2008
|
156,380,000.00
|
9.871
|
10.884
|
|
October
25, 2008
|
November
25, 2008
|
156,380,000.00
|
9.526
|
10.884
|
|
November
25, 2008
|
December
25, 2008
|
156,380,000.00
|
9.857
|
10.884
|
|
December
25, 2008
|
January
25, 2009
|
156,380,000.00
|
9.532
|
10.884
|
|
January
25, 2009
|
February
25, 2009
|
156,380,000.00
|
9.540
|
10.884
|
|
February
25, 2009
|
March
25, 2009
|
156,380,000.00
|
11.156
|
11.156
|
|
March
25, 2009
|
April
25, 2009
|
156,380,000.00
|
10.543
|
10.884
|
|
April
25, 2009
|
May
25, 2009
|
156,380,000.00
|
10.911
|
10.911
|
|
May
25, 2009
|
June
25, 2009
|
156,380,000.00
|
10.535
|
10.884
|
|
June
25, 2009
|
July
25, 2009
|
156,380,000.00
|
10.922
|
10.922
|
EXHIBIT
L
FORM
OF REPORT PURSUANT TO SECTION 13.01
Data
to be provided to Class CE Certificate Holder:
Loan
Number:
Original
Loan Amount:
Current
Loan Amount:
Original
Appraisal Value:
Original
LTV:
Current
Interest Rate:
First
Payment Date:
Last
Payment Date:
Current
P&I Payment Amount:
Origination
Date:
Loan
Term:
Product
Type (adjustable rate or fixed rate):
Property
Type:
Street
Address:
Zip
Code:
State:
Delinquency
Status:
Foreclosure
Flag:
Bankruptcy
Flag:
Payment
Plan Flag (forbearance):
MI
Certificate Number:
Foreclosure
Start Date (Referral Date):
Foreclosure
Actual Sale Date:
NOD
Date:
REO
List
Date:
REO
List
Price:
Occupancy
Status:
Eviction
Status:
REO
Net
Sales Proceeds:
REO
Sales
Price:
Current
Market Value:
Prepayment
Flag:
Prepayment
Expiration Date:
Prepayment
Charges Collected:
Prepayment
Premium Waived:
Prepayment
Calculation:
Senior
Lien Position:
Senior
Lien Holder:
Senior
Lien Balance:
Estimated
Senior Lien Foreclosure Sale Date:
Senior
Lien in Foreclosure - Flag:
SCHEDULE
1
MORTGAGE
LOAN SCHEDULE
(Previously
Filed, Available Upon Request)
SCHEDULE
2
SCHEDULE
OF PREPAYMENT CHARGES
(AVAILABLE
UPON REQUEST)
SCHEDULE
3
PERFECTION
REPRESENTATIONS, WARRANTIES AND COVENANTS
The
Depositor hereby represents, warrants, and covenants as follows on the Closing
Date and on each Distribution Date thereafter:
General
1. This
Agreement creates a valid and continuing security interest (as defined in the
applicable Uniform Commercial Code (“UCC”)) in the Mortgage Loans in favor of
the Trustee which security interest is prior to all other liens, and is
enforceable as such as against creditors of and purchasers from the
Depositor.
2. The
Mortgage Loans constitute “general intangibles” or “instruments” within the
meaning of the applicable UCC.
3. The
Custodial Account and all subaccounts thereof constitute either a deposit
account or a securities account.
4. To
the
extent that payments and collections received or made with respect to the
Mortgage Loans constitute securities entitlements, such payments and collections
have been and will have been credited to the Custodial Account. The securities
intermediary for the Custodial Account has agreed to treat all assets credited
to the Custodial Account as “financial assets” within the meaning of the
applicable UCC.
Creation
5. The
Depositor owns and has good and marketable title to the Mortgage Loans free
and
clear of any lien, claim or encumbrance of any Person, excepting only liens
for
taxes, assessments or similar governmental charges or levies incurred in the
ordinary course of business that are not yet due and payable or as to which
any
applicable grace period shall not have expired, or that are being contested
in
good faith by proper proceedings and for which adequate reserves have been
established, but only so long as foreclosure with respect to such a lien is
not
imminent and the use and value of the property to which the lien attaches is
not
impaired during the pendency of such proceeding.
6. The
Depositor has received all consents and approvals to the transfer of the
Mortgage Loans hereunder to the Trustee required by the terms of the Mortgage
Loans that constitute instruments.
7. To
the
extent the Custodial Account or subaccounts thereof constitute securities
entitlements, certificated securities or uncertificated securities, the
Depositor has received all consents and approvals required to transfer to the
Trustee its interest and rights in the Custodial Account hereunder.
Perfection
8. The
Depositor has caused or will have caused, within ten days after the effective
date of this Agreement, the filing of all appropriate financing statements
in
the proper filing office in the appropriate jurisdictions under applicable
law
in order to perfect the transfer of the Mortgage Loans from the Depositor to
the
Trustee and the security interest in the Mortgage Loans granted to the Trustee
hereunder.
9. With
respect to the Custodial Account and all subaccounts that constitute deposit
accounts, either:
(i) the
Depositor has delivered to the Trustee a fully-executed agreement pursuant
to
which the bank maintaining the deposit accounts has agreed to comply with all
instructions originated by the Trustee directing disposition of the funds in
the
Custodial Account without further consent by the Depositor; or
(ii) the
Depositor has taken all steps necessary to cause the Trustee to become the
account holder of the Custodial Account.
10. With
respect to the Custodial Account or subaccounts thereof that constitute
securities accounts or securities entitlements, the Depositor has caused or
will
have caused, within ten days after the effective date of this Agreement, the
filing of all appropriate financing statements in the proper filing office
in
the appropriate jurisdictions under applicable law in order to perfect the
security interest in the Custodial Account granted by the Depositor to the
Trustee.
Priority
11. Other
than the transfer of the Mortgage Loans to the Trustee pursuant to this
Agreement, the Depositor has not pledged, assigned, sold, granted a security
interest in, or otherwise conveyed any of the Mortgage Loans. The Depositor
has
not authorized the filing of, or is not aware of any financing statements
against the Depositor that include a description of collateral covering the
Mortgage Loans other than any financing statement relating to the security
interest granted to the Trustee hereunder or that has been
terminated.
12. The
Depositor is not aware of any judgment, ERISA or tax lien filings against the
Depositor.
13. The
Trustee has in its possession all original copies of the Mortgage Notes that
constitute or evidence the Mortgage Loans. To the Depositor’s knowledge, none of
the instruments that constitute or evidence the Mortgage Loans has any marks
or
notations indicating that they have been pledged, assigned or otherwise conveyed
to any Person other than the Trustee or its designee. All financing statements
filed or to be filed against the Depositor in favor of the Trustee in connection
herewith describing the Mortgage Loans contain a statement to the following
effect: “A purchase of or security interest in any collateral described in this
financing statement will violate the rights of the Trustee.”
14. Neither
the Custodial Account nor any subaccount thereof is in the name of any person
other than the Depositor or the Trustee or in the name of its nominee. The
Depositor has not consented for the securities intermediary of the Custodial
Account to comply with entitlement orders of any person other than the Trustee
or its designee.
15. Survival
of Perfection Representations.
Notwithstanding any other provision of this Agreement or any other transaction
document, the Perfection Representations contained in this Schedule shall be
continuing, and remain in full force and effect (notwithstanding any replacement
of the Servicer or termination of the Servicer’s rights to act as such) until
such time as all obligations under this Agreement have been finally and fully
paid and performed.
16. No
Waiver.
The
parties to this Agreement (i) shall not, without obtaining a confirmation of
the
then-current rating of the Certificates waive any of the Perfection
Representations, and (ii) shall provide the Rating Agencies with prompt written
notice of any breach of the Perfection Representations, and shall not, without
obtaining a confirmation of the then-current rating of the Certificates (as
determined after any adjustment or withdrawal of the ratings following notice
of
such breach) waive a breach of any of the Perfection
Representations.
17. Depositor
to Maintain Perfection and Priority.
The
Depositor covenants that, in order to evidence the interests of the Depositor
and the Trustee under this Agreement, the Depositor shall take such action,
or
execute and deliver such instruments (other than effecting a Filing (as defined
below), unless such Filing is effected in accordance with this paragraph) as
may
be necessary or advisable (including, without limitation, such actions as are
requested by the Trustee) to maintain and perfect, as a first priority interest,
the Trustee’s security interest in the Mortgage Loans. The Depositor shall, from
time to time and within the time limits established by law, prepare and present
to the Purchaser or its designee to authorize (based in reliance on the Opinion
of Counsel hereinafter provided for) the Depositor to file, all financing
statements, amendments, continuations, initial financing statements in lieu
of a
continuation statement, terminations, partial terminations, releases or partial
releases, or any other filings necessary or advisable to continue, maintain
and
perfect the Trustee’s security interest in the Mortgage Loans as a
first-priority interest (each a “Filing”). The Depositor shall present each such
Filing to the Trustee or its designee together with (x) an Opinion of Counsel
to
the effect that such Filing is (i) consistent with the grant of the security
interest to the Trustee pursuant to Section 11.09 of this Agreement, (ii)
satisfies all requirements and conditions to such Filing in this Agreement
and
(iii) satisfies the requirements for a Filing of such type under the Uniform
Commercial Code in the applicable jurisdiction (or if the Uniform Commercial
Code does not apply, the applicable statute governing the perfection of security
interests), and (y) a form of authorization for the Trustee’s signature. Upon
receipt of such Opinion of Counsel and form of authorization, the Trustee shall
promptly authorize in writing the Depositor to, and the Depositor shall, effect
such Filing under the UCC without the signature of the Depositor or the Trustee
where allowed by applicable law. Notwithstanding anything else in the
transaction documents to the contrary, the Depositor shall not have any
authority to effect a Filing without obtaining written authorization from the
Trustee or its designee.
SCHEDULE
4
STANDARD
FILE LAYOUT DATA ELEMENTS
|
Column
Name
|
DESCRIPTION
|
Decimal
|
Comment
|
Max
Size
|
|
LOAN_NBR
|
A
unique identifier assigned to each loan by the originator.
|
|
Text
up to 10 digits
|
10
|
|
SER_INVESTOR_NBR
|
A
value assigned by the Servicer to define a group of loans.
|
|
Text
up to 10 digits
|
20
|
|
SERVICER_LOAN_NBR
|
A
unique number assigned to a loan by the Servicer. This may be different
than the LOAN_NBR.
|
|
Text
up to 10 digits
|
10
|
|
BORR_NEXT
_PAY_DUE_DATE
|
The
date at the end of processing cycle that the Borrower's next payment
is
due to the Servicer, as reported by Servicer.
|
|
MM/DD/YYYY
|
10
|
|
NOTE_INT_RATE
|
The
loan interest rate as reported by the Servicer.
|
4
|
Max
length of 6
|
6
|
|
ACTL_END
_PRIN_BAL
|
The
Borrower's actual principal balance at the end of the processing
cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SCHED_END_PRIN_BAL
|
The
scheduled principal balance due to the investors at the end of a
processing cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
ACTL_BEG
_PRIN_BAL
|
The
Borrower's actual principal balance at the beginning of the processing
cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SCHED_BEG_PRIN_BAL
|
The
scheduled outstanding principal amount due at the beginning of the
cycle
date to be passed through to the investors.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SCHED_PAY_AMT
|
The
scheduled monthly principal and scheduled interest payment that a
Borrower
is expected to pay; P&I constant.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SCHED_PRIN_
AMT
|
The
scheduled principal amount as reported by the Servicer for the current
cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT
_AMT_1
|
The
first curtailment amount to be applied.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT
_AMT_2
|
The
second curtailment amount to be applied.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_CURT
_AMT_3
|
The
third curtailment amount to be applied.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
The
standard FNMA numeric code used to indicate the default/delinquent
status
of a particular loan.
|
|
Action
Code Key: 15=Bankruptcy, 00xXxxxxxxxxxx, 00xXXX, 00xXXX, 63= Substitution,
65=Repurchase;
|
2
|
|
|
PIF_AMT
|
The
loan “paid in full” amount as reported by the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
PIF_DATE
|
The
paid in full date as reported by the Servicer.
|
|
MM/DD/YYYY
|
10
|
|
SCHED_GROSS_INTEREST_AMT
|
The
amount of interest due on the outstanding scheduled principal balance
in
the current cycle.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
LOAN_FEE_AMT
|
The
monthly loan fee amount expressed in dollars and cents.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SERV_FEE_RATE
|
The
Servicer's fee rate for a loan as reported by the Servicer.
|
4
|
Max
length of 6
|
6
|
|
CR_LOSS_AMT
|
The
amount of loss that is classified as a credit.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
FRAUD_LOSS_AMT
|
The
amount of loss that is attributable to a fraud claim.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
BANKRUPTCY_LOSS_AMT
|
The
amount of loss due to bankruptcy.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
SPH_LOSS_AMT
|
The
amount of loss that is classified as a special hazard.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
PREPAY_PENALTY_
AMT
|
The
penalty amount received when a Borrower prepays on his loan as reported
by
the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
PREPAY_PENALTY_
WAIVED
|
The
prepayment penalty amount for the loan waived by the Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
|
MOD_DATE
|
The
effective payment date of the modification for the loan.
|
|
MM/DD/YYYY
|
10
|
|
MOD_TYPE
|
The
modification type.
|
|
Varchar
- value can be alpha or numeric
|
30
|
|
DELINQ_P&I_ADVANCE_AMT
|
The
current outstanding principal and interest advances made by the
Servicer.
|
2
|
No
commas(,) or dollar signs ($)
|
11
|
