STANWICH ASSET ACCEPTANCE COMPANY, L.L.C. Depositor NEW CENTURY MORTGAGE CORPORATION, Servicer and WELLS FARGO BANK N.A., Trustee POOLING AND SERVICING AGREEMENT Dated as of December 1, 2006 Carrington Mortgage Loan Trust, Series 2006-NC5 Asset-Backed...
STANWICH
ASSET ACCEPTANCE COMPANY, L.L.C.
Depositor
NEW
CENTURY MORTGAGE CORPORATION,
Servicer
and
XXXXX
FARGO BANK N.A.,
Trustee
Dated
as
of December 1, 2006
Xxxxxxxxxx
Mortgage Loan Trust, Series 2006-NC5
Asset-Backed
Pass-Through Certificates
Page
|
ARTICLE
I
|
DEFINITIONS
|
3
|
|
SECTION
1.01
|
Defined
Terms
|
3
|
|
SECTION
1.02
|
Allocation
of Certain Interest Shortfalls
|
49
|
|
ARTICLE
II
|
CONVEYANCE
OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES
|
50
|
|
SECTION
2.01
|
Conveyance
of the Mortgage Loans
|
50
|
|
SECTION
2.02
|
Acceptance
of REMIC I by Trustee
|
53
|
|
SECTION
2.03
|
Repurchase
or Substitution of Mortgage Loans by the Responsible Party and
the
Seller
|
54
|
|
SECTION
2.04
|
[Reserved]
|
57
|
|
SECTION
2.05
|
Representations,
Warranties and Covenants of the Servicer
|
57
|
|
SECTION
2.06
|
Issuance
of the REMIC I Regular Interests and the Class R-I
Interest
|
59
|
|
SECTION
2.07
|
Conveyance
of the REMIC I Regular Interests; Acceptance of REMIC II by the
Trustee
|
60
|
|
SECTION
2.08
|
Issuance
of Class R Certificates
|
60
|
|
ARTICLE
III
|
ADMINISTRATION
AND SERVICING OF THE MORTGAGE LOANS
|
60
|
|
SECTION
3.01
|
Servicer
to Act as Servicer
|
60
|
|
SECTION
3.02
|
Sub-Servicing
Agreements Between Servicer and Sub-Servicers
|
62
|
|
SECTION
3.03
|
Successor
Sub-Servicers
|
63
|
|
SECTION
3.04
|
Liability
of the Servicer
|
63
|
|
SECTION
3.05
|
No
Contractual Relationship Between Sub-Servicers, the Trustee or
the
Certificateholders
|
64
|
|
SECTION
3.06
|
Assumption
or Termination of Sub-Servicing Agreements by the Trustee
|
64
|
|
SECTION
3.07
|
Collection
of Certain Mortgage Loan Payments
|
65
|
|
SECTION
3.08
|
Sub-Servicing
Accounts
|
65
|
|
SECTION
3.09
|
Collection
of Taxes, Assessments and Similar Items; Servicing
Accounts
|
65
|
|
SECTION
3.10
|
Custodial
Account and Certificate Account
|
66
|
|
SECTION
3.11
|
Withdrawals
from the Custodial Account and Certificate Account
|
69
|
-i-
TABLE
OF CONTENTS
(continued)
Page
|
SECTION
3.12
|
Investment
of Funds in the Custodial Account and the Certificate
Account
|
70
|
|
SECTION
3.13
|
[Reserved]
|
72
|
|
SECTION
3.14
|
Maintenance
of Hazard Insurance and Errors and Omissions and Fidelity
Coverage
|
72
|
|
SECTION
3.15
|
Enforcement
of Due-On-Sale Clauses; Assumption Agreements
|
73
|
|
SECTION
3.16
|
Realization
Upon Defaulted Mortgage Loans
|
74
|
|
SECTION
3.17
|
Trustee
and Custodian to Cooperate; Release of Mortgage Files
|
76
|
|
SECTION
3.18
|
Servicing
Compensation
|
77
|
|
SECTION
3.19
|
Reports
to the Trustee and Others; Custodial Account Statements
|
78
|
|
SECTION
3.20
|
[Reserved]
|
78
|
|
SECTION
3.21
|
[Reserved]
|
78
|
|
SECTION
3.22
|
Access
to Certain Documentation
|
78
|
|
SECTION
3.23
|
Title,
Management and Disposition of REO Property
|
78
|
|
SECTION
3.24
|
Obligations
of the Servicer in Respect of Prepayment Interest
Shortfalls
|
82
|
|
SECTION
3.25
|
Obligations
of the Servicer in Respect of Mortgage Rates and Monthly
Payments
|
82
|
|
SECTION
3.26
|
Advance
Facility
|
82
|
|
ARTICLE
IV
|
PAYMENTS
TO CERTIFICATEHOLDERS
|
83
|
|
SECTION
4.01
|
Distributions
|
83
|
|
SECTION
4.02
|
Statements
to Certificateholders
|
90
|
|
SECTION
4.03
|
Remittance
Reports; Advances
|
94
|
|
SECTION
4.04
|
Allocation
of Realized Losses
|
95
|
|
SECTION
4.05
|
Compliance
with Withholding Requirements
|
97
|
|
SECTION
4.06
|
Exchange
Commission; Additional Information
|
97
|
|
SECTION
4.07
|
The
Swap Agreement
|
102
|
|
SECTION
4.08
|
Tax
Treatment of Swap Payments and Swap Termination Payments
|
104
|
|
ARTICLE
V
|
THE
CERTIFICATES
|
105
|
-ii-
TABLE
OF CONTENTS
(continued)
Page
|
SECTION
5.01
|
The
Certificates
|
105
|
|
SECTION
5.02
|
Registration
of Transfer and Exchange of Certificates
|
107
|
|
SECTION
5.03
|
Mutilated,
Destroyed, Lost or Stolen Certificates
|
113
|
|
SECTION
5.04
|
Persons
Deemed Owners
|
113
|
|
SECTION
5.05
|
Certain
Available Information
|
113
|
|
ARTICLE
VI
|
THE
DEPOSITOR AND THE SERVICER
|
114
|
|
SECTION
6.01
|
Respective
Liabilities of the Depositor and the Servicer
|
114
|
|
SECTION
6.02
|
Merger
or Consolidation of the Depositor or the Servicer
|
114
|
|
SECTION
6.03
|
Limitation
on Liability of the Depositor, the Servicer and Others
|
115
|
|
SECTION
6.04
|
Limitation
on Resignation of the Servicer
|
116
|
|
SECTION
6.05
|
Rights
of the Depositor in Respect of the Servicer
|
116
|
|
ARTICLE
VII
|
DEFAULT
|
117
|
|
SECTION
7.01
|
Servicer
Events of Default
|
117
|
|
SECTION
7.02
|
Trustee
to Act; Appointment of Successor
|
119
|
|
SECTION
7.03
|
Notification
to Certificateholders
|
120
|
|
SECTION
7.04
|
Waiver
of Servicer Events of Default
|
120
|
|
ARTICLE
VIII
|
CONCERNING
THE TRUSTEE
|
120
|
|
SECTION
8.01
|
Duties
of Trustee
|
120
|
|
SECTION
8.02
|
Certain
Matters Affecting the Trustee
|
122
|
|
SECTION
8.03
|
Trustee
Not Liable for Certificates or Mortgage Loans
|
123
|
|
SECTION
8.04
|
Trustee
May Own Certificates
|
123
|
|
SECTION
8.05
|
Trustee’s
Fees and Expenses
|
124
|
|
SECTION
8.06
|
Eligibility
Requirements for Trustee
|
124
|
|
SECTION
8.07
|
Resignation
and Removal of the Trustee
|
125
|
|
SECTION
8.08
|
Successor
Trustee
|
126
|
|
SECTION
8.09
|
Merger
or Consolidation of Trustee
|
126
|
|
SECTION
8.10
|
Appointment
of Co-Trustee or Separate Trustee
|
126
|
|
SECTION
8.11
|
Trustee
to Execute Custodial Agreement and Swap Agreement
|
127
|
|
SECTION
8.12
|
Appointment
of Office or Agency
|
128
|
-iii-
TABLE
OF CONTENTS
(continued)
Page
|
SECTION
8.13
|
Representations
and Warranties of the Trustee
|
128
|
|
SECTION
8.14
|
Appointment
of the Custodian
|
128
|
|
ARTICLE
IX
|
TERMINATION
|
129
|
|
SECTION
9.01
|
Termination
Upon Repurchase or Liquidation of All Mortgage Loans
|
129
|
|
SECTION
9.02
|
Additional
Termination Requirements
|
131
|
|
ARTICLE
X
|
REMIC
PROVISIONS
|
131
|
|
SECTION
10.01
|
REMIC
Administration
|
131
|
|
SECTION
10.02
|
Prohibited
Transactions and Activities
|
134
|
|
SECTION
10.03
|
Servicer
and Trustee Indemnification
|
134
|
|
ARTICLE
XI
|
TRUSTEE
COMPLIANCE WITH REGULATION AB
|
135
|
|
SECTION
11.01
|
Intent
of the Parties; Reasonableness
|
135
|
|
SECTION
11.02
|
Additional
Representations and Warranties of the Trustee
|
135
|
|
SECTION
11.03
|
Information
to Be Provided by the Trustee
|
136
|
|
SECTION
11.04
|
Report
on Assessment of Compliance and Attestation
|
136
|
|
SECTION
11.05
|
Indemnification;
Remedies
|
137
|
|
ARTICLE
XII
|
SERVICER
COMPLIANCE WITH REGULATION AB
|
138
|
|
SECTION
12.01
|
[Reserved]
|
138
|
|
SECTION
12.02
|
[Reserved]
|
138
|
|
SECTION
12.03
|
Information
to Be Provided by the Servicer
|
138
|
|
SECTION
12.04
|
Servicer
Compliance Statement
|
139
|
|
SECTION
12.05
|
Report
on Assessment of Compliance and Attestation
|
139
|
|
SECTION
12.06
|
Use
of Sub-Servicers and Subcontractors
|
140
|
|
SECTION
12.07
|
Indemnification;
Remedies
|
141
|
|
ARTICLE
XIII
|
MISCELLANEOUS
PROVISIONS
|
143
|
|
SECTION
13.01
|
Amendment
|
143
|
|
SECTION
13.02
|
Recordation
of Agreement; Counterparts
|
145
|
|
SECTION
13.03
|
Limitation
on Rights of Certificateholders
|
145
|
|
SECTION
13.04
|
Governing
Law
|
146
|
|
SECTION
13.05
|
Notices
|
146
|
-iv-
TABLE
OF CONTENTS
(continued)
Page
|
SECTION
13.06
|
Severability
of Provisions
|
146
|
|
SECTION
13.07
|
Notice
to Rating Agencies
|
146
|
|
SECTION
13.08
|
Article
and Section References
|
147
|
|
SECTION
13.09
|
Grant
of Security Interest
|
147
|
|
SECTION
13.10
|
Intention
of Parties
|
148
|
|
SECTION
13.11
|
Assignment
|
149
|
|
SECTION
13.12
|
Inspection
and Audit Rights
|
149
|
|
SECTION
13.13
|
Certificates
Nonassessable and Fully Paid
|
149
|
|
SECTION
13.14
|
Third-Party
Beneficiaries
|
149
|
|
SECTION
13.15
|
Perfection
Representations
|
149
|
|
SECTION
13.16
|
Notice
to Holder of Class CE Certificate
|
149
|
|
ARTICLE
XIV
|
RIGHTS
OF THE CLASS CE CERTIFICATEHOLDER
|
149
|
|
SECTION
14.01
|
Reports
and Notices
|
149
|
|
SECTION
14.02
|
Class
CE Certificateholder’s Directions With Respect to Defaulted Mortgage
Loans
|
151
|
-v-
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 A-5 Certificates
|
|
Exhibit
A-6
|
Form
of Class M-1 Certificates
|
|
Exhibit
A-7
|
Form
of Class M-2 Certificates
|
|
Exhibit
A-8
|
Form
of Class M-3 Certificates
|
|
Exhibit
A-9
|
Form
of Class M-4 Certificates
|
|
Exhibit
A-10
|
Form
of Class M-5 Certificates
|
|
Exhibit
A-11
|
Form
of Class M-6 Certificates
|
|
Exhibit
A-12
|
Form
of Class M-7 Certificates
|
|
Exhibit
A-13
|
Form
of Class M-8 Certificates
|
|
Exhibit
A-14
|
Form
of Class M-9 Certificates
|
|
Exhibit
A-15
|
Form
of Class M-10 Certificates
|
|
Exhibit
A-16
|
Form
of Class CE Certificate
|
|
Exhibit
A-17
|
Form
of Class P Certificate
|
|
Exhibit
A-18
|
Form
of Class R-I Certificate
|
|
Exhibit
A-19
|
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 Servicer’s 10-K Certification
|
|
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-1
|
Form
of Swap Agreement
|
|
Exhibit
K-2
|
Schedule
of Swap Agreement Notional Balances
|
|
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
|
-vi-
This
Pooling and Servicing Agreement, is dated and effective as of December 1,
2006,
among STANWICH ASSET ACCEPTANCE COMPANY, L.L.C. as Depositor, NEW CENTURY
MORTGAGE CORPORATION as Servicer and XXXXX FARGO BANK, N.A. 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 Swap Account and the
Swap
Agreement) 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)
|
$1,152,407,759.28
|
January
25, 2037
|
|||
|
I-LTA1
|
Variable
(2)
|
$2,160,970.00
|
January
25, 2037
|
|||
|
I-LTA2
|
Variable
(2)
|
$1,258,190.00
|
January
25, 2037
|
|||
|
I-LTA3
|
Variable
(2)
|
$1,427,840.00
|
January
25, 2037
|
|||
|
I-LTA4
|
Variable
(2)
|
$363,720.00
|
January
25, 2037
|
|||
|
I-LTA5
|
Variable
(2)
|
$3,208,910.00
|
January
25, 2037
|
|||
|
I-LTM1
|
Variable
(2)
|
$676,160.00
|
January
25, 2037
|
|||
|
I-LTM2
|
Variable
(2)
|
$646,760.00
|
January
25, 2037
|
|||
|
I-LTM3
|
Variable
(2)
|
$217,550.00
|
January
25, 2037
|
|||
|
I-LTM4
|
Variable
(2)
|
$317,500.00
|
January
25, 2037
|
|||
|
I-LTM5
|
Variable
(2)
|
$241,060.00
|
January
25, 2037
|
|||
|
I-LTM6
|
Variable
(2)
|
$164,630.00
|
January
25, 2037
|
|||
|
I-LTM7
|
Variable
(2)
|
$205,790.00
|
January
25, 2037
|
|||
|
I-LTM8
|
Variable
(2)
|
$129,350.00
|
January
25, 2037
|
|||
|
I-LTM9
|
Variable
(2)
|
$176,390.00
|
January
25, 2037
|
|||
|
I-LTM10
|
Variable
(2)
|
$205,790.00
|
January
25, 2037
|
|||
|
I-LTZZ
|
Variable
(2)
|
$12,117,916.72
|
January
25, 0000
|
|||
|
X-XXX
|
Variable
(2)
|
$100.00
|
January
25, 2037
|
_______________
|
(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)
|
$216,097,000
|
February
25, 2031
|
|||
|
Class
A-2(2)
|
Variable(2)
|
$125,819,000
|
March
25, 2036
|
|||
|
Class
A-3(2)
|
Variable(2)
|
$142,784,000
|
October
25, 2036
|
|||
|
Class
A-4(2)
|
Variable(2
|
$36,372,000
|
November
25, 2036
|
|||
|
Class
A-5(2)
|
Variable(2)
|
$320,891,000
|
March
25, 2036
|
|||
|
Class
M-1(2)
|
Variable(2)
|
$67,616,000
|
January
25, 2037
|
|||
|
Class
M-2(2)
|
Variable(2)
|
$64,676,000
|
January
25, 2037
|
|||
|
Class
M-3(2)
|
Variable(2)
|
$21,755,000
|
January
25, 2037
|
|||
|
Class
M-4(2)
|
Variable(2)
|
$31,750,000
|
January
25, 2037
|
|||
|
Class
M-5(2)
|
Variable(2)
|
$24,106,000
|
January
25, 2037
|
|||
|
Class
M-6(2)
|
Variable(2)
|
$16,463,000
|
January
25, 2037
|
|||
|
Class
M-7(2)
|
Variable(2)
|
$20,579,000
|
January
25, 2037
|
|||
|
Class
M-8(2)
|
Variable(2)
|
$12,935,000
|
January
25, 2037
|
|||
|
Class
M-9(2)
|
Variable(2)
|
$17,639,000
|
January
25, 2037
|
|||
|
Class
M-10(2)
|
Variable(2)
|
$20,579,000
|
January
25, 2037
|
|||
|
Class
CE(3)
|
Variable(4)
|
$35,865,286
|
N/A
|
|||
|
Class
P
|
N/A(5)
|
$100.00
|
N/A
|
_______________
|
(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. The
Class A and Class M Certificates represent ownership of REMIC II
Regular Interests, together with certain rights to payments to
be made
from amounts received under the Swap Agreement which payments are
treated
for federal income tax purposes as being made outside of REMIC
II by the
holder of the Class CE Certificates, as the owner of the Swap
Agreement.
|
|
(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. The rights
of
the Holder of the Class CE Certificates to payments from the Swap
Agreement shall be outside and apart from its rights under the
REMIC II
Regular Interests CE-IO and CE-PO.
|
|
(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 $1,175,926,386.
2
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, the following words and phrases, unless the
context otherwise requires, shall have the meanings specified in this Article.
Unless otherwise specified, all calculations described herein shall be made
on
the basis of a 360-day year consisting of twelve 30-day months.
“Accepted
Servicing Practices”:
The
servicing standards set forth in Section
3.01.
“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
hereof
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
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
hereof.
“Additional
Form 10-D Disclosure”
has
the
meaning set forth in Section
4.06(a).
“Additional
Form 10-K Disclosure”
has
the
meaning set forth in Section
4.06(b).
“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.
3
“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.
“Advance
Facility”:
As
defined in Section
3.26(a).
“Advance
Facility Trustee”:
As
defined in Section
3.26(b).
“Advancing
Person”:
As
defined in Section
3.26(a)
hereof.
“Affected
Party”:
As
defined in the Swap 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.
“Agreement”:
This
Pooling and Servicing Agreement and all amendments hereof and supplements
hereto.
“Allocated
Realized Loss Amount”:
With
respect to any Distribution Date and any Class of Class A Certificates or
Mezzanine Certificates, an amount equal to (x) 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 previous Distribution Dates minus
(y) the
amount of the increase in the related Certificate Principal Balance due to
the
receipt of Subsequent Recoveries as provided in Section
4.01.
“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
hereof
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,
(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,
(d) the
aggregate of any Advances made by the Servicer for such Distribution Date
pursuant to Section
4.03
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,
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
or
otherwise payable in respect of Extraordinary Trust Fund Expenses, (v) the
Trustee Fee payable from the Certificate Account pursuant to Section
8.05,
(vi)
amounts deposited in the Custodial Account or the Certificate Account in
error,
(vii) the amount of any Prepayment Charges collected by the Servicer in
connection with the Principal Prepayment of any of the Mortgage Loans or
any
Servicer Prepayment Charge Payment Amount and (viii) any Net Swap Payment
owed
to the Swap Counterparty and Swap Termination Payments owed to the Swap
Counterparty not due to a Swap Counterparty Trigger Event for such Distribution
Date.
4
“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.
“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 California, 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.
“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.
5
“Certificate”:
Any
one of the Xxxxxxxxxx Mortgage Loan Trust, Series 2006-NC5 Asset-Backed
Pass-Through Certificates, Class A-1, Class A-2, Class A-3, 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 this Agreement.
“Certificate
Account”:
The
trust account or accounts created and maintained by the Trustee pursuant
to
Section
3.10(b),
which
shall be entitled “Xxxxx Fargo Bank, N.A., as Trustee, in trust for the
registered holders of Xxxxxxxxxx Mortgage Loan Trust, Series 2006-NC5
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 hereof and, solely
for the
purpose of giving any consent pursuant to this 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.
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,
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.
6
“Certificate
Register”:
The
register maintained pursuant to Section
5.02.
“Class”:
Collectively, all of the Certificates bearing the same class
designation.
“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 from the Swap Account 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 from the Swap Account 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 from the Swap Account 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 from the Swap Account to
the
extent described herein.
“Class
A-5 Certificates”:
Any
one of the Class A-5 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 from the Swap Account to
the
extent described herein.
“Class
A Certificates”:
Collectively, the Class A-1 Certificates, the Class A-2 Certificates, the
Class
A-3 Certificates, the Class A-4 Certificates and the Class A-5
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.
7
“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-16
and
evidencing two Regular Interests in REMIC II for purposes of the REMIC
Provisions together with certain rights to payments under the Swap
Agreement.
“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-6
and
evidencing (i) a Regular Interest in REMIC II for purposes of the REMIC
Provisions and (ii) the right to receive payments from the Swap Account 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-7
and
evidencing (i) a Regular Interest in REMIC II for purposes of the REMIC
Provisions and (ii) the right to receive payments from the Swap Account 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-8
and
evidencing (i) a Regular Interest in REMIC II for purposes of the REMIC
Provisions and
(ii)
the right to receive payments
from the
Swap Account to the extent described herein.
8
“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-9
and
evidencing (i) a Regular Interest in REMIC II for purposes of the REMIC
Provisions and (ii) the right to receive payments from the Swap Account 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-10
and
evidencing (i) a Regular Interest in REMIC II for purposes of the REMIC
Provisions and (ii) the right to receive payments from the Swap Account 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.
9
“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-11
and
evidencing (i) a Regular Interest in REMIC II for purposes of the REMIC
Provisions and (ii) the right to receive payments from the Swap Account 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-12
and
evidencing (i) a Regular Interest in REMIC II for purposes of the REMIC
Provisions and (ii) the right to receive payments from the Swap Account to
the
extent described herein.
10
“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-13
and
evidencing (i) a Regular Interest in REMIC II for purposes of the REMIC
Provisions and (ii) the right to receive payments from the Swap Account 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.
11
“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-14
and
evidencing (i) a Regular Interest in REMIC II for purposes of the REMIC
Provisions and (ii) the right to receive payments from the Swap Account 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-15
and
evidencing (i) a Regular Interest in REMIC II for purposes of the REMIC
Provisions and (ii) the right to receive payments from the Swap Account 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.
12
“Class
M Principal Distribution Amount”:
The
Class M-1 Principal Distribution Amount, the Class M-2 Principal Distribution
Amount, the Class M-3 Principal Distribution Amount, the Class M-4 Principal
Distribution Amount, the Class M-5 Principal Distribution Amount, the Class
M-6
Principal Distribution Amount, the Class M-7 Principal Distribution Amount,
the
Class M-8 Principal Distribution Amount, the Class M-9 Principal Distribution
Amount or the Class M-10 Principal Distribution Amount, as
applicable.
“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-17
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-18
and
Exhibit A-19
evidencing the ownership of the Class R-I Interest and the Class R-II Interest,
respectively.
“Class
R-I Interest”:
The
uncertificated Residual Interest in REMIC I.
“Class
R-II Interest”:
The
uncertificated Residual Interest in REMIC II.
“Closing
Date”:
December 19, 2006.
“Code”:
The
Internal Revenue Code of 1986, as amended.
“Commission”:
The
Securities and Exchange Commission.
“Controlling
Person”
means,
with respect to any Person, any other Person who “controls” such Person within
the meaning of the Securities Act.
13
“Corporate
Trust Office”:
The
principal corporate trust office of the Trustee at which at any particular
time
its corporate trust business in connection with this Agreement shall be
administered, which office at the date of the execution of this 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-NC5, and (ii) for all other purposes,
0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Client Manager
-
Xxxxxxxxxx 2006-NC5.
“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
X-0
|
|
X-XXX0
|
Xxxxx
X-0
|
|
X-XXX0
|
Class
X-0
|
|
X-XXX0
|
Xxxxx
X-0
|
|
X-XXX0
|
Class
A-5
|
|
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 and for any Class of Certificates, the percentage
equivalent of a fraction, the numerator of which is the sum of the aggregate
Certificate Principal Balance of the Classes of Certificates with a lower
distribution priority than such Class (including 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 and Class CE Certificates have been reduced to
zero.
“Custodial
Agreement”:
The
custodial agreement dated as of the Closing Date, among the Servicer, the
Trustee and the Custodian providing for the safekeeping of the Mortgage Files
on
behalf of the Trustee in accordance with this Agreement.
14
“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),
which
shall be entitled “New Century Mortgage Corporation, as Servicer for Xxxxx Fargo
Bank, N.A., as Trustee, in trust for the registered holders of Xxxxxxxxxx
Mortgage Loan Trust, Series 2006-NC5, Asset-Backed Pass-Through Certificates.”
The Custodial Account must be an Eligible Account.
“Custodian”:
A
Custodian, which shall initially be Deutsche Bank National Trust Company
pursuant to the Custodial Agreement.
“Custodian
Fee”:
The
amount payable to the Custodian by the Trustee as compensation for all services
rendered by it under the Custodial Agreement, as agreed upon by the Trustee
and
the Custodian.
“Cut-off
Date”:
With
respect to each Original Mortgage Loan, December 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.
“Defaulting
Party”:
As
defined in the Swap Agreement.
“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).
“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 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)
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.
15
“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.
16
“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 January 2007.
“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.
“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.
“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.
“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 then 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.
17
“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)
and any
amounts payable from the Certificate Account in respect of taxes pursuant
to
Section
10.01(g)(iii)
and any
costs of the Trustee for the recording of the Assignments pursuant to
Section
2.01
(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.
“Final
Recovery Determination”:
With
respect to any defaulted Mortgage Loan or any REO Property (other than a
Mortgage Loan or REO Property purchased by the Responsible Party, the Depositor
or the Servicer pursuant to or as contemplated by Section
2.03,
Section 3.16(c)
or
Section
9.01),
a
determination made by the Servicer that all Insurance Proceeds, Liquidation
Proceeds and other payments or recoveries which the Servicer, in its reasonable
good faith judgment, expects to be finally recoverable in respect thereof
have
been so recovered. 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
Swap Payment”:
With
respect to the Business Day prior to any Distribution Date on or prior to
the
Distribution Date in January 2011, an amount equal to the product of (x)
a fixed
rate equal to 5.100% per annum, (y) the Swap Agreement Notional Balance for
that
Distribution Date and (z)(i) with respect to the Business Day prior to the
initial Distribution Date, a fraction, the numerator of which is the number
of
days from and including the Closing Date to and including the day preceding
the
initial Distribution Date and the denominator of which is 360 and (ii) with
respect to the Business Day prior to each Distribution Date thereafter, a
fraction, the numerator of which is 30 and the denominator of which is
360.
“Floating
Swap Payment”:
With
respect to the Business Day prior to any Distribution Date on or prior to
the
Distribution Date in January 2011, an amount equal to the product of (x)
Swap
LIBOR (y) the Swap Agreement Notional Balance for that Distribution Date
and (z)
a fraction, the numerator of which is equal to the actual number of days
in the
related calculation period as provided in the Swap Agreement and the denominator
of which is 360.
“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.
18
“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,
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.
19
“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 previous Distribution Dates 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-LTA5,
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, the excess, if any, of (i) that portion of the Available
Distribution Amount (without giving effect to any Net Swap Payment owed to
the
Swap Counterparty or any Swap Termination Payment owed to the Swap Counterparty
not due to a Swap Counterparty Trigger Event) for that Distribution Date
that
represents interest received or advanced on the Mortgage Loans over
(ii) any Net Swap Payment owed to the Swap Counterparty or Swap Termination
Payment not due to a Swap Counterparty Trigger Event owed to the Swap
Counterparty.
“Investment
Account”:
As
defined in Section
3.12.
20
“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.
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.
“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.
“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:
21
|
Class
|
REMIC
I Regular Interest
|
Margin
|
|||
|
(1)
(%)
|
(2)
(%)
|
||||
|
X-0
|
X-XXX0
|
0.050%
|
0.100%
|
||
|
X-0
|
X-XXX0
|
0.110%
|
0.220%
|
||
|
X-0
|
X-XXX0
|
0.150%
|
0.300%
|
||
|
X-0
|
X-XXX0
|
0.220%
|
0.440%
|
||
|
X-0
|
X-XXX0
|
0.060%
|
0.120%
|
||
|
M-1
|
I-LTM1
|
0.270%
|
0.405%
|
||
|
M-2
|
I-LTM2
|
0.280%
|
0.420%
|
||
|
M-3
|
I-LTM3
|
0.310%
|
0.465%
|
||
|
M-4
|
I-LTM4
|
0.350%
|
0.525%
|
||
|
M-5
|
I-LTM5
|
0.370%
|
0.555%
|
||
|
M-6
|
I-LTM6
|
0.420%
|
0.630%
|
||
|
M-7
|
I-LTM7
|
0.700%
|
1.050%
|
||
|
M-8
|
I-LTM8
|
1.150%
|
1.725%
|
||
|
M-9
|
I-LTM9
|
2.100%
|
3.150%
|
||
|
M-10
|
I-LTM10
|
2.250%
|
4.500%
|
||
__________
|
(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-LTA5, 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.
22
“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.
“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.
“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.
“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
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
pertaining to a particular Mortgage Loan and any additional documents required
to be added to the Mortgage File pursuant to this Agreement.
“Mortgage
Loan”:
Each
mortgage loan transferred and assigned to the Trustee and delivered to the
Custodian on behalf of the Trustee pursuant to Section
2.01
or
Section
2.03(b)
of this
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, the Responsible Party 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
hereto 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
state
and zip code of the Mortgaged Property;
23
(iii) a
code
indicating whether the Mortgaged Property is owner-occupied;
(iv) the
type
of Residential Dwelling constituting the Mortgaged Property;
(v) the
original months to maturity;
(vi) the
stated remaining months to maturity from the Cut-off Date based on the original
amortization schedule;
(vii) the
Loan-to-Value Ratio at origination;
(viii) the
Mortgage Rate in effect immediately following the Cut-off Date;
(ix) (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;
(x) the
stated maturity date;
(xi) the
amount of the Monthly Payment at origination;
(xii) the
amount of the Monthly Payment due on the first Due Date after the Cut-off
Date;
(xiii) the
last
Due Date on which a Monthly Payment was actually applied to the unpaid Stated
Principal Balance;
(xiv) the
original principal amount of the Mortgage Loan;
(xv) the
Stated Principal Balance of the Mortgage Loan as of the close of business
on the
Cut-off Date;
(xvi) with
respect to each Adjustable-Rate Mortgage Loan, the Adjustment Dates, the
Gross
Margin, the Maximum Mortgage Rate, the Minimum Mortgage Rate, the Periodic
Rate
Cap, the maximum first Adjustment Date Mortgage Rate adjustment, the first
Adjustment Date immediately following the origination date and the rounding
code
(i.e., nearest 0.125%, next highest 0.125%);
(xvii) a
code
indicating the purpose of the Mortgage Loan (i.e., purchase financing, Rate/Term
Refinancing, Cash-Out Refinancing);
(xviii) the
Mortgage Rate at origination;
(xix) a
code
indicating the documentation program (i.e., Full Documentation, Limited
Documentation, Stated Income Documentation);
(xx) the
risk
grade;
24
(xxi) the
Value
of the Mortgaged Property;
(xxii) the
sale
price of the Mortgaged Property, if applicable;
(xxiii) the
actual unpaid principal balance of the Mortgage Loan as of the Cut-off
Date;
(xxiv) the
type
and term of the related Prepayment Charge;
(xxv) the
program code; and
(xxvi) the
total
amount of points and fees charged such Mortgage Loan.
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 and
(4) weighted
average maturity of the Mortgage Loans.
The
Mortgage Loan Schedule shall be amended from time to time by the Depositor
in
accordance with the provisions of this Agreement. With respect to any Qualified
Substitute Mortgage Loan, the Cut-off Date shall refer to the related Cut-off
Date for such Mortgage Loan, determined in accordance with the definition
of
Cut-off Date herein.
“Mortgage
Note”:
The
original executed note or other evidence of the indebtedness of a Mortgagor
under a Mortgage Loan.
“Mortgage
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.
25
“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
Swap Payment”:
With
respect to the Business Day prior to each Distribution Date, the net payment
required to be made pursuant to the terms of the Swap Agreement by either
the
Swap Counterparty or the Trustee, on behalf of the Trust, which net payment
shall not take into account any Swap Termination Payment.
“Net
WAC Pass-Through Rate”:
With
respect to the Class A Certificates and the Mezzanine Certificates and any
Distribution Date, a per annum rate (which will not be less than zero) equal
to
the excess, if any, of (a) the product of (i) a per annum rate equal to the
weighted average of the Expense Adjusted Mortgage Rates on the then outstanding
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
and
(ii) a fraction expressed as a percentage, the numerator of which is 30 and
the
denominator of which is the actual number of days in the related Interest
Accrual Period, over (b) the product of (i) a fraction expressed as a percentage
the numerator of which is the amount of any Net Swap Payments owed to the
Swap
Counterparty or Swap Termination Payment owed to the Swap Counterparty not
due
to a Swap Counterparty Trigger Event, and the denominator of which is equal
to
the Stated Principal Balance of the outstanding Mortgage Loans as of the
first
day of the related Due Period and (ii) a fraction expressed as a
percentage, the numerator of which is 360 and the denominator of which is
the
actual number of days in the related Interest Accrual Period. For federal
income
tax purposes, however, the foregoing shall be expressed as a per annum rate
equal to the weighted average of the REMIC I Remittance Rates on the REMIC
I
Regular Interests, weighted on the basis of the Uncertificated Balance of
each
such REMIC I Regular Interests.
26
“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 (not to exceed 14.50% per annum) over (ii) the amount of interest
that accrued on such Class of Certificates at the Net WAC Pass-Through Rate
for
such Distribution Date and (B) the undistributed portion of any related Net
WAC
Rate Carryover Amount from prior Distribution Dates, together with interest
accrued on such undistributed portion for the most recently ended Interest
Accrual Period at the Formula Rate (not to exceed 14.50% per annum) applicable
for such Class of Certificates for such Interest Accrual Period.
“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-LTA5, 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.
27
“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.
“Originator”:
New
Century Mortgage Corporation, a California corporation, or its successor
in
interest, or Home123 Corporation, a California Corporation, or its successor
in
interest, as applicable.
“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 aggregate Certificate Principal
Balance of the Class A Certificates, the Mezzanine Certificates and the Class
P
Certificates, after giving effect to distributions to be made on such
Distribution Date.
“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).
28
“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 sum of (i) the Net Monthly Excess
Cash Flow for such Distribution Date and (ii) payments made by the Swap
Counterparty and available for distribution pursuant to Section 4.07(a)(G).
“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 3.05%
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) 6.10% 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, the Mezzanine Certificates and the 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 least of (x) the related Formula Rate for such
Distribution Date, (y) the Net WAC Pass-Through Rate for such Distribution
Date
and (z) 14.50% per annum. 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,
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.
29
“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
hereto.
“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);
30
(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 Xxxxx’x; 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.
“Posted
Collateral Account”:
The
separate account created and maintained by the Trustee pursuant to Section
4.07(e).
“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).
31
“Prepayment
Charge Schedule”:
As of
any date, the list of Prepayment Charges included in the Trust Fund on such
date, attached hereto 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 Principal Prepayments in full on the Mortgage Loans and any
Distribution Date, any interest shortfall resulting from Principal Prepayments
occurring between the first day of the related Prepayment Period and the
last
day of the prior calendar month. The obligations of the Servicer in respect
of
any Prepayment Interest Shortfall are set forth in Section
3.24.
“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, actually received on or prior to the related Determination
Date or Advanced on or prior to the related Distribution 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
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
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
in
respect of a preceding Distribution Date; and
32
(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;
and
(vi) any
Swap
Payment Shortfall 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).
“Prospectus
Supplement”:
The
Prospectus Supplement, dated December 14, 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,
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),
(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,
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,
(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),
and (v)
in the case of a Mortgage Loan required to be purchased pursuant to Section
2.03,
expenses reasonably incurred or to be incurred by the Servicer or the Trustee
in
respect of the breach or defect giving rise to the purchase obligation 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.
33
“Qualified
Correspondent”:
Any
Person from which the Servicer purchased Mortgage Loans, provided that the
following conditions are satisfied: (i) such Mortgage Loans were originated
pursuant to an agreement between the Servicer and such Person that contemplated
that such Person would underwrite mortgage loans from time to time, for sale
to
the Servicer, in accordance with underwriting guidelines designated by the
Servicer (“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 the Servicer
within 180 days after origination; (iii) either (x) the Designated Guidelines
were, at the time such Mortgage Loans were originated, used by the Servicer
in
origination of mortgage loans of the same type as the Mortgage Loans for
the
Servicer’s own account or (y) the Designated Guidelines were, at the time such
Mortgage Loans were underwritten, designated by the Servicer on a consistent
basis for use by lenders in originating mortgage loans to be purchased by
the
Servicer; and (iv) the Servicer employed, at the time such Mortgage Loans
were
acquired by the Servicer, 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 the
Servicer.
“Qualified
Substitute Mortgage Loan”:
A
mortgage loan substituted for a Deleted Mortgage Loan pursuant to the terms
of
this Agreement which must, on the date of such substitution, (i) have an
outstanding 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.
34
“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),
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);
plus
(v) Swap
Payment Shortfall.
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),
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
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.
35
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.
With
respect to any allocation of a Realized Loss to a Certificate related to
a Swap
Payment Shortfall, such Realized Loss will be made by reducing the Certificate
Principal Balance of that Certificate by the amount so allocated as of the
Distribution Date in the month in which the Swap Payment Shortfall was
incurred.
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.
36
“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 (exclusive of the Swap Account and
the
Swap Agreement, each of which is not an asset of any REMIC), 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 this
Agreement, together with the Mortgage Files relating thereto, and together
with
all collections thereon and proceeds thereof; (ii) any REO Property, together
with all collections thereon and proceeds thereof; (iii) the Trustee’s rights
with respect to the Mortgage Loans under all insurance policies required
to be
maintained pursuant to this Agreement and any proceeds thereof; (iv) the
Depositor’s rights under the Mortgage Loan Purchase Agreement (including any
security interest created thereby); and (v) the 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 and all Prepayment Charges payable in connection with Principal
Prepayments on the Mortgage Loans made before the Cut-off Date.
37
“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-LTA5, 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-LTA5, 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-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.
“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 hereof, 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-LTA5, 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.
38
“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, Mezzanine 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 hereof, in an aggregate amount equal to interest
distributable with respect to the Class CE Certificates pursuant to the terms
and conditions hereof.
“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 hereof, in an aggregate amount equal to principal
distributable with respect to the Class CE Certificates pursuant to the terms
and conditions hereof.
“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
containing the data elements specified on Schedule 4, hereto, with such
additions, deletions and modifications as agreed to by the Trustee and the
Servicer.
39
“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.
“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 Expense
Adjusted 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
that is
allocable to such REO Property) or otherwise, net of any portion of such
amounts
(i) payable pursuant to Section
3.23(c)
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)
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.
“Request
for Release”:
A
release signed by a Servicing Officer, in the form of Exhibit
3
to the
Custodial Agreement.
“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.
40
“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, or (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 this 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.
“Responsible
Party”:
NC
Capital Corporation, a California corporation, or its successor in interest,
in
its capacity as responsible party under the Mortgage Loan Purchase
Agreement.
“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 (including Mortgage Loans
that
(i) are in foreclosure, (ii) have been converted to REO Properties or (iii)
have
been discharged due to bankruptcy) for each of the three (or one and two,
in the
case of the Distribution Dates in January 2007 and February 2007, respectively)
immediately preceding months.
“S&P”:
Standard & Poor’s Ratings Services, a division of the XxXxxx-Xxxx Companies,
Inc., or its successor in interest.
“Sarbanes
Certification”:
As
defined in Section 12.05(a)(iv).
“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.
41
“Servicer”:
New
Century Mortgage Corporation, a California 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.
“Servicer
Information”:
As
defined in Section 12.07(a)(i).
“Servicer
Prepayment Charge Payment Amount”:
The
amounts payable by the Servicer in respect of any waived Prepayment Charges
pursuant to Section
3.01.
“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 (other than Realized Losses which
are
Swap Payment Shortfalls, if any) 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:
|
Distribution
Date Occurring In
|
Percentage
|
|
|
January
2010 through December 2010
|
3.15%
for the first distribution date of this period, plus an additional
1/12th
of
1.80% for each distribution date thereafter
|
|
|
January
2011 through December 2011
|
4.95%
for the first distribution date of this period, plus an additional
1/12th
of
1.40% for each distribution date thereafter
|
|
|
January
2012 through December 2012
|
6.35%
for the first distribution date of this period, plus an additional
1/12th
of
0.80% for each distribution date thereafter
|
|
|
January
2013 and thereafter
|
7.15%
|
“Servicing
Account”:
The
account or accounts created and maintained pursuant to Section
3.09.
“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.
The
Servicer shall not be required to make any Nonrecoverable Servicing
Advances.
42
“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 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”:
0.500%
per annum.
“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)
to
service the Mortgage Loans properly and effectively.
“Short
Pay-off”:
As
defined in Section
3.07.
“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)
hereof.
“Stated
Principal Balance”:
With
respect to any Mortgage Loan: (a) as of any date of determination up to but
not
including the Distribution Date on which the proceeds, if any, of a Liquidation
Event with respect to such Mortgage Loan would be distributed, the 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
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
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,
to the
extent distributed pursuant to Section
4.01
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
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
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.
43
“Stepdown
Date”:
The
later to occur of (a) the Distribution Date occurring in January 2010 and
(b) the first Distribution Date on which the Credit Enhancement Percentage
with
respect to the Class A Certificates (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 56.80%.
“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
|
43.20%
|
M-6
|
81.70%
|
|
M-1
|
54.70%
|
M-7
|
85.20%
|
|
M-2
|
65.70%
|
M-8
|
87.40%
|
|
M-3
|
69.40%
|
M-9
|
90.40%
|
|
M-4
|
74.80%
|
M-10
|
93.90%
|
|
M-5
|
78.90%
|
|
|
44
“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.
“Sub-Servicing
Account”:
As
defined in Section
3.08.
“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.
“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).
“Swap
Account”:
The
separate trust account created and maintained by the Trustee.
“Swap
Agreement”:
The
interest rate swap agreement between the Swap Counterparty and the Trustee,
on
behalf of the Trust, which agreement provides for Net Swap Payments and Swap
Termination Payments to be paid, as provided therein, together with any
schedules, confirmations, credit support annexes or other agreements relating
thereto, attached hereto as Exhibit
K-1.
“Swap
Agreement Notional Balance”:
As to
the Swap Agreement and each “Floating Rate Payer Payment Date” (as defined in
the Swap Agreement), the amount set forth on Exhibit K-2
hereto
for such Floating Rate Payer Payment Date.
“Swap
Counterparty”:
The
swap counterparty under the Swap Agreement either (a) entitled to receive
payments from the Trustee from amounts payable by the Trust Fund under this
Agreement or (b) required to make payments to the Trustee for payment to
the
Trust Fund, in either case pursuant to the terms of the Swap Agreement, and
any
successor in interest or assign. Initially, the Swap Counterparty shall be
Swiss
Re Financial Corporation.
“Swap
LIBOR”:
LIBOR
as determined pursuant to the Swap Agreement.
“Swap
Counterparty Trigger Event”:
With
respect to any Distribution Date, (i) an “Event of Default” (as defined in the
Swap Agreement) with respect to which the Swap Counterparty is a “Defaulting
Party” (as defined in the Swap Agreement) or a “Termination Event” (as defined
in the Swap Agreement) (including an “Additional Termination Event” (as defined
in the Swap Agreement)) under the Swap Agreement with respect to which the
Swap
Counterparty is the sole “Affected Party” (as defined in the Swap
Agreement).
45
“Swap
Payment Shortfall”:
With
respect to any Distribution Date, a Realized Loss equal to the lesser of
(x) any
Net Swap Payment owed to the Swap Counterparty or Swap Termination Payment
on
any Distribution Date not due to a Swap Counterparty Trigger Event owed to
the
Swap Counterparty to the extent not covered by that portion of the Available
Distribution Amount (without giving effect to any Net Swap Payment owed to
the
Swap Counterparty or any Swap Termination Payment owed to the Swap Counterparty
not due to a Swap Counterparty Trigger Event) for that Distribution Date
that
represents interest received or advanced on the Mortgage Loans and (y) the
Available Distribution Amount (without giving effect to any Net Swap Payment
owed to the Swap Counterparty or any Swap Termination Payment owed to the
Swap
Counterparty not due to a Swap Counterparty Trigger Event) for that Distribution
Date other than the portion of the Available Distribution Amount for that
Distribution Date that represents interest received or advanced on the Mortgage
Loans.
“Swap
Termination Payment”:
Upon
the designation of an “Early Termination Date” (as defined in the Swap
Agreement), the payment to be made by the Trustee on behalf of the Trust
to the
Swap Counterparty from payments from the Trust Fund, or by the Swap Counterparty
to the Trustee for payment to the Trust Fund, as applicable, pursuant to
the
terms of the Swap Agreement.
“Tax
Returns”:
The
federal income tax return on Internal Revenue Service Form 1066, U.S. Real
Estate Mortgage Investment Conduit Income Tax Return, including Schedule
Q
thereto, Quarterly Notice to Residual Interest Holders of REMIC Taxable Income
or Net Loss Allocation, or any successor forms, to be filed on behalf of
the
Trust 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.
“Terminator”:
As
defined in Section 9.01.
“Third-Party
Originator”:
Each
Person, other than a Qualified Correspondent, that originated Mortgage Loans
acquired by the Servicer.
“Transaction
Party”:
As
defined in Section 11.02.
“Transfer”:
Any
direct or indirect transfer, sale, pledge, hypothecation, or other form of
assignment of any Ownership Interest in a Certificate.
46
“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:
(a) the
Delinquency Percentage exceeds 28.00% of the then current Credit Enhancement
Percentage with respect to the Class A Certificates for the prior Distribution
Date; or
(b) the
aggregate amount of Realized Losses (other than Realized Losses which are
Swap
Payment Shortfalls, if any) 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
|
|
|
January
2010 through December 2010
|
3.15%
for the first distribution date of this period, plus an additional
1/12th
of
1.80% for each distribution date thereafter
|
|
|
January
2011 through December 2011
|
4.95%
for the first distribution date of this period, plus an additional
1/12th
of
1.40% for each distribution date thereafter
|
|
|
January
2012 through December 2012
|
6.35%
for the first distribution date of this period, plus an additional
1/12th
of
0.80% for each distribution date thereafter
|
|
|
January
2013 and thereafter
|
7.15%
|
“Trust
Fund”:
Collectively, all of the assets of each Trust REMIC, the Swap Account, the
Swap
Agreement and the other assets conveyed by the Depositor to the Trustee pursuant
to Section
2.01.
“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.
“Trustee
Fee”:
The
amount payable to the Trustee on each Distribution Date pursuant to Section
8.05
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.
47
“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
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.
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).
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
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.
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.
“Underwriters’
Exemption”:
An
individual exemption issued by the United States Department of Labor, Prohibited
Transaction Exemption 90-30 (55 Fed. Reg. 21461, May 24, 1990), as amended,
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.
48
“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 the lesser of (1) the value determined by an appraisal
made
for the Originator of such Refinanced Mortgage Loan at the time of origination
of such Refinanced Mortgage Loan by an appraiser who met the minimum
requirements of Xxxxxx Mae and Xxxxxxx Mac and (2) the value thereof as
determined by a review appraisal conducted by the Originator in accordance
with
the Originator’s underwriting guidelines, and (B) in the case of a Mortgage Loan
originated in connection with a “lease-option purchase,” such value of the
Mortgaged Property is based on the lower of the value determined by an appraisal
made for the Originator of such Mortgage Loan at the time of origination
or the
sale price of such Mortgaged Property if the “lease option purchase price” was
set less than 12 months prior to origination, and is based on the value
determined by an appraisal made for the Originator of such Mortgage Loan
at the
time of origination if the “lease option purchase price” was set 12 months or
more prior to origination.
“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.
49
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-LTA5, 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 addition, on
the
Closing Date, the Trustee is hereby directed to enter into the Swap Agreement
on
behalf of the Trust Fund with the Swap Counterparty.
50
In
connection with such transfer and assignment, the Depositor shall deliver
to and
deposit with the Custodian on behalf of 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 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) 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 as contemplated by the immediately preceding clause
(iii);
(v) the
original or copies of each assumption, modification or substitution agreement,
if any; and
(vi) the
original lender’s title insurance policy or, if the original title policy has
not been issued, the irrevocable commitment to issue the same.
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 Custodian on behalf
of 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 Custodian on behalf of the Trustee is subsequently located,
such original Mortgage Note shall be delivered to
the
Custodian on behalf of 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 Custodian on behalf of the Trustee of
a copy
of each such document certified by the Originator 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 the Originator, delivery to the Custodian on behalf
of 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 Custodian on
behalf
of the Trustee, promptly after receipt thereof, the original lender’s title
insurance policy. The Depositor shall deliver or cause to be delivered to
the
Custodian on behalf of 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.
51
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
the Responsible Party 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 the Responsible
Party) 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
the Responsible Party 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, 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.
52
All
original documents relating to the Mortgage Loans that are not delivered
to the
Custodian on behalf of 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
Custodian on behalf of 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 by the Custodian 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, for the benefit of the Certificateholders, shall cause the Custodian
to
review each Mortgage File in accordance with the Custodial Agreement, on
or
before the Closing Date, and the Trustee shall cause the Custodian to certify
in
substantially the form attached
to the Custodial Agreement as Exhibit 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 the Custodian and appear regular on
their
face and relate to such Mortgage Loan and (iii) based on the Custodian’s
examination and only as to the foregoing, the information set forth in the
Mortgage Loan Schedule that corresponds to items
(i),
(ii),
(x),
(xi)
and
(xiv)
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 (or the Custodian,
as
applicable) is 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 (or the Custodian, if applicable, 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.
53
Prior
to
the first anniversary date of this Agreement, the Trustee shall cause the
Custodian to deliver as required under the Custodial Agreement to the Depositor,
the Trustee and the Servicer a final certification in the form attached to
the
Custodial Agreement as Exhibit 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 Custodian, on behalf of 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 Custodian, on behalf of the Trustee, shall so notify the Depositor
and the Servicer. In addition, upon the discovery by the Depositor, the
Servicer, the Custodian or the Trustee of a breach of any of the representations
and warranties made by either the Responsible Party 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,
cause the Custodian to provide a written report to the Trustee for forwarding
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 the Responsible Party 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 the
Responsible Party 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,
the Responsible Party and the Servicer of such defect, missing document or
breach and request that the Responsible Party or the Seller, as applicable,
deliver such missing document or cure such defect or breach within 60 days
from
the date the Responsible Party or the Seller, as applicable, was notified
of
such missing document, defect or breach, and if the Responsible Party 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 the Responsible Party 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 the
Responsible Party 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 the Responsible
Party 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, or the Custodian on behalf of the Trustee, upon receipt of written
certification from the Servicer of such deposit, shall release to the
Responsible Party 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 the Responsible Party or the
Seller, as applicable, shall furnish to it and as shall be necessary to vest
in
the Responsible Party 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, the
Responsible Party 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,
the
Responsible Party may not substitute a Qualified Substitute Mortgage Loan
for
any Deleted Mortgage Loan that violates any predatory or abusive lending
law. It
is understood and agreed that the obligation of the Responsible Party and
the
Seller to cure or to repurchase (or to substitute for) any Mortgage Loan
as to
which a document is missing, a material defect in a constituent document
exists
or as to which such a breach has occurred and is continuing shall constitute
the
sole remedy respecting such omission, defect or breach available to the Trustee
and the Certificateholders.
54
(b) Any
substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage
Loans
made pursuant to Section
2.03(a)
must be
effected prior to the date which is two years after the Startup Day for REMIC
I.
As
to any
Deleted Mortgage Loan for which the Responsible Party or the Seller, as
applicable, substitutes a Qualified Substitute Mortgage Loan or Loans, such
substitution shall be effected by the Responsible Party or the Seller, as
applicable, delivering to the Custodian, on behalf of the Trustee, for such
Qualified Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage,
the Assignment to the Trustee, and such other documents and agreements, with
all
necessary endorsements thereon, as are required by Section
2.01,
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. In accordance with the Custodial Agreement, the Trustee
shall
cause the Custodian to 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
cause the Custodian to deliver to the Depositor, the Trustee and the Servicer,
with respect to such Qualified Substitute Mortgage Loan or Loans, a
certification substantially in the form attached to the Custodial Agreement
as
Exhibit 1, with any applicable exceptions noted thereon. Within one year
of the
date of substitution, in accordance with the Custodial Agreement, the Trustee
shall cause the Custodian to deliver to the Depositor, the Trustee and the
Servicer a certification substantially in the form attached to the Custodial
Agreement as Exhibit 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 the Responsible Party 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 the Responsible
Party 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 and the Custodian. 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.
55
For
any
month in which the Responsible Party 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, the Responsible Party 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
by
the Custodian, on behalf of the Trustee, of the related Qualified Substitute
Mortgage Loan or Loans and certification by the Servicer to the Trustee of
such
deposit, the Trustee shall cause the Custodian to release, as required by
the
Custodial Agreement, to the Responsible Party 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, the
Responsible Party 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, the Responsible Party 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.
56
(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, the Responsible Party 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) the Responsible Party 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
the Responsible Party 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 the Responsible Party 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 a corporation duly organized and validly existing under the laws
of
the State of California and is duly authorized and qualified to transact
any and
all business contemplated by this Agreement to be conducted by the Servicer
in
any state in which a Mortgaged Property is located or is otherwise not required
under applicable law to effect such qualification and, in any event, is in
compliance with the doing business laws of any such State, to the extent
necessary to ensure its ability to enforce each Mortgage Loan and to service
the
Mortgage Loans in accordance with the terms of this Agreement;
(ii) The
Servicer has the full power and authority to conduct its business as presently
conducted by it and to execute, deliver and perform, and to enter into and
consummate, all transactions contemplated by this Agreement. The Servicer
has
duly authorized the execution, delivery and performance of this Agreement,
has
duly executed and delivered this Agreement, and this Agreement, assuming
due
authorization, execution and delivery by the Depositor and the Trustee,
constitutes a legal, valid and binding obligation of the Servicer, enforceable
against it in accordance with its terms except as the enforceability thereof
may
be limited by bankruptcy, insolvency, reorganization or similar laws affecting
the enforcement of creditors’ rights generally and by general principles of
equity;
57
(iii) The
execution and delivery of this Agreement by the Servicer, the servicing of
the
Mortgage Loans by the Servicer hereunder, the consummation by the Servicer
of
any other of the transactions herein contemplated, and the fulfillment of
or
compliance with the terms hereof are in the ordinary course of business of
the
Servicer and will not (A) result in a breach of any term or provision of
the
charter or by-laws of the Servicer or (B) conflict with, result in a breach,
violation or acceleration of, or result in a default under, the terms of
any
other material agreement or instrument to which the Servicer is a party or
by
which it may be bound, or any statute, order or regulation applicable to
the
Servicer of any court, regulatory body, administrative agency or governmental
body having jurisdiction over the Servicer; and the Servicer is not a party
to,
bound by, or in breach or violation of any indenture or other agreement or
instrument, or subject to or in violation of any statute, order or regulation
of
any court, regulatory body, administrative agency or governmental body having
jurisdiction over it, which materially and adversely affects or, to the
Servicer’s knowledge, would in the future materially and adversely affect, (x)
the ability of the Servicer to perform its obligations under this Agreement
or
(y) the business, operations, financial condition, properties or assets of
the
Servicer taken as a whole;
(iv) The
Servicer is a HUD-approved servicer. No event has occurred, including but
not
limited to a change in insurance coverage, that would make the Servicer unable
to comply with HUD eligibility requirements or that would require notification
to HUD;
(v) The
Servicer does not believe, nor does it have any reason or cause to believe,
that
it cannot perform each and every covenant made by it and contained in this
Agreement;
(vi) No
litigation is pending against the Servicer that would materially and adversely
affect the execution, delivery or enforceability of this Agreement or the
ability of the Servicer to service the Mortgage Loans or to perform any of
its
other obligations hereunder in accordance with the terms hereof;
(vii) There
are
no actions or proceedings against, or investigations known to it of, the
Servicer before any court, administrative or other tribunal (A) that might
prohibit its entering into this Agreement, (B) seeking to prevent the
consummation of the transactions contemplated by this Agreement or (C) that
might prohibit or materially and adversely affect the performance by the
Servicer of its obligations under, or validity or enforceability of, this
Agreement;
(viii) No
consent, approval, authorization or order of or registration or filing with
or
notice to any court or governmental agency or body is required for the
execution, delivery and performance by the Servicer of, or compliance by
the
Servicer with, this Agreement or the consummation by it of the transactions
contemplated by this Agreement, except for such consents, approvals,
authorizations or orders, if any, that have been obtained prior to the Closing
Date;
58
(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 fully furnished and will continue to fully furnish, in accordance
with the Fair Credit Reporting Act and its implementing regulations, accurate
and complete information (e.g., favorable and unfavorable) on its borrower
credit files to Equifax, Experian and Trans Union Credit Information Company
or
their successors on a monthly basis; and
(xi) No
information, certificate of an officer, statement furnished or to be furnished
in writing or report delivered to the Depositor, any Affiliate of the Depositor
or the Trustee by the Servicer will, to the knowledge of the Servicer, contain
any untrue statement of a material fact or omit a material fact necessary
to
make the information, certificate, statement or report not
misleading.
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.
59
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
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
all applicable laws and 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;
60
(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 to maximize
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 and (ii) such waiver would, in the reasonable
judgment of the Servicer, maximize recovery of total proceeds taking into
account the value of such Prepayment Charge and the related Mortgage Loan
and,
if such waiver is made in connection with a refinancing of the related Mortgage
Loan, such refinancing is related to a default or a reasonably foreseeable
default or (iii) collection of the related Prepayment Charge would violate
applicable law. If a Prepayment Charge is waived as permitted by meeting
both of
the standards described in clauses
(i)
and
(ii)
above,
then the Servicer is required 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 the Servicer in respect of any waived Prepayment
Charges pursuant to clauses
(i)
and
(ii)
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.
61
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.
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. 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.
62
(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. 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).
63
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.
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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 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.
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.
65
SECTION
3.09 Collection
of Taxes, Assessments and Similar Items; Servicing Accounts.
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 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.
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.
SECTION
3.10 Custodial
Account and Certificate Account.
(a) 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;
66
(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 late payment charges, modification or
assumption fees, or insufficient funds 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, by 3:00 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, the
Responsible Party, the Seller or any Sub-Servicer pursuant to Section 3.11
and
shall pay such amounts to the Persons entitled thereto.
67
(c) On
or
prior to the Business Day immediately following each Determination Date,
the
Swap Counterparty shall determine any amounts owed by the Swap Counterparty
under the Swap Agreement and inform the Trustee in writing of the amount
so
calculated.
(d) 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.
(e) 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 (e).
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
amounts required to be deposited pursuant to Section
3.24
in
connection with any Prepayment Interest Shortfall.
68
(f) 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).
(g) The
Trustee shall deposit in the Certificate 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 Certificate 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(e);
(ii) subject
to Section
3.16(d),
to
reimburse the Servicer for Advances, but only to the extent of amounts received
which represent Late Collections (net of the related Servicing Fees) of Monthly
Payments on Mortgage Loans with respect to which such Advances were made
in
accordance with the provisions of Section
4.03;
(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 Nonrecoverable Servicing Advances with respect to the final
liquidation of a Mortgage Loan, but only to the extent that Late Collections,
Liquidation Proceeds, Insurance Proceeds and Subsequent Recoveries 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, the Responsible Party 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 previously made which the Servicer
has
determined to be a Nonrecoverable Advance in accordance with the provisions
of
Section
4.03;
69
(vii) 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;
(viii) to
reimburse the Servicer or Trustee for expenses reasonably incurred in connection
with any breach or defect giving rise to the purchase obligation under
Section 2.03
of this
Agreement, including any expenses arising out of the enforcement of the purchase
obligation;
(ix) 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);
and
(x) to
clear
and terminate the Custodial Account pursuant to Section
9.01.
The
Servicer shall keep and maintain separate accounting, on a Mortgage Loan
by
Mortgage Loan basis, for the purpose of justifying any withdrawal from the
Custodial Account, to the extent held by or on behalf of it, pursuant to
subclauses
(ii),
(iii),
(iv),
(v),
(vi),
(viii)
and
(ix)
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 subclauses
(vi)
and
(vii)
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 clause
(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
and to
make payments to the Swap Counterparty which are payable by the Trustee to
the
Swap Counterparty pursuant to the Swap Agreement, in accordance with
Section
4.07(a);
(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
(for purposes of this Section
3.12,
an
“Investment
Account”)
and,
so long as the Trustee’s long-term senior unsecured debt is assigned a minimum
rating of “A” by Fitch, “A” by S&P or “A2” by Xxxxx’x, the Trustee may
direct any depository institution maintaining the Certificate Account (also
for
purposes of this Section
3.12,
an
“Investment
Account”)
to
invest the funds in such 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. 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 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:
70
(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. All income and gain realized from the investment
of funds deposited in the Certificate Account held by or on behalf of the
Trustee, shall be for the benefit of the Trustee and shall be subject to
its
withdrawal in accordance with Section
3.11.
The
Trustee shall deposit in the Certificate Account the amount of any loss of
principal incurred in respect of any such Permitted Investment made with
funds
in such account 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.
71
(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 fire 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, plus
accrued
interest at the Mortgage Rate and related Servicing Advances. 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).
72
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 Mae or Xxxxxxx Mac if it were the purchaser of the Mortgage Loans,
unless
the Servicer has obtained a waiver of such requirements from Xxxxxx Mae or
Xxxxxxx Mac. The Servicer shall also maintain a fidelity bond in the form
and
amount that would meet the requirements of Xxxxxx Mae or Xxxxxxx Mac, unless
the
Servicer has obtained a waiver of such requirements from Xxxxxx Mae or Xxxxxxx
Mac. The Servicer shall be deemed to have complied with this provision if
an
Affiliate of the Servicer has such errors and omissions and fidelity bond
coverage and, by the terms of such insurance policy or fidelity bond, the
coverage afforded thereunder extends to the Servicer. Any such errors and
omissions policy and fidelity bond shall by its terms not be cancelable without
thirty 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 the Originator 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 the Originator’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.
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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.
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(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)(ix),
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)(ix),
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.
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(c) The
Servicer or its designee may at its option, with ten (10) Business Days prior
written notice to the Depositor and the Seller, purchase from REMIC I any
Mortgage Loan or related REO Property that is 90 days or more delinquent,
which
the Servicer, or its designee, as applicable, determines in good faith will
otherwise become subject to foreclosure proceedings (evidence of such
determination to be delivered in writing to the Trustee, in form and substance
satisfactory to the Trustee prior to purchase), at a price equal to the Purchase
Price; provided,
however,
that
the Servicer, or its designee, as applicable, shall purchase any such Mortgage
Loans or related REO Properties on the basis of delinquency, purchasing the
most
delinquent Mortgage Loans or related REO Properties first. The Purchase Price
for any Mortgage Loan or related REO Property purchased hereunder shall be
deposited in the Custodial Account by the Servicer (if such optional purchase
is
exercised by a designee of the Servicer, the Purchase Price for any Mortgage
Loan or related REO Property purchased hereunder shall be paid by such designee
to the Servicer and the Servicer shall deposit such Purchase Price in the
Custodial Account), and the Trustee, upon receipt of written certification
from
the Servicer of such deposit, shall release or cause to be released to the
Servicer, or its designee, 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 the Servicer, or its designee, as applicable,
shall furnish and as shall be necessary to vest in the Servicer, or its
designee, as applicable, title to any Mortgage Loan or related REO Property
released pursuant hereto.
(d) Proceeds
received in connection with any Final Recovery Determination, as well as
any
recovery resulting from a partial collection of Insurance Proceeds, Liquidation
Proceeds or Subsequent Recoveries, in respect of any Mortgage Loan, will
be
applied in the following order of priority: first, to reimburse the Servicer
or
any Sub-Servicer for any related unreimbursed Servicing Advances and Advances,
pursuant to Section
3.11(a)(ii)
or
(a)(iii);
second,
to accrued and unpaid interest on the Mortgage Loan, to the date of the Final
Recovery Determination, or to the Due Date prior to the Distribution Date
on
which such amounts are to be distributed if not in connection with a Final
Recovery Determination; and third, as a recovery of principal of the Mortgage
Loan. If the amount of the recovery so allocated to interest is less than
the
full amount of accrued and unpaid interest due on such Mortgage Loan, the
amount
of such recovery will be allocated by the Servicer as follows: first, to
unpaid
Servicing Fees; and second, to the balance of the interest then due and owing.
The portion of the recovery so allocated to unpaid Servicing Fees shall be
reimbursed to the Servicer or any Sub-Servicer pursuant to Section
3.11(a)(iii).
SECTION
3.17 Trustee
and Custodian 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 Custodian by a certification in the form of
Exhibit
E
(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
Custodian on behalf of the Trustee shall promptly release the related Mortgage
File to the Servicer at no cost to the Trustee, the Custodian or the Trust
Fund.
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.
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(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 (or the Custodian on behalf of
the
Trustee) shall, upon any request made by or on behalf of the Servicer and
delivery to the Custodian of a Request for Release in the form of Exhibit
E,
release
the related Mortgage File to the Servicer, 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 Custodian on behalf of 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 Custodian an additional Request for Release certifying as to such
liquidation or action or proceedings. Upon the request of the Trustee (or
the
Custodian on behalf of the Trustee), the Servicer shall provide notice to
the
Trustee (or the Custodian on behalf of 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
(or
the Custodian on behalf of 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 Sections
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.
77
Additional
servicing compensation in the form of assumption fees, late payment charges,
insufficient funds charges 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, 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.
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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:
79
(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;
80
(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).
81
(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.
The
Servicer shall deliver to the Trustee for deposit into the Certificate Account
by 1:00 p.m. New York time on the Servicer Remittance Date from its own funds
an
amount equal to the lesser of (i) the aggregate of the Prepayment Interest
Shortfalls for the related Distribution Date resulting from full Principal
Prepayments during the related Prepayment Period and (ii) the aggregate
Servicing Fee for the related Prepayment Period. Any amounts paid by the
Servicer pursuant to this Section
3.24
shall
not be reimbursed by any Trust REMIC or the Trust Fund.
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.
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(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.
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:
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(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-LTA5, 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-LTA5, 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 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-LTA5, 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 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
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(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, 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, 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
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) concurrently,
on a pro rata basis (based on the Certificate Principal Balance of the Class
A-5
Certificates, on the one hand, and the aggregate Certificate Principal Balance
of the Class A-1 Certificates and Class A-2 Certificates, on the other hand),
as
follows:
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(a) to
the
Holders of the Class A-5 Certificates, until the Certificate Principal Balance
of the Class A-5 Certificates has been reduced to zero; and
(b) sequentially,
to the Holders of the Class A-1 Certificates and Class A-2 Certificates,
in that
order, until the Certificate Principal Balance of each such Class has been
reduced to zero;
(ii) sequentially,
to the Holders of the Class A-3 Certificates and Class A-4 Certificates,
in that
order, until the Certificate Principal Balance of each such Class has been
reduced to zero; and
(iii) 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
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) to
the
holders of the Class A-1 Certificates, Class A-2 Certificates, Class A-3
Certificates, Class A-4 Certificates and Class A-5 Certificates, up to an
amount
equal to the Class A Principal Distribution Amount, in the following order
of
priority:
(a) concurrently,
on a pro rata basis (based on the Certificate Principal Balance of the Class
A-5
Certificates, on the one hand, and the aggregate Certificate Principal Balance
of the Class A-1 Certificates and Class A-2 Certificates, on the other hand),
as
follows:
(1) to
the
Holders of the Class A-5 Certificates, until the Certificate Principal Balance
of the Class A-5 Certificates has been reduced to zero; and
(2) sequentially,
to the Holders of the Class A-1 Certificates and Class A-2 Certificates,
in that
order, until the Certificate Principal Balance of each such Class has been
reduced to zero; and
(b) sequentially,
to the Holders of the Class A-3 Certificates and Class A-4 Certificates,
in that
order, until the Certificate Principal Balance of each such Class has been
reduced to zero; and
86
(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 Balance 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 up 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, up
to an
amount equal to the Interest Carry Forward Amount allocable to such Class
of
Certificates;
(iii) concurrently,
on a pro
rata
basis,
based on the amount of any Allocated Realized Loss Amounts previously allocated
thereto that remain unreimbursed, to the Holders of the Class A-1 Certificates,
Class A-2 Certificates, Class A-3 Certificates, Class A-4 Certificates and
Class
A-5 Certificates, and then 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 up to the related Allocated Realized
Loss Amount related to each such Class of Certificates for such Distribution
Date;
(iv) to
the
Holders of the Class A Certificates and the Mezzanine Certificates, any related
unpaid Net WAC Rate Carryover Amount distributed to the Holders of the Class
A
Certificates on a pro rata basis based on the remaining Net WAC Rate Carryover
Amount for each such Class and then to the Holders of the Class of Mezzanine
Certificates in order of Highest Priority;
87
(v) to
pay
any Swap Termination Payments owed to the Swap Counterparty due to a Swap
Counterparty Trigger Event;
(vi) 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
(vii) 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.
(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.
88
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.
89
(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 customary information
as
the Trustee deems necessary or desirable, or which a Certificateholder
reasonably requests, to enable Certificateholders to prepare their tax
returns;
90
(vii) the
amount of Net
Monthly Excess Cashflow or
and
the disposition of such Net Monthly Excess Cashflow;
(viii) [Reserved];
(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) to
the
extent not included in the related Form 10-D, 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) to
the
extent such information is provided to the Trustee by the Servicer, 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;
91
(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 and the aggregate amount of Realized Losses incurred since the Closing
Date;
(xx) the
aggregate amount of Extraordinary Trust Fund Expenses withdrawn from the
Custodial Account or 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, the
Mezzanine Certificates, the Class CE 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;
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(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) the
amount of any Net Swap Payment payable to the Trustee on behalf of the Trust,
any Net Swap Payment payable to the Swap Counterparty, any Swap Termination
Payment payable to the Trustee on behalf of the Trust and any Swap Termination
Payment payable to the Swap Counterparty.
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.
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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 Business Day following each Determination Date, the Servicer shall deliver
to the Trustee by telecopy (or by such other means as the Servicer or 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) 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; provided,
however,
that
the Servicer shall not be required to make Advances with respect to Relief
Act
Interest Shortfalls or Prepayment Interest Shortfalls in excess of their
respective obligations under Section
3.24.
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 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.
94
(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; (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
and
(iii) the total amount of Realized Losses, if any, incurred in connection
with
Swap Payment Shortfalls as of the Distribution Date in the month in which
such
Swap Payment Shortfalls were incurred. 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, (ii) in the case of Swap Payment Shortfalls,
the
Distribution Date in the month in which such Swap Payment Shortfall was incurred
and (iii) in the case of all other Realized Losses, the Prepayment Period
during which any such Realized Loss was incurred.
95
(b) All
Realized Losses on the Mortgage Loans shall be allocated or covered by the
Trustee on each Distribution Date as follows: first, by Net Monthly Excess
Cash
Flow; second, by any amounts available from the Swap Agreement for such
Distribution Date pursuant to Section 4.07;
third,
to the Class CE Certificates, until the Certificate Principal Balance thereof
has been reduced to zero; fourth, to the Class M-10 Certificates, until the
Certificate Principal Balance thereof has been reduced to zero; fifth, to
the
Class M-9 Certificates, until the Certificate Principal Balance thereof has
been
reduced to zero; sixth, to the Class M-8 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero; seventh, to the Class
M-7
Certificates until the Certificate Principal Balance thereof has been reduced
to
zero; eighth, to the Class M-6 Certificates until the Certificate Principal
Balance thereof has been reduced to zero; ninth, to the Class M-5 Certificates
until the Certificate Principal Balance thereof has been reduced to zero;
tenth,
to the Class M-4 Certificates until the Certificate Principal Balance thereof
has been reduced to zero; eleventh, to the Class M-3 Certificates until the
Certificate Principal Balance thereof has been reduced to zero; twelfth,
to the
Class M-2 Certificates, until the Certificate Principal Balance thereof has
been
reduced to zero; thirteenth, to the Class M-1 Certificates, until the
Certificate Principal Balance thereof has been reduced to zero; and fourteenth,
concurrently, to the Class A-1 Certificates, Class A-2 Certificates, Class
A-3
Certificates, Class A-4 Certificates and Class A-5 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.
96
(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 the REMIC I Regular
Interest I-LTAA, the REMIC I Regular Xxxxxxxxx X-XXX0, X-XXX0, X-XXX0, X-XXX0
and I-LTA5 on a pro
rata
basis,
and the REMIC I Regular Interest I-LTZZ, 98%, 1% and 1%, respectively, until
the
respective Uncertificated Balance of such REMIC I Regular Interests have
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.
97
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 and the Servicer 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.
98
(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 Sarbanes Certification signed by the Depositor
as
described in Section
12.05.
In
addition, the Trustee shall sign a certification (in the form attached hereto
as
Exhibit
I-2)
for the
benefit of the Servicer and its officers, directors and Affiliates regarding
certain aspects of the Servicer 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.
99
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 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.
100
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 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 shall be signed by a
senior officer of the Trustee and any Form 12b-25 or any amendment to Form
10-D,
Form 8-K or Form 10-K 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.
101
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.
SECTION
4.07 The
Swap Agreement.
(a) On
the Closing Date, the Trustee shall (i) establish and maintain in its name,
in trust for the benefit of Class A and Mezzanine Certificates, the Swap
Account
and (ii) for the benefit of the Class A and Mezzanine Certificates, cause
the
Trust to enter into the Swap Agreement. The Trustee shall deposit in the
Swap
Account all payments that are payable to the Trust Fund under the Swap
Agreement. Net Swap Payments and Swap Termination Payments (other than Swap
Termination Payments resulting from a Swap Counterparty Trigger Event) payable
by the Trustee to the Swap Counterparty pursuant to the Swap Agreement shall
be
excluded from the Available Distribution Amount and shall be paid to the
Swap
Counterparty pursuant to the Swap Agreement prior to any distributions to
the
Certificateholders. On the Business Day prior to each Distribution Date,
such
amounts will be remitted by the Trustee to the Swap Account for payment to
the
Swap Counterparty, first to make any Net Swap Payment owed to the Swap
Counterparty pursuant to the Swap Agreement for such Distribution Date, and
second to make any Swap Termination Payment (not due to a Swap Counterparty
Trigger Event) owed to the Swap Counterparty pursuant to the Swap Agreement
for
such Distribution Date. For federal income tax purposes, such amounts paid
to
the Swap Account on the Business Day prior to each Distribution Date shall
be
deemed paid to the Swap Account in respect of REMIC II Regular Interest CE-IO
to
the extent of the amount distributable on such REMIC II Regular Interest
on such
Distribution Date. Any Swap Termination Payment triggered by a Swap Counterparty
Trigger Event owed to the Swap Counterparty pursuant to the Swap Agreement
will
be subordinated to distributions to the Holders of the Class A and Mezzanine
Certificates and shall be paid as set forth under Section 4.01(a)(4)(v).
Net
Swap Payments payable by the Swap Counterparty to the Trustee on behalf of
the
Trust Fund pursuant to the Swap Agreement will be deposited by the Trustee
into
the Swap Account. On each Distribution Date, to the extent required, the
Trustee
shall withdraw the following amounts from the Swap Account to distribute
to the
Certificates in the following order of priority, in the case of clauses
(D),
(F),
(G)
and
(H),
to the
extent not covered by Net Monthly Excess Cash Flow:
102
(A) first,
to the
Holders of the Class A Certificates, to pay any unpaid Senior Interest
Distribution Amount allocable to such Class of Class A Certificates, on a
pro rata basis based on the entitlement of each such class (in each case
to the
extent not covered by the Interest Remittance Amount);
(B) second,
to the
Holders of the Class A Certificates, to pay accrued and unpaid interest to
the
extent unpaid from interest collections, but only to the extent of Prepayment
Interest Shortfalls (not covered by payments by the Servicer pursuant to
Section
3.24)
allocated to such Certificates on such Distribution Date, on a pro rata basis,
based on the amount of such Prepayment Interest Shortfalls previously allocated
thereto that remain unreimbursed;
(C) third,
to
the
Holders of the Mezzanine Certificates, in their order of payment priority,
to
pay any unpaid Interest Distribution Amount allocable to each such class
(in
each case to the extent not covered by the Interest Remittance
Amount);
(D) fourth,
to
the
Holders of the Mezzanine Certificates, in order of Highest Priority, in each
case up to the related unpaid Interest Carry Forward Amount related to such
Certificates for such Distribution Date;
(E) fifth,
to the
Holders of the Mezzanine Certificates, in order of Highest Priority, to pay
accrued and unpaid interest to the extent unpaid from interest collections,
but
only to the extent of Prepayment Interest Shortfalls (not covered by payments
by
the Servicer pursuant to Section
3.24)
allocated to such Certificates on such Distribution Date;
(F) sixth,
to the
Holders of the Class A Certificates, on a pro rata basis, based on the amount
of
Net WAC Rate Carryover Amounts previously allocated thereto that remain
unreimbursed, and then sequentially to the Holders of the Class of Mezzanine
Certificates in order of Highest Priority, the amount of any Net WAC Rate
Carryover Amounts remaining unpaid as of that Distribution Date;
(G) seventh,
to the
Holders of the Class or Classes of Class A and Mezzanine Certificates then
entitled to receive distributions in respect of principal, in an amount equal
to
the Overcollateralization Increase Amount, distributable as part of the
Principal Distribution Amount, but only to the extent of the principal portion
of Realized Losses for such Distribution Date;
(H) eighth,
to the
Holders of the Class A Certificates, on a pro rata basis, based on the amount
of
any Allocated Realized Loss Amounts previously allocated thereto that remain
unreimbursed, and then to the Holders of the Class of Mezzanine Certificates,
in
order of Highest Priority, the principal portion of any Allocated Realized
Loss
Amount previously allocated thereto that remain unreimbursed; and
(I) ninth,
to the
Holders of the Class CE Certificates any balance remaining.
103
(b)
Subject to Sections
8.01
and
8.02
hereof,
the Trustee agrees to comply with the terms of the Swap Agreement and to
enforce
the terms and provisions thereof against the Swap Counterparty at the written
direction of the Holders of Class A and Mezzanine Certificates entitled to
at
least 51% of the Voting Rights of such Classes of Certificates, or if the
Trustee does not receive such direction from such Certificateholders, then
at
the written direction of the Class CE Certificateholder.
(c)
The
Swap Account shall be an Eligible Account. Amounts held in the Swap Account
from
time to time shall continue to constitute assets of the Trust Fund, but not
of
any REMIC, until released from the Swap Account pursuant to this Section
4.07.
The
Swap Account constitutes an “outside reserve fund” within the meaning of
Treasury Regulation Section 1.860G-2(h) and is not an asset of any REMIC.
The
Class CE Certificateholder shall be the owner of the Swap Account. The Trustee
shall keep records that accurately reflect the funds on deposit in the Swap
Account. All funds in the Swap Account shall remain uninvested.
(d)
The
Trustee shall treat the holders of each Class of Certificates (other than
the
Class CE Certificates and Class R Certificates) as having entered into a
notional principal contract with the holders of the Class CE Certificates.
Pursuant to each such notional principal contract, all holders of Certificates
(other than the Class CE Certificates and Class R Certificates) shall be
treated
as having agreed to pay, on each Distribution Date, to the holder of the
Class
CE Certificates an aggregate amount equal to the excess, if any, of (i) the
amount payable on such Distribution Date on the REMIC II Regular Interest
corresponding to such Class of Certificates over (ii) the amount payable
on such
Class of Certificates on such Distribution Date (such excess, a “Class
IO Distribution Amount”).
In
addition, pursuant to such notional principal contract, the holder of the
Class
CE Certificates shall be treated as having agreed to pay the related Net
WAC
Rate Carryover Amounts to the holders of the Certificates (other than the
Class
CE Certificates and Class R Certificates) in accordance with the terms of
this
Agreement. Any payments to the Certificates from amounts deemed received
in
respect of this notional principal contract shall not be payments with respect
to a “regular interest” in a REMIC within the meaning of Code Section
860G(a)(1). However, any payment from the Certificates (other than the Class
CE
Certificates and Class R Certificates) of a Class IO Distribution Amount
shall
be treated for tax purposes as having been received by the holders of such
Certificates in respect of the REMIC II Regular Interest corresponding to
such
Class of Certificates and as having been paid by such holders to the Swap
Account pursuant to the notional principal contract. Thus, each Certificate
(other than the Class CE Certificates and Class R Certificates) shall be
treated
as representing not only ownership of regular interests in REMIC II, but
also
ownership of an interest in, and obligations with respect to, a notional
principal contract.
(e)
On
the Closing Date, the Trustee shall establish and maintain a Posted Collateral
Account pursuant to the terms of the Swap Agreement. The Trustee shall deposit
in the Posted Collateral Account all collateral posted by the Swap Counterparty
pursuant to Paragraph 13(g)(i) of the credit support annex to the Swap Agreement
and held by Trustee, on behalf of the Trust, pursuant to the credit support
annex to the Swap Agreement. Assets deposited into the Posted Collateral
Account
(i) shall not be commingled or used with any other asset held by the Trustee
and
(ii) shall not be transferred to any other person or entity except as may
be
provided in the Swap Agreement. The Posted Collateral Account shall be an
Eligible Account. All funds in the Posted Collateral Account shall remain
uninvested. The Posted Collateral Account and any amounts or assets held
in such
account shall not be part of any REMIC created hereunder.
104
SECTION
4.08 Tax
Treatment of Swap Payments and Swap Termination Payments.
(a) For
federal income tax purposes, each holder of a Class A Certificate or a Mezzanine
Certificate is deemed to own an undivided beneficial ownership interest in
a
REMIC regular interest and the right to receive payments from the Swap Account
in respect of the Net WAC Rate Carryover Amount, and the obligation to make
payments to the Swap Account as provided herein. For federal income tax
purposes, the Trustee will account for payments to each Class A and Mezzanine
Certificates as follows: each Class A and Mezzanine Certificate will be treated
as receiving their entire payment from REMIC II (regardless of any Swap
Termination Payment or obligation under the Swap Agreement) and subsequently
paying their portion of any Swap Termination Payment in respect of each such
Class’ obligation under the Swap Agreement. In the event that any such Class is
resecuritized in a REMIC, the obligation under the Swap Agreement to pay
any
such Swap Termination Payment (or any Net Swap Payment), will be made by
one or
more of the REMIC Regular Interests issued by the resecuritization REMIC
subsequent to such REMIC Regular Interest receiving its full payment from
any
such Class A or Mezzanine Certificate. Resecuritization of any Class A or
Mezzanine Certificate in a REMIC will be permissible only if the Trustee
hereunder is the trustee in such resecuritization.
(b)
The
REMIC regular interest corresponding to a Class A or Mezzanine Certificate
will
be entitled to receive interest and principal payments at the times and in
the
amounts equal to those made on the certificate to which it corresponds, except
that (i) the maximum interest rate of that REMIC regular interest will equal
the
Net WAC Pass-Through Rate computed for this purpose by limiting the base
calculation amount of the Swap Agreement to the aggregate principal balance
of
the Mortgage Loans and (ii) any Swap Termination Payment will be treated
as
being payable solely from Net Monthly Excess Cash Flow. As a result of the
foregoing, the amount of distributions and taxable income on the REMIC regular
interest corresponding to a Class A or Mezzanine Certificate may exceed the
actual amount of distributions on the Class A or Mezzanine
Certificate.
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.
105
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.
106
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.
107
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
purchase or transfer of the Class CE Certificates, the Class P Certificates
or
the Residual Certificates 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 Certificates with “plan assets” (within the meaning of the
Department of Labor regulation promulgated at 29 C.F.R. § 2510.3-101, as
modified by Section 3(42) of ERISA (“Plan
Assets”))
of a
Plan, as certified by such beneficial owner in the form of Exhibit
G,
unless
the beneficial owner provides
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 such 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.
108
(ii) Until
the
Swap Agreement terminates in January 2011, the Class A-3 Certificates, the
Class
A-4 Certificates, the Class A-5 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, the Class M-9 Certificates and
the
Class M-10 Certificates or any interest therein may not be purchased by or
transferred to a Plan, any Person acting, directly or indirectly, on behalf
of
any such Plan or any Person acquiring such Certificates with Plan Assets.
Each
beneficial owner of such Certificates or any interest therein shall be deemed
to
have represented, by virtue of its acquisition or holding of such Certificates
or any interest therein, that it is not a Plan, any Person acting, directly
or
indirectly, on behalf of any such Plan or any Person acquiring such Certificates
with Plan Assets. After the termination of the Swap Agreement in January
2011,
each beneficial owner of the Class A-3 Certificates, the Class A-4 Certificates,
the Class A-5 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, the Class M-9 Certificates or the Class M-10
Certificates or any interest therein shall be deemed to have represented,
by
virtue of its acquisition or holding of such Certificates or any interest
therein, that either (A) it is not a Plan, any Person acting, directly or
indirectly, on behalf of any such Plan or any Person acquiring such Certificates
with Plan Assets, (B) it has acquired and is holding such Certificates 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 Certificates must be rated, at the time of purchase, not lower
than
“BBB-” (or its equivalent) by Fitch, S&P or Xxxxx’x and such 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 Certificates or any interest therein is an “insurance
company general account,” as such term is defined in Prohibited Transaction
Class Exemption, or PTCE, 95-60, and (3) the conditions in Sections I and
III of
PTCE 95-60 have been satisfied.
(iii) Until
the
swap agreement terminates in January 2011, the Class A-1 Certificates and
the
Class A-2 Certificates or any interest therein may not be purchased by or
transferred to a Plan, any Person acting, directly or indirectly, on behalf
of
any such Plan or any Person acquiring such Certificates with Plan Assets
unless
the beneficial owner of such Certificates or any interest therein represents
that its acquisition and holding of such Certificates or any interest therein
is
eligible for exemptive relief under one or more of the following exemptions:
Prohibited Transaction Class Exemption (“PTCE”)
96-23
(for transactions effected by “in-house asset managers”; XXXX 00-00 (for
transactions by insurance company general accounts); PTCE 91-38, (for
transactions by bank collective investment funds); XXXX 00-0 (for transactions
by insurance company pooled separate accounts); PTCE 84-14 (for transactions
effected by “qualified professional asset managers”) (collectively, the
“Investor Exemptions”) and Section 408(b)(17) of ERISA (for transactions between
a Plan and a person or an entity that is a party in interest to such Plan
(other
than a party in interest that is a fiduciary, or its affiliate, that has
or
exercises discretionary authority or control or renders investment advice
with
respect to the assets of the Plan involved in the transaction) solely by
reason
of providing services to the Plan, but only if the Plan pays no more, or
receives no less, than adequate consideration) (the “Service Provider
Exemption”). After the termination of the Swap Agreement in January 2011, each
beneficial owner of the Class A-1 Certificates or the Class A-2 Certificates
or
any interest therein shall be deemed to have represented, by virtue of its
acquisition or holding of such Certificates or any interest therein, that
either
(A) it is not a Plan, any Person acting, directly or indirectly, on behalf
of
any such Plan or any Person acquiring such Certificates with Plan Assets,
(B) it
has acquired and is holding such Certificates 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 Certificates
must be rated, at the time of purchase, not lower than “BBB-” (or its
equivalent) by Fitch, S&P or Xxxxx’x and such 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) it has acquired and is holding such Certificates in reliance
on
the Service Provider Exemption or one or more of the Investor Exemptions
and it
understands that there are certain conditions to the availability of the
Service
Provider Exemption and the Investor Exemptions.
109
(iv) 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.
(v) 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:
110
(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(e)
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.
111
(iii) (A) If
any
purported Transferee shall become a Holder of a Residual Certificate in
violation of the provisions of this Section
5.02(e),
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(e)
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(e)
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(e)
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
112
(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.
113
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 12.01,
(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.
114
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)
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(a)
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).
115
(b) In
taking
or recommending any course of action pursuant to this Agreement, unless
specifically required to do so pursuant to this Agreement, the Servicer shall
not be required to investigate or make recommendations concerning potential
liabilities which the Trust might incur as a result of such course of action
by
reason of the condition of the Mortgaged Properties but shall give notice
to the
Trustee if it has notice of such potential liabilities.
SECTION
6.04 Limitation
on Resignation of the Servicer.
(a) The
Servicer shall not resign from the obligations and duties hereby imposed
on it
except upon determination that its duties hereunder are no longer permissible
under applicable law or as provided in Section
6.04(c).
Any
such determination pursuant to the preceding sentence permitting the resignation
of the Servicer shall be evidenced by an Opinion of Counsel to such effect
obtained at the expense of the Servicer and delivered to the Trustee. No
resignation of the Servicer shall become effective until the Trustee or a
successor servicer shall have assumed the Servicer’s responsibilities, duties,
liabilities (other than those liabilities arising prior to the appointment
of
such successor) and obligations under this Agreement.
(b) Except
as
expressly provided herein, the Servicer shall not assign or transfer any
of its
rights, benefits or privileges hereunder to any other Person, or delegate
to or
subcontract with, or authorize or appoint any other Person to perform any
of the
duties, covenants or obligations to be performed by the Servicer hereunder.
The
foregoing prohibition on assignment shall not prohibit the Servicer from
designating a Sub-Servicer as payee of any indemnification amount payable
to the
Servicer hereunder; provided,
however,
that as
provided in Section
3.06
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) 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 Depositor or 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.
116
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
or an
amount required to be delivered on any servicer Remittance Date pursuant
to
Section
3.10(b)(i))
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
117
(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 (a) 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 or (b) to deliver an amount
required to be delivered on any Servicer Remittance Date pursuant to
Section
3.10(b)(i) which
continues unremedied until 12:00 p.m. New York time on the Business Day
immediately following the Servicer Remittance Date.
118
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.
119
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.
(a) 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.
120
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;
121
(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
or
the Swap 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;
122
(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. Except as provided in Section 3.12(b) with respect to the
funds
on deposit in the Certificate Account, in no event shall the Trustee be liable
for the selection of investments or for investment losses incurred thereon
and
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.
123
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 shall pay, from its own funds,
the Custodian Fee as compensation for the Custodian’s services under the
Custodial Agreement as separately agreed to with the Custodian. In addition,
the
Trustee shall pay the Custodian amounts from the Certificate Account as set
forth below. 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 Swap Agreement, 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.
It is
understood by the parties hereto that a “claim” as used in the preceding
sentence includes any claim for indemnification made by the Custodian under
Section 24 of the Custodial Agreement; provided, however, that the Trustee
shall
not lose any right it may have to indemnification under this Section
8.05
due to
the willful misfeasance, bad faith or negligence of the Custodian in the
performance of its duties under the Custodial Agreement or by reason of the
Custodian’s reckless disregard of its obligations and duties under the Custodial
Agreement. 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.
124
(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.
125
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.
126
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.
127
(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 Custodial Agreement and Swap Agreement.
The
Depositor hereby directs the Trustee to execute, deliver and perform its
obligations under the Custodial Agreement and the Swap Agreement 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 Custodial Agreement and the Swap Agreement
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.
128
SECTION
8.14 Appointment
of the Custodian.
The
Trustee may, at the direction of the Depositor and with the consent of the
Servicer, appoint the Custodian to hold all or a portion of the Mortgage
Files
as agent for the Trustee, by entering into the Custodial Agreement. The
appointment of the Custodian may at any time be terminated in accordance
with
the Custodial Agreement and a substitute custodian appointed therefor upon
the
reasonable request of the Servicer to the Trustee, the consent to which shall
not be unreasonably withheld. The Trustee shall pay the fees (out of the
Trustee
Fee) and expenses not covered by the monthly fee paid to the Custodian and
indemnity afforded to the Custodian (out of the Certificate Account) in
accordance with Section 8.05
hereof
and the Custodial Agreement. The Trustee, as directed by the Depositor and
with
the consent of the Servicer initially appoints Deutsche Bank National Trust
Company, as Custodian. Subject to Article
VIII
hereof,
the Trustee agrees to comply with the terms of the Custodial Agreement and
to
enforce the terms and provisions thereof against the Custodian for the benefit
of the Certificateholders having an interest in any Mortgage File held by
the
Custodian. The Custodian shall be a depository institution or trust company
subject to supervision by federal or state authority, shall have combined
capital and surplus of at least $10,000,000 and shall be qualified to do
business in the jurisdiction in which it holds any Mortgage File. The Custodial
Agreement may be amended only as provided therein. The Trustee shall not
be
liable for the acts or omissions of the Custodian. In no event shall the
appointment of the Custodian pursuant to the Custodial Agreement diminish
the
obligations of the Trustee hereunder.
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, any Swap Termination Payment payable to
the
Swap Counterparty then remaining unpaid or which is due to the exercise of
such
option, 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.
129
(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.
130
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.
131
(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 REMIC
regular interest components of the Class A Certificates, the Mezzanine
Certificates and the Class CE 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.
132
(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.
133
(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.
134
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.
135
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.
136
(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 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;
137
(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 [Reserved].
SECTION
12.02 [Reserved].
SECTION
12.03 Information
to Be Provided by the Servicer.
The
Servicer shall (i) within five Business Days following 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 paragraph
(c)
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
(a)
of this
Section.
(a) If
so
requested by the Seller or the Depositor for the purpose of satisfying its
reporting obligation under the Exchange Act with respect to any class of
asset-backed securities, 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 material litigation or governmental proceedings pending
against the Servicer, any Sub-Servicer or any Third-Party Originator and
(B) any
affiliations or relationships that develop following the Closing Date between
the Servicer, any Sub-Servicer or any Third-Party Originator (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.
(b) As
a
condition to the succession to the Servicer or any Sub-Servicer as servicer
or
subservicer 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 asset-backed securities.
138
(c) 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.
On or
before March 1 of each calendar year, commencing in 2007, the Servicer shall
deliver 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 and any applicable Mortgage Loan
Purchase 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
and any applicable Mortgage Loan Purchase 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) On
or before March 1 of each calendar year commencing in 2007, the Servicer
shall:
(i) deliver
to the Seller, the Trustee and the Depositor a report (in form and substance
reasonably satisfactory to the Seller and the Depositor) 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
addressed to the Seller and the Depositor and 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
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 reasonably acceptable to the Seller and the Depositor 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
the
Trustee and 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;
139
(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) if
requested by the Seller or the Depositor not later than February 1 of the
calendar year in which such certification is to be delivered, deliver to
the
Depositor the certification (a “Sarbanes
Certification”)
required by Rules 13a-14(d) and 15d-14(d) under the Exchange Act (pursuant
to
Section 302 of the Xxxxxxxx-Xxxxx Act of 2002) on behalf of an asset-backed
issuer with respect to the transactions contemplated by this Agreement, a
certification in the form attached hereto as Exhibit
I-1.
The
Servicer acknowledges that the Depositor 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 an issuing entity whose asset pool includes
Mortgage Loans.
(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
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
12.03(b),
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(a)
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 under Section
12.05
as and
when required to be delivered.
140
(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.
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, 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;
or
141
(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.
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
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.
142
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 October 4, 2006 together with the Prospectus
Supplement dated December 14, 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), (vi) or
(vii),
as
evidenced by either (a) an Opinion of Counsel delivered to the Trustee
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.
143
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. Notwithstanding
any
of the other provisions of this Section 13.01,
none of
the Depositor, the Servicer or the Trustee shall enter into any amendment
to
Section 4.07
or
Section 4.01(a)(4)(v)
of this
Agreement without the prior written consent of the Swap
Counterparty.
Promptly
after the execution of any such amendment the Trustee shall furnish a copy
of
such amendment to each Certificateholder and the Swap Counterparty.
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.
144
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.
Notwithstanding
any of the other provisions of this Section
13.01,
none of
the Depositor, the Servicer and the Trustee shall enter into any amendment
to
Section
3.11(b),
Section
4.07,
this
Section
13.01,
Section
13.09,
or
Section
13.14
of this
Agreement which would adversely affect in any material aspect the Swap
Counterparty’s rights under this Agreement without the prior written consent of
the Swap Counterparty, which consent shall not be unreasonably
withheld.
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.
145
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, 00000 Xxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxxxx
00000, Attention: Xxxxx Xxxxx (telecopy number: (000) 000-0000), 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, the 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.
146
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.
147
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;
and (vi) the Swap Account and all amounts payable pursuant to the Swap
Agreement in accordance with the terms thereof; (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 to provide the Swap Counterparty the benefit of
Section 4.07
and
4.01(a)(4)(v);
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.
148
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 Third-Party
Beneficiaries.
The
Swap Counterparty is an express third-party beneficiary of this Agreement,
and
shall have the right to enforce the provisions of this Agreement.
149
SECTION
13.15 Perfection
Representations.
The
Perfection Representations shall be a part of this Agreement for all
purposes.
SECTION
13.16 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 January 2007, 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 January 2007,
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.
150
(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.
(vi) The
Servicer shall provide the Class CE Certificateholder with written notice
at
least five Business Days in advance of the Servicer’s intention to (i) institute
foreclosure proceedings, (ii) accept a Short Pay-off, (iii) make any
modification pursuant to Section
3.07
material
to the terms of the Mortgage Loan, or (iii) obtain a deed-in-lieu of foreclosure
in respect of any Mortgaged Property.
(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 such Sub-Servicer by 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.
151
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.
152
(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]
153
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
Name: Xxxxx X. Xxxx
Title: President
NEW
CENTURY MORTGAGE CORPORATION,
as
Servicer
By:
/s/
Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Executive Vice President
Name: Xxxxx Xxxxx
Title: Executive Vice President
XXXXX
FARGO BANK, N.A., as Trustee
By:
/s/
Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Assistant Vice President
Name: Xxxxxx X. Xxxxxx
Title: Assistant Vice President
S-1
|
STATE
OF CONNECTICUT
|
)
|
|
)
ss.:
|
|
|
COUNTY
OF FAIRFIELD
|
)
|
On
the
14th
day of
December, 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/
Xxxxxxxxx Xxxxxx
Notary
Public
[Notarial
Seal]
Xxxxxxxxx
Xxxxxx
NOTARY
PUBLIC
My
Commission Expires 6/30/2010
S-2
|
STATE
OF CALIFORNIA
|
) |
|
)
ss.:
|
|
|
COUNTY
OF ORANGE
|
) |
On
the
14th
day of
December 2006, before me, a notary public in and for said State, personally
appeared Xxxxx Xxxxx, known to me to be a Executive Vice President of New
Century Mortgage Corporation, 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/
Xxxxxxx X. Xxxxxx
Notary
Public
[Notarial
Seal]
Xxxxxxx
X. Xxxxxx
Commision
#1604560
Notary
Public-California
Orange
County
My
Comm.
Expires Sep 5, 0000
X-0
|
XXXXX
XX XXXXXXXX
|
) |
|
)
ss.:
|
|
|
COUNTY
OF XXXXXX
|
) |
On
the
19th day of December 2006, before me, a notary public in and for said State,
personally appeared Xxxxxx
X.
Xxxxxx, known to me to be a Assistant Vice President of
Xxxxx
Fargo Bank, N.A., one of the corporations that executed the within instrument,
and also known to me to be the person who executed it on behalf of such
corporation, and acknowledged to me that such corporation executed the within
instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal
the
day and year in this certificate first above written.
/s/
Xxxxxx X. Xxxxxxx
Notary
Public
[Notarial
Seal]
Xxxxxx
X.
Xxxxxxx
NOTARY
PUBLIC
Baltimore
City
Maryland
My
Commission Expires January 7 2009
S-4
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”).
|
Xxxxxxxxxx
Mortgage Loan Trust,
Series
2006-NC5
Pass-Through
Rate: Variable
Cut-off
Date: December 1, 2006
Date
of Pooling and Servicing Agreement: December 1, 2006
First
Distribution Date: January 25, 2007
No.
1
|
Aggregate
Certificate Principal Balance of the
Class A-1 Certificates as of the Closing Date:
[
_____________ ]
Denomination:
[ _____________ ]
Servicer:
New Century Mortgage Corporation
Trustee:
Xxxxx Fargo Bank, N.A.
Closing
Date: December 19, 2006
CUSIP:
[ ________ ] [ ] [ ][
]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.
A-1-1
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 one-
to
four-family, adjustable-rate and fixed-rate, interest-only, balloon and
fully-amortizing, first lien and second lien closed-end, subprime 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.
A-1-2
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.
Until
the
swap agreement terminates in [_________], this Certificate or any interest
therein may not be purchased by or transferred to 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” (within
the meaning of the Department of Labor regulation promulgated at 29 C.F.R.
§
2510.3-101, as modified by Seciton 3(42) of ERISA) of any
of the foregoing (a “Plan”), any
Person acting, directly or indirectly, on behalf of any such Plan or any Person
acquiring this Certificate with “plan assets” of a Plan,
unless
the beneficial owner of this Certificate or any interest therein represents
that
its acquisition and holding of this Certificate or any interest therein is
eligible for exemptive relief under one or more of the following exemptions:
Prohibited Transaction Class Exemption (“PTCE”)
96-23
(for transactions effected by “in-house asset managers”; XXXX 00-00 (for
transactions by insurance company general accounts); PTCE 91-38, (for
transactions by bank collective investment funds); XXXX 00-0 (for transactions
by insurance company pooled separate accounts); PTCE 84-14
(for transactions effected by “qualified professional asset managers”)
(collectively, the “Investor Exemptions”); and Section 408(b)(17) of ERISA (for
transactions between a Plan and a person or an entity that is a party in
interest to such Plan (other than a party in interest that is a fiduciary,
or
its affiliate, that has or exercises discretionary authority or control or
renders investment advice with respect to the assets of the Plan involved in
the
transaction) solely by reason of providing services to the Plan, but only if
the
Plan pays no more, or receives no less, than adequate consideration) (the
“Service Provider Exemption”).
A-1-3
After
the
termination of the swap agreement in [_________], each beneficial owner of
this
Certificate or any interest therein shall be deemed to have represented, by
virtue of its acquisition or holding of this Certificate or any interest
therein, that either (A) it is not a Plan, any Person acting, directly or
indirectly, on behalf of any such Plan or any Person acquiring this Certificate
with “plan assets” of a Plan, (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 this 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) it has acquired and is holding this Certificate
in reliance on the Service Provider Exemption or one or more of the Investor
Exemptions and it understands that there are certain conditions to the
availability of the Service Provider Exemption and the Investor
Exemptions.
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.
A-1-4
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.
A-1-5
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
December [___], 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
|
|||||||||||||
A-1-6
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
|
A-1-7
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.
X-0-0
XXXXXXX
X-0
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”).
|
Xxxxxxxxxx
Mortgage Loan Trust,
Series
2006-NC5
Pass-Through
Rate: Variable
Cut-off
Date: December 1, 2006
Date
of Pooling and Servicing Agreement: December 1, 2006
First
Distribution Date: January 25, 2007
No.
1
|
Aggregate
Certificate Principal Balance of the Class A-2 Certificates as of
the
Closing Date: [ _____________ ]
Denomination:
[ _____________ ]
Servicer:
New Century Mortgage Corporation
Trustee:
Xxxxx Fargo Bank, N.A.
Closing
Date: December 19, 2006
CUSIP:
[ ________ ] [ ] [ ]
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
A-2-1
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 one- to four-family, adjustable-rate and
fixed-rate, interest-only, balloon and fully-amortizing, first lien and second
lien closed-end, subprime 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.
A-2-2
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.
Until
the
swap agreement terminates in [_________], this Certificate or any interest
therein may not be purchased by or transferred to 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” (within
the meaning of the Department of Labor regulation promulgated at 29 C.F.R.
§
2510.3-101, as modified by Section 3(42) of ERISA) of any
of the foregoing (a “Plan”), any
Person acting, directly or indirectly, on behalf of any such Plan or any Person
acquiring this Certificate with “plan assets” of a Plan,
unless
the beneficial owner of this Certificate or any interest therein represents
that
its acquisition and holding of this Certificate or any interest therein is
eligible for exemptive relief under one or more of the following exemptions:
Prohibited Transaction Class Exemption (“PTCE”)
96-23
(for transactions effected by “in-house asset managers”; XXXX 00-00 (for
transactions by insurance company general accounts); PTCE 91-38, (for
transactions by bank collective investment funds); XXXX 00-0 (for transactions
by insurance company pooled separate accounts); PTCE 84-14
(for transactions effected by “qualified professional asset managers”)
(collectively, the “Investor Exemptions”); and Section 408(b)(17) of ERISA (for
transactions between a Plan and a person or an entity that is a party in
interest to such Plan (other than a party in interest that is a fiduciary,
or
its affiliate, that has or exercises discretionary authority or control or
renders investment advice with respect to the assets of the Plan involved in
the
transaction) solely by reason of providing services to the Plan, but only if
the
Plan pays no more, or receives no less, than adequate consideration) (the
“Service Provider Exemption”).
A-2-3
After
the
termination of the swap agreement in [_________], each beneficial owner of
this
Certificate or any interest therein shall be deemed to have represented, by
virtue of its acquisition or holding of this Certificate or any interest
therein, that either (A) it is not a Plan, any Person acting, directly or
indirectly, on behalf of any such Plan or any Person acquiring this Certificate
with “plan assets” of a Plan, (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 this 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) it has acquired and is holding this Certificate
in reliance on the Service Provider Exemption or one or more of the Investor
Exemptions and it understands that there are certain conditions to the
availability of the Service Provider Exemption and the Investor
Exemptions
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.
A-2-4
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.
A-2-5
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
December [___], 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
|
|||||||||||||
A-2-6
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
|
A-2-7
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.
X-0-0
XXXXXXX
X-0
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”).
|
Xxxxxxxxxx
Mortgage Loan Trust,
Series
2006-NC5
Pass-Through
Rate: Variable
Cut-off
Date: December 1, 2006
Date
of Pooling and Servicing Agreement: December 1, 2006
First
Distribution Date: January 25, 2007
No.
1
|
Aggregate
Certificate Principal Balance of the Class A-3 Certificates as of
the
Closing Date: [ _____________ ]
Denomination:
[ _____________ ]
Servicer:
New Century Mortgage Corporation
Trustee:
Xxxxx Fargo Bank, N.A.
Closing
Date: December 19, 2006
CUSIP:
[ ________ ] [ ] [ ]
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
A-3-1
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 one- to four-family, adjustable-rate and
fixed-rate, interest-only, balloon and fully-amortizing, first lien and second
lien closed-end, subprime 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.
A-3-2
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.
Until
the
swap agreement terminates in [_________], this Certificate or any interest
therein may not be purchased by or transferred to 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” (within
the meaning of the Department of Labor regulation promulgated at 29 C.F.R.
§
2510.3-101, as modified by Section 3(42) of ERISA) of any
of the foregoing (a “Plan”), any
Person acting, directly or indirectly, on behalf of any such Plan or any Person
acquiring this Certificate with “plan assets” of a Plan.
Each
beneficial owner of this Certificate or any interest therein shall be deemed
to
have represented, by virtue of its acquisition or holding of this Certificate
or
any interest therein, that it is not a Plan, any Person acting, directly or
indirectly, on behalf of any such Plan or any Person acquiring this Certificate
with “plan assets” of a Plan.
A-3-3
After
the
termination of the swap agreement in [_________], each beneficial owner of
this
Certificate or any interest therein shall be deemed to have represented, by
virtue of its acquisition or holding of this Certificate or any interest
therein, that either (A) it is not a Plan, any Person acting, directly or
indirectly, on behalf of any such Plan or any Person acquiring this Certificate
with “plan assets” of a Plan, (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 this 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, or 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.
A-3-4
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.
A-3-5
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
December [___], 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
|
|||||||||||||
A-3-6
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
|
A-3-7
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.
X-0-0
XXXXXXX
X-0
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”).
|
Xxxxxxxxxx
Mortgage Loan Trust,
Series
2006-NC5
Pass-Through
Rate: Variable
Cut-off
Date: December 1, 2006
Date
of Pooling and Servicing Agreement: December 1, 2006
First
Distribution Date: January 25, 2007
No.
1
|
Aggregate
Certificate Principal Balance of the Class A-4 Certificates as of
the
Closing Date: [ _____________ ]
Denomination:
[ _____________ ]
Servicer:
New Century Mortgage Corporation
Trustee:
Xxxxx Fargo Bank, N.A.
Closing
Date: December 19, 2006
CUSIP:
[ ________ ] [ ] [ ]
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
A-4-1
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 one- to four-family, adjustable-rate and
fixed-rate, interest-only, balloon and fully-amortizing, first lien and second
lien closed-end, subprime 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.
A-4-2
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.
Until
the
swap agreement terminates in [_________], this Certificate or any interest
therein may not be purchased by or transferred to 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” (within
the meaning of the Department of Labor regulation promulgated at 29 C.F.R.
§
2510.3-101, as modified by Section 3(42) of ERISA) of any
of the foregoing (a “Plan”), any
Person acting, directly or indirectly, on behalf of any such Plan or any Person
acquiring this Certificate with “plan assets” of a Plan.
Each
beneficial owner of this Certificate or any interest therein shall be deemed
to
have represented, by virtue of its acquisition or holding of this Certificate
or
any interest therein, that it is not a Plan, any Person acting, directly or
indirectly, on behalf of any such Plan or any Person acquiring this Certificate
with “plan assets” of a Plan.
A-4-3
After
the
termination of the swap agreement in [_________], each beneficial owner of
this
Certificate or any interest therein shall be deemed to have represented, by
virtue of its acquisition or holding of this Certificate or any interest
therein, that either (A) it is not a Plan, any Person acting, directly or
indirectly, on behalf of any such Plan or any Person acquiring this Certificate
with “plan assets” of a Plan, (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 this 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, or 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.
A-4-4
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.
A-4-5
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
December [___], 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
|
|||||||||||||
A-4-6
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
|
A-4-7
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.
X-0-0
XXXXXXX
X-0
FORM
OF
CLASS A-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”).
|
Xxxxxxxxxx
Mortgage Loan Trust,
Series
2006-NC5
Pass-Through
Rate: Variable
Cut-off
Date: December 1, 2006
Date
of Pooling and Servicing Agreement: December 1, 2006
First
Distribution Date: January 25, 2007
No.
1
|
Aggregate
Certificate Principal Balance of the Class A-5 Certificates as of
the
Closing Date: [ _____________ ]
Denomination:
[ _____________ ]
Servicer:
New Century Mortgage Corporation
Trustee:
Xxxxx Fargo Bank, N.A.
Closing
Date: December 19, 2006
CUSIP:
[ ________ ] [ ] [ ]
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
A-5-1
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 one- to four-family, adjustable-rate and
fixed-rate, interest-only, balloon and fully-amortizing, first lien and second
lien closed-end, subprime 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-5 Certificates as of the Closing
Date) in that certain beneficial ownership interest evidenced by all the Class
A-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 A-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.
A-5-2
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.
Until
the
swap agreement terminates in [_________], this Certificate or any interest
therein may not be purchased by or transferred to 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” (within
the meaning of the Department of Labor regulation promulgated at 29 C.F.R.
§
2510.3-101, as modified by Section 3(42) of ERISA) of any
of the foregoing (a “Plan”), any
Person acting, directly or indirectly, on behalf of any such Plan or any Person
acquiring this Certificate with “plan assets” of a Plan.
Each
beneficial owner of this Certificate or any interest therein shall be deemed
to
have represented, by virtue of its acquisition or holding of this Certificate
or
any interest therein, that it is not a Plan, any Person acting, directly or
indirectly, on behalf of any such Plan or any Person acquiring this Certificate
with “plan assets” of a Plan.
A-5-3
After
the
termination of the swap agreement in [_________], each beneficial owner of
this
Certificate or any interest therein shall be deemed to have represented, by
virtue of its acquisition or holding of this Certificate or any interest
therein, that either (A) it is not a Plan, any Person acting, directly or
indirectly, on behalf of any such Plan or any Person acquiring this Certificate
with “plan assets” of a Plan, (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 this 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, or 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.
A-5-4
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.
A-5-5
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
December [___], 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
|
|||||||||||||
A-5-6
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
|
A-5-7
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.
X-0-0
XXXXXXX
X-0
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.
|
Xxxxxxxxxx
Mortgage Loan Trust,
Series
2006-NC5
Pass-Through
Rate: Variable
Cut-off
Date: December 1, 2006
Date
of Pooling and Servicing Agreement: December 1, 2006
First
Distribution Date: January 25, 2007
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-1 Certificates as of
the
Closing Date: [ _____________ ]
Denomination:
[ _____________ ]
Servicer:
New Century Mortgage Corporation
Trustee:
Xxxxx Fargo Bank, N.A.
Closing
Date: December 19, 2006
CUSIP:
[ ________ ] [ ] [ ]
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
A-6-1
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 one- to four-family, adjustable-rate and
fixed-rate, interest-only, balloon and fully-amortizing, first lien and second
lien closed-end, subprime 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.
A-6-2
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.
Until
the
swap agreement terminates in [_________], this Certificate or any interest
therein may not be purchased by or transferred to 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” (within
the meaning of the Department of Labor regulation promulgated at 29 C.F.R.
§
2510.3-101, as modified by Section 3(42) of ERISA) of any
of the foregoing (a “Plan”), any
Person acting, directly or indirectly, on behalf of any such Plan or any Person
acquiring this Certificate with “plan assets” of a Plan.
Each
beneficial owner of this Certificate or any interest therein shall be deemed
to
have represented, by virtue of its acquisition or holding of this Certificate
or
any interest therein, that it is not a Plan, any Person acting, directly or
indirectly, on behalf of any such Plan or any Person acquiring this Certificate
with “plan assets” of a Plan.
A-6-3
After
the
termination of the swap agreement in [_________], each beneficial owner of
this
Certificate or any interest therein shall be deemed to have represented,
by
virtue of its acquisition or holding of this Certificate or any interest
therein, that either (A) it is not a Plan, any Person acting, directly or
indirectly, on behalf of any such Plan or any Person acquiring this Certificate
with “plan assets” of a Plan, (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 this 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, or 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.
A-6-4
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.
A-6-5
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
December [___], 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
|
|||||||||||||
A-6-6
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
|
A-6-7
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.
X-0-0
XXXXXXX
X-0
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.
|
Xxxxxxxxxx
Mortgage Loan Trust,
Series
2006-NC5
Pass-Through
Rate: Variable
Cut-off
Date: December 1, 2006
Date
of Pooling and Servicing Agreement: December 1, 2006
First
Distribution Date: January 25, 2007
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-2 Certificates as of
the
Closing Date: [ _____________ ]
Denomination:
[ _____________ ]
Servicer:
New Century Mortgage Corporation
Trustee:
Xxxxx Fargo Bank, N.A.
Closing
Date: December 19, 2006
CUSIP:
[ ________ ] [ ] [ ]
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
A-7-1
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 one- to four-family, adjustable-rate and
fixed-rate, interest-only, balloon and fully-amortizing, first lien and second
lien closed-end, subprime 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.
A-7-2
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.
Until
the
swap agreement terminates in [_________], this Certificate or any interest
therein may not be purchased by or transferred to 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” (within
the meaning of the Department of Labor regulation promulgated at 29 C.F.R.
§
2510.3-101, as modified by Section 3(42) of ERISA) of any
of the foregoing (a “Plan”), any
Person acting, directly or indirectly, on behalf of any such Plan or any Person
acquiring this Certificate with “plan assets” of a Plan.
Each
beneficial owner of this Certificate or any interest therein shall be deemed
to
have represented, by virtue of its acquisition or holding of this Certificate
or
any interest therein, that it is not a Plan, any Person acting, directly or
indirectly, on behalf of any such Plan or any Person acquiring this Certificate
with “plan assets” of a Plan.
A-7-3
After
the
termination of the swap agreement in [_________], each beneficial owner of
this
Certificate or any interest therein shall be deemed to have represented, by
virtue of its acquisition or holding of this Certificate or any interest
therein, that either (A) it is not a Plan, any Person acting, directly or
indirectly, on behalf of any such Plan or any Person acquiring this Certificate
with “plan assets” of a Plan, (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 this 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, or 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.
A-7-4
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.
A-7-5
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
December [___], 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
|
|||||||||||||
A-7-6
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
|
A-7-7
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.
X-0-0
XXXXXXX
X-0
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.
|
Xxxxxxxxxx
Mortgage Loan Trust,
Series
2006-NC5
Pass-Through
Rate: Variable
Cut-off
Date: December 1, 2006
Date
of Pooling and Servicing Agreement: December 1, 2006
First
Distribution Date: January 25, 2007
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-3 Certificates as of
the
Closing Date: [ _____________ ]
Denomination:
[ _____________ ]
Servicer:
New Century Mortgage Corporation
Trustee:
Xxxxx Fargo Bank, N.A.
Closing
Date: December 19, 2006
CUSIP:
[ ________ ] [ ] [ ]
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
A-8-1
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 one- to four-family, adjustable-rate and
fixed-rate, interest-only, balloon and fully-amortizing, first lien and second
lien closed-end, subprime 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.
A-8-2
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.
Until
the
swap agreement terminates in [_________], this Certificate or any interest
therein may not be purchased by or transferred to 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” (within
the meaning of the Department of Labor regulation promulgated at 29 C.F.R.
§
2510.3-101, as modified by Section 3(42) of ERISA) of any
of the foregoing (a “Plan”), any
Person acting, directly or indirectly, on behalf of any such Plan or any Person
acquiring this Certificate with “plan assets” of a Plan.
Each
beneficial owner of this Certificate or any interest therein shall be deemed
to
have represented, by virtue of its acquisition or holding of this Certificate
or
any interest therein, that it is not a Plan, any Person acting, directly or
indirectly, on behalf of any such Plan or any Person acquiring this Certificate
with “plan assets” of a Plan.
A-8-3
After
the
termination of the swap agreement in [_________], each beneficial owner of
this
Certificate or any interest therein shall be deemed to have represented, by
virtue of its acquisition or holding of this Certificate or any interest
therein, that either (A) it is not a Plan, any Person acting, directly or
indirectly, on behalf of any such Plan or any Person acquiring this Certificate
with “plan assets” of a Plan, (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 this 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, or 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.
A-8-4
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.
A-8-5
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
December [___], 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
|
|||||||||||||
A-8-6
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
|
A-8-7
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.
X-0-0
XXXXXXX
X-0
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.
|
Xxxxxxxxxx
Mortgage Loan Trust,
Series
2006-NC5
Pass-Through
Rate: Variable
Cut-off
Date: December 1, 2006
Date
of Pooling and Servicing Agreement: December 1, 2006
First
Distribution Date: January 25, 2007
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-4 Certificates as of
the
Closing Date: [ _____________ ]
Denomination:
[ _____________ ]
Servicer:
New Century Mortgage Corporation
Trustee:
Xxxxx Fargo Bank, N.A.
Closing
Date: December 19, 2006
CUSIP:
[ ________ ] [ ] [ ]
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
A-9-1
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 one- to four-family, adjustable-rate and
fixed-rate, interest-only, balloon and fully-amortizing, first lien and second
lien closed-end, subprime 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.
A-9-2
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.
Until
the
swap agreement terminates in [_________], this Certificate or any interest
therein may not be purchased by or transferred to 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” (within
the meaning of the Department of Labor regulation promulgated at 29 C.F.R.
§
2510.3-101, as modified by Section 3(42) of ERISA) of any
of the foregoing (a “Plan”), any
Person acting, directly or indirectly, on behalf of any such Plan or any Person
acquiring this Certificate with “plan assets” of a Plan.
Each
beneficial owner of this Certificate or any interest therein shall be deemed
to
have represented, by virtue of its acquisition or holding of this Certificate
or
any interest therein, that it is not a Plan, any Person acting, directly or
indirectly, on behalf of any such Plan or any Person acquiring this Certificate
with “plan assets” of a Plan.
A-9-3
After
the
termination of the swap agreement in [_________], each beneficial owner of
this
Certificate or any interest therein shall be deemed to have represented, by
virtue of its acquisition or holding of this Certificate or any interest
therein, that either (A) it is not a Plan, any Person acting, directly or
indirectly, on behalf of any such Plan or any Person acquiring this Certificate
with “plan assets” of a Plan, (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 this 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, or 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.
A-9-4
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.
A-9-5
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
December [___], 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
|
|||||||||||||
A-9-6
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
|
A-9-7
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.
A-9-8
EXHIBIT
A-10
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.
|
Xxxxxxxxxx
Mortgage Loan Trust,
Series
2006-NC5
Pass-Through
Rate: Variable
Cut-off
Date: December 1, 2006
Date
of Pooling and Servicing Agreement: December 1, 2006
First
Distribution Date: January 25, 2007
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-5 Certificates as of
the
Closing Date: [ _____________ ]
Denomination:
[ _____________ ]
Servicer:
New Century Mortgage Corporation
Trustee:
Xxxxx Fargo Bank, N.A.
Closing
Date: December 19, 2006
CUSIP:
[ ________ ] [ ] [ ]
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
A-10-1
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 one- to four-family, adjustable-rate and
fixed-rate, interest-only, balloon and fully-amortizing, first lien and second
lien closed-end, subprime 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.
A-10-2
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.
Until
the
swap agreement terminates in [_________], this Certificate or any interest
therein may not be purchased by or transferred to 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” (within
the meaning of the Department of Labor regulation promulgated at 29 C.F.R.
§
2510.3-101, as modified by Section 3(42) of ERISA) of any
of the foregoing (a “Plan”), any
Person acting, directly or indirectly, on behalf of any such Plan or any Person
acquiring this Certificate with “plan assets” of a Plan.
Each
beneficial owner of this Certificate or any interest therein shall be deemed
to
have represented, by virtue of its acquisition or holding of this Certificate
or
any interest therein, that it is not a Plan, any Person acting, directly or
indirectly, on behalf of any such Plan or any Person acquiring this Certificate
with “plan assets” of a Plan.
A-10-3
After
the
termination of the swap agreement in [_________], each beneficial owner of
this
Certificate or any interest therein shall be deemed to have represented, by
virtue of its acquisition or holding of this Certificate or any interest
therein, that either (A) it is not a Plan, any Person acting, directly or
indirectly, on behalf of any such Plan or any Person acquiring this Certificate
with “plan assets” of a Plan, (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 this 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, or 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.
A-10-4
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.
A-10-5
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
December [___], 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
|
|||||||||||||
A-10-6
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
|
A-10-7
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.
A-10-8
EXHIBIT
A-11
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.
|
Xxxxxxxxxx
Mortgage Loan Trust,
Series
2006-NC5
Pass-Through
Rate: Variable
Cut-off
Date: December 1, 2006
Date
of Pooling and Servicing Agreement: December 1, 2006
First
Distribution Date: January 25, 2007
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-6 Certificates as of
the
Closing Date: [ _____________ ]
Denomination:
[ _____________ ]
Servicer:
New Century Mortgage Corporation
Trustee:
Xxxxx Fargo Bank, N.A.
Closing
Date: December 19, 2006
CUSIP:
[ ________ ] [ ] [ ]
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
A-11-1
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 one- to four-family, adjustable-rate and
fixed-rate, interest-only, balloon and fully-amortizing, first lien and second
lien closed-end, subprime 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.
A-11-2
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.
Until
the
swap agreement terminates in [_________], this Certificate or any interest
therein may not be purchased by or transferred to 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” (within
the meaning of the Department of Labor regulation promulgated at 29 C.F.R.
§
2510.3-101, as modified by Section 3(42) of ERISA) of any
of the foregoing (a “Plan”), any
Person acting, directly or indirectly, on behalf of any such Plan or any Person
acquiring this Certificate with “plan assets” of a Plan.
Each
beneficial owner of this Certificate or any interest therein shall be deemed
to
have represented, by virtue of its acquisition or holding of this Certificate
or
any interest therein, that it is not a Plan, any Person acting, directly or
indirectly, on behalf of any such Plan or any Person acquiring this Certificate
with “plan assets” of a Plan.
A-11-3
After
the
termination of the swap agreement in [_________], each beneficial owner of
this
Certificate or any interest therein shall be deemed to have represented, by
virtue of its acquisition or holding of this Certificate or any interest
therein, that either (A) it is not a Plan, any Person acting, directly or
indirectly, on behalf of any such Plan or any Person acquiring this Certificate
with “plan assets” of a Plan, (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 this 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, or 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.
A-11-4
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.
A-11-5
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
December [___], 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
|
|||||||||||||
A-11-6
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
|
A-11-7
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.
A-11-8
EXHIBIT
A-12
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.
|
Xxxxxxxxxx
Mortgage Loan Trust,
Series
2006-NC5
Pass-Through
Rate: Variable
Cut-off
Date: December 1, 2006
Date
of Pooling and Servicing Agreement: December 1, 2006
First
Distribution Date: January 25, 2007
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-7 Certificates as of
the
Closing Date: [ _____________ ]
Denomination:
[ _____________ ]
Servicer:
New Century Mortgage Corporation
Trustee:
Xxxxx Fargo Bank, N.A.
Closing
Date: December 19, 2006
CUSIP:
[ ________ ] [ ] [ ]
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
A-12-1
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 one- to four-family, adjustable-rate and
fixed-rate, interest-only, balloon and fully-amortizing, first lien and second
lien closed-end, subprime 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.
A-12-2
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.
Until
the
swap agreement terminates in [_________], this Certificate or any interest
therein may not be purchased by or transferred to 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” (within
the meaning of the Department of Labor regulation promulgated at 29 C.F.R.
§
2510.3-101, as modified by Section 3(42) of ERISA) of any
of the foregoing (a “Plan”), any
Person acting, directly or indirectly, on behalf of any such Plan or any Person
acquiring this Certificate with “plan assets” of a Plan.
Each
beneficial owner of this Certificate or any interest therein shall be deemed
to
have represented, by virtue of its acquisition or holding of this Certificate
or
any interest therein, that it is not a Plan, any Person acting, directly or
indirectly, on behalf of any such Plan or any Person acquiring this Certificate
with “plan assets” of a Plan.
A-12-3
After
the
termination of the swap agreement in [_________], each beneficial owner of
this
Certificate or any interest therein shall be deemed to have represented, by
virtue of its acquisition or holding of this Certificate or any interest
therein, that either (A) it is not a Plan, any Person acting, directly or
indirectly, on behalf of any such Plan or any Person acquiring this Certificate
with “plan assets” of a Plan, (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 this 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, or 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.
A-12-4
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.
A-12-5
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
December [___], 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
|
|||||||||||||
A-12-6
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
|
A-12-7
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.
A-12-8
EXHIBIT
A-13
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.
A-13-1
|
Xxxxxxxxxx
Mortgage Loan Trust,
Series
2006-NC5
Pass-Through
Rate: Variable
Cut-off
Date: December 1, 2006
Date
of Pooling and Servicing Agreement: December 1, 2006
First
Distribution Date: January 25, 2007
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-8 Certificates as of
the
Closing Date: [ _____________ ]
Denomination:
[ _____________ ]
Servicer:
New Century Mortgage Corporation
Trustee:
Xxxxx Fargo Bank, N.A.
Closing
Date: December 19, 2006
CUSIP:
[ ________ ] [ ] [ ]
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
A-13-2
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 one- to four-family, adjustable-rate and
fixed-rate, interest-only, balloon and fully-amortizing, first lien and second
lien closed-end, subprime 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.
A-13-3
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.
Until
the
swap agreement terminates in [_________], this Certificate or any interest
therein may not be purchased by or transferred to 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” (within
the meaning of the Department of Labor regulation promulgated at 29 C.F.R.
§
2510.3-101, as modified by Section 3(42) of ERISA) of any
of the foregoing (a “Plan”), any
Person acting, directly or indirectly, on behalf of any such Plan or any Person
acquiring this Certificate with “plan assets” of a Plan.
Each
beneficial owner of this Certificate or any interest therein shall be deemed
to
have represented, by virtue of its acquisition or holding of this Certificate
or
any interest therein, that it is not a Plan, any Person acting, directly or
indirectly, on behalf of any such Plan or any Person acquiring this Certificate
with “plan assets” of a Plan.
A-13-4
After
the
termination of the swap agreement in [_________], each beneficial owner of
this
Certificate or any interest therein shall be deemed to have represented, by
virtue of its acquisition or holding of this Certificate or any interest
therein, that either (A) it is not a Plan, any Person acting, directly or
indirectly, on behalf of any such Plan or any Person acquiring this Certificate
with “plan assets” of a Plan, (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 this 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, or 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.
A-13-5
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.
A-13-6
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
December [___], 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
|
|||||||||||||
A-13-7
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
|
A-13-8
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.
A-13-9
EXHIBIT
A-14
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.
A-14-1
|
Xxxxxxxxxx
Mortgage Loan Trust,
Series
2006-NC5
Pass-Through
Rate: Variable
Cut-off
Date: December 1, 2006
Date
of Pooling and Servicing Agreement: December 1, 2006
First
Distribution Date: January 25, 2007
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-9 Certificates as of
the
Closing Date: [ _____________ ]
Denomination:
[ _____________ ]
Servicer:
New Century Mortgage Corporation
Trustee:
Xxxxx Fargo Bank, N.A.
Closing
Date: December 19, 2006
CUSIP:
[ ________ ] [ ] [ ]
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
A-14-2
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 one- to four-family, adjustable-rate and
fixed-rate, interest-only, balloon and fully-amortizing, first lien and second
lien closed-end, subprime 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.
A-14-3
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.
Until
the
swap agreement terminates in [_________], this Certificate or any interest
therein may not be purchased by or transferred to 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” (within
the meaning of the Department of Labor regulation promulgated at 29 C.F.R.
§
2510.3-101, as modified by Section 3(42) of ERISA) of any
of the foregoing (a “Plan”), any
Person acting, directly or indirectly, on behalf of any such Plan or any Person
acquiring this Certificate with “plan assets” of a Plan.
Each
beneficial owner of this Certificate or any interest therein shall be deemed
to
have represented, by virtue of its acquisition or holding of this Certificate
or
any interest therein, that it is not a Plan, any Person acting, directly or
indirectly, on behalf of any such Plan or any Person acquiring this Certificate
with “plan assets” of a Plan.
A-14-4
After
the
termination of the swap agreement in [_________], each beneficial owner of
this
Certificate or any interest therein shall be deemed to have represented, by
virtue of its acquisition or holding of this Certificate or any interest
therein, that either (A) it is not a Plan, any Person acting, directly or
indirectly, on behalf of any such Plan or any Person acquiring this Certificate
with “plan assets” of a Plan, (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 this 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, or 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.
A-14-5
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.
A-14-6
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
December [___], 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
|
|||||||||||||
A-14-7
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
|
A-14-8
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.
A-14-9
EXHIBIT
A-15
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.
A-15-1
|
Xxxxxxxxxx
Mortgage Loan Trust,
Series
2006-NC5
Pass-Through
Rate: Variable
Cut-off
Date: December 1, 2006
Date
of Pooling and Servicing Agreement: December 1, 2006
First
Distribution Date: January 25, 2007
No.
1
|
Aggregate
Certificate Principal Balance of the Class M-10 Certificates as of
the
Closing Date: [ _____________ ]
Denomination:
[ _____________ ]
Servicer:
New Century Mortgage Corporation
Trustee:
Xxxxx Fargo Bank, N.A.
Closing
Date: December 19, 2006
CUSIP:
[ ________ ] [ ] [ ]
|
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
MADE MONTHLY AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE
PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE
AS
THE DENOMINATION OF THIS CERTIFICATE.
A-15-2
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 one- to four-family, adjustable-rate and
fixed-rate, interest-only, balloon and fully-amortizing, first lien and second
lien closed-end, subprime 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.
A-15-3
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.
Until
the
swap agreement terminates in [_________], this Certificate or any interest
therein may not be purchased by or transferred to 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” (within
the meaning of the Department of Labor regulation promulgated at 29 C.F.R.
§
2510.3-101, as modified by Section 3(42) of ERISA) of any
of the foregoing (a “Plan”), any
Person acting, directly or indirectly, on behalf of any such Plan or any Person
acquiring this Certificate with “plan assets” of a Plan.
Each
beneficial owner of this Certificate or any interest therein shall be deemed
to
have represented, by virtue of its acquisition or holding of this Certificate
or
any interest therein, that it is not a Plan, any Person acting, directly or
indirectly, on behalf of any such Plan or any Person acquiring this Certificate
with “plan assets” of a Plan.
A-15-4
After
the
termination of the swap agreement in [_________], each beneficial owner of
this
Certificate or any interest therein shall be deemed to have represented, by
virtue of its acquisition or holding of this Certificate or any interest
therein, that either (A) it is not a Plan, any Person acting, directly or
indirectly, on behalf of any such Plan or any Person acquiring this Certificate
with “plan assets” of a Plan, (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 this 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, or 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.
A-15-5
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.
A-15-6
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
December [___], 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
|
|||||||||||||
A-15-7
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
|
A-15-8
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.
A-15-9
EXHIBIT
A-16
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.
|
Xxxxxxxxxx
Mortgage Loan Trust,
Series:
2006-NC5
Pass-Through
Rate: Variable
Cut-off
Date: December 1, 2006
Date
of Pooling and Servicing Agreement: December 1, 2006
First
Distribution Date: January 25, 2007
No.
1
Aggregate
Notional Amount of the Class
CE
Certificates as of the Closing Date:
[
_____________ ]
Notional
Amount: [ _____________ ]
|
Aggregate
Certificate Principal Balance of the Class CE Certificates as of
the
Closing Date: [ _____________ ]
Denomination:
[ _____________ ]
Servicer:
New Century Mortgage Corporation
Trustee:
Xxxxx Fargo Bank, N.A.
Closing
Date: December 19, 2006
|
A-16-1
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.
A-16-2
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 one- to four-family, adjustable-rate and
fixed-rate, interest-only, balloon and fully-amortizing, first lien and second
lien closed-end, subprime 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 December [___], 2006, relating to the Xxxxxxxxxx XXX Trust 2006-NC5 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.
A-16-3
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.
A-16-4
No
purchase or transfer of this Certificate or any interest therein shall be made
to 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” (within
the meaning of the Department of Labor regulation promulgated at 29 C.F.R.
§
2510.3-101, as modified by Section 3(42) of ERISA) of
any of the foregoing (a “Plan”), any
Person acting, directly or indirectly, on behalf of any such Plan or any Person
acquiring this Certificate with “plan assets” of a Plan, as certified by such
beneficial owner in the form of Exhibit
G
to the
Agreement, unless the beneficial owner provides
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 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.
A-16-5
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.
A-16-6
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
December [___], 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
|
|||||||||||||
A-16-7
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
|
A-16-8
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.
A-16-9
EXHIBIT
A-17
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.
|
Xxxxxxxxxx
Mortgage Loan Trust,
Series:
2006-NC5
Cut-off
Date and date of Pooling and Servicing Agreement: December 1,
2006
First
Distribution Date: January 25, 2007
No.
1
|
Aggregate
Certificate Principal Balance of the Class P Certificates as of the
Closing Date: [ _____________ ]
Denomination:
[ _____________ ]
Servicer:
New Century Mortgage Corporation
Trustee:
Xxxxx Fargo Bank, N.A.
Closing
Date: December 19, 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.
A-17-1
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 one- to four-family, adjustable-rate and
fixed-rate, interest-only, balloon and fully-amortizing, first lien and second
lien closed-end, subprime 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 December [___], 2006, relating to the Xxxxxxxxxx XXX Trust 2006-NC5 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.
A-17-2
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.
A-17-3
No
purchase or transfer of this Certificate or any interest therein shall be made
to 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” (within
the meaning of the Department of Labor regulation promulgated at 29 C.F.R.
§
2510.3-101, as modified by Section 3(42) of ERISA) of
any of the foregoing (a “Plan”), any
Person acting, directly or indirectly, on behalf of any such Plan or any Person
acquiring this Certificate with “plan assets” of a Plan, as certified by such
beneficial owner in the form of Exhibit
G
to the
Agreement, unless the beneficial owner provides
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 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.
A-17-4
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.
A-17-5
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
December [___], 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
|
|||||||||||||
A-17-6
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
|
A-17-7
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.
A-17-8
EXHIBIT
A-18
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.
A-18-1
|
Xxxxxxxxxx
Mortgage Loan Trust,
Series
2006-NC5
Cut-off
Date and date of Pooling and Servicing Agreement: December 1,
2006
First
Distribution Date: January 25, 2007
No.1
|
Aggregate
Percentage Interest of the Class R Certificates as of the Closing
Date:
100.00%
Servicer:
New Century Mortgage Corporation
Trustee:
Xxxxx Fargo Bank, N.A.
Closing
Date: December 19, 2006
|
A-18-2
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 one- to four-family, adjustable-rate and
fixed-rate, interest-only, balloon and fully-amortizing, first lien and second
lien closed-end, subprime 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 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.
A-18-3
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.
A-18-4
No
purchase or transfer of this Certificate or any interest therein shall be
made
to 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” (within
the meaning of the Department of Labor regulation promulgated at 29 C.F.R.
§
2510.3-101, as modified by Section 3(42) of ERISA) of
any of
the foregoing (a “Plan”), any
Person acting, directly or indirectly, on behalf of any such Plan or any
Person
acquiring this Certificate with “plan assets” of a Plan, as certified by such
beneficial owner in the form of Exhibit
G
to the
Agreement, unless the beneficial owner provides
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 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 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 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.
A-18-5
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.
A-18-6
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
December [___], 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
|
|||||||||||||
A-18-7
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
|
A-18-8
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.
A-18-9
EXHIBIT
A-19
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.
A-19-1
|
Xxxxxxxxxx
Mortgage Loan Trust,
Series
2006-NC5
Cut-off
Date and date of Pooling and Servicing Agreement: December 1,
2006
First
Distribution Date: January 25, 2007
No.1
|
Aggregate
Percentage Interest of the Class R Certificates as of the Closing
Date:
100.00%
Servicer:
New Century Mortgage Corporation
Trustee:
Xxxxx Fargo Bank, N.A.
Closing
Date: December 19, 2006
|
A-19-2
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 one- to four-family, adjustable-rate and
fixed-rate, interest-only, balloon and fully-amortizing, first lien and second
lien closed-end, subprime 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 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.
A-19-3
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.
A-19-4
No
purchase or transfer of this Certificate or any interest therein shall be made
to 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” (within
the meaning of the Department of Labor regulation promulgated at 29 C.F.R.
§
2510.3-101, as modified by Section 3(42) of ERISA) of
any of the foregoing (a “Plan”), any
Person acting, directly or indirectly, on behalf of any such Plan or any Person
acquiring this Certificate with “plan assets” of a Plan, as certified by such
beneficial owner in the form of Exhibit
G
to the
Agreement, unless the beneficial owner provides
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 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 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 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.
A-19-5
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.
A-19-6
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
December [___], 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
|
|||||||||||||
A-19-7
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
|
A-19-8
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.
A-19-9
EXHIBIT
B
[Reserved]
B-1
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 December 1, 2006, among Xxxxx
Fargo
Bank, N.A., as Trustee, New Century Mortgage Corporation, 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.
C-1-1
XXXXX
FARGO BANK, N.A., Trustee
By:
___________________________
Name:
Title:
C-1-2
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 December 1, 2006, among Xxxxx
Fargo
Bank, N.A., as Trustee, New Century Mortgage Corporation, 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.
C-2-1
XXXXX
FARGO BANK, N.A., Trustee
By:
___________________________
Name:
Title:
C-2-2
EXHIBIT
D
FORM
OF
MORTGAGE LOAN PURCHASE AGREEMENT
[To
be
attached]
D-1
EXHIBIT
E
REQUEST
FOR RELEASE
(for
Trustee/Custodian)
|
Loan
Information
|
|||
|
Name
of Mortgagor:
|
|||
|
Master
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-NC5 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-NC5 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 December 1, 2006, among the Trustee, the
Depositor and the Servicer (the “Pooling and Servicing Agreement”).
E-1
( )
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 Custodial Account and except as expressly
provided in the Agreement.
E-2
(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:
|
NEW
CENTURY MORTGAGE CORPORATION
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
E-3
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-NC5
|
Re:
|
Xxxxxxxxxx
Mortgage Loan Trust, Series 2006-NC5 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 December 1, 2006, among
Stanwich Asset Acceptance Company, L.L.C. as Depositor, New Century Mortgage
Corporation 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.
F-1-1
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:
|
||
F-1-2
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-NC5
|
Re:
|
Xxxxxxxxxx
Mortgage Loan Trust, Series 2006-NC5 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
December 1, 2006, among Stanwich Asset Acceptance Company, L.L.C. as Depositor,
New Century Mortgage Corporation as Servicer and Xxxxx Fargo Bank, N.A. as
Trustee, pursuant to which the Certificates were issued.
|
[TRANSFEREE]
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
F-1-3
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.
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.
F-1-4
___
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.
F-1-5
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:
|
||
F-1-6
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.
F-1-7
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
|
||
F-1-8
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.
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Name
of Purchaser
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By:
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Name:
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Title:
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||
Date
of
this certificate:
Date
of
information provided in paragraph 3:
F-1-9
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-NC5 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” (within the meaning of the Department of Labor regulation
promulgated at 29 C. F. R. § 2510.3-101,
as modified by Section 3(42) of ERISA)
of a Plan, 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.
F-2-1
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.
F-2-2
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.
F-2-3
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__.
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[OWNER]
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By:
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Name:
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Title:
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[Vice]
President
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||||
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ATTEST:
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|||||
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By:
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|||||
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Name:
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Title:
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[Assistant]
Secretary
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||||
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___.
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Notary
Public
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County
of __________________
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|
State
of ___________________
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My
Commission expires:
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F-2-4
FORM
OF TRANSFEROR AFFIDAVIT
|
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 ______________, 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.
F-2-5
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__.
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[OWNER]
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|||||
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By:
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|||||
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Name:
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|||||
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Title:
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[Vice]
President
|
||||
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ATTEST:
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|||||
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By:
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|||||
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Name:
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|||||
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Title:
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[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___.
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Notary
Public
|
|
|
County
of __________________
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|
|
State
of ___________________
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My
Commission expires:
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F-2-6
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-NC5
|
Re:
|
Xxxxxxxxxx
Mortgage Loan Trust, Series 2006-NC5 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-NC5 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 December
1, 2006, among Stanwich Asset Acceptance Company, L.L.C. as depositor (the
“Depositor”), New Century Mortgage Corporation 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” (within the meaning of the Department of
Labor regulation promulgated at 29 C.F.R. § 2510.3-101,
as modified by Section 3(42) of ERISA)
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.
G-1
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Very
truly yours,
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By:
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Name:
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Title:
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G-2
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.
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The
Seller’s address is:
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|
2.
|
The
Seller previously delivered to the Purchaser a signed Initial
Certification with respect to such Mortgage and/or Assignment of
Mortgage;
|
|
|
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 __________ __, _____;
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|
|
4.
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Such
Mortgage Note and/or Assignment of Mortgage is not outstanding pursuant
to
a request for release of Documents;
|
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|
5.
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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;
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7.
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The
Seller was the Seller of the Original at the time of the loss;
and
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8.
|
Deponent
agrees that, if said Original should ever come into Seller’s possession,
custody or power, Seller will immediately and without consideration
surrender the Original to the Purchaser.
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9.
|
Attached
hereto is a true and correct copy of (i) the Note, endorsed in blank
by
the Mortgagee and (ii) the Mortgage or Deed of Trust (strike one)
which
secures the Note, which Mortgage or Deed of Trust is recorded in
the
county where the property is
located.
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|
H-1
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10.
|
Deponent
hereby agrees that the Seller (a) shall indemnify and hold harmless
the
Purchaser, its successors and assigns, against any loss, liability
or
damage, including reasonable attorney’s fees, resulting from the
unavailability of any Notes, including but not limited to any loss,
liability or damage arising from (i) any false statement contained
in this
Affidavit, (ii) any claim of any party that 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.
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11.
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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.
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Executed
this ____ day, of ___________ ______.
|
SELLER
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By:
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||
|
Name:
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||
|
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.
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Signature:
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[Seal]
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H-2
EXHIBIT
I-1
FORM
OF
ANNUAL CERTIFICATION
|
Re:
|
The
Pooling and Servicing Agreement dated December 1, 2006 (the “Agreement”)
by and among Stanwich Asset Acceptance Company, L.L.C. as depositor
(the
“Depositor”), New Century Mortgage Corporation, as servicer (the
“Servicer”) and Xxxxx Fargo Bank, N.A. as trustee (the
“Trustee”);
|
I,
________________________________, the _______________________ of New Century
Mortgage Corporation, 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
I-1-1
(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: _________________________
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NEW
CENTURY MORTGAGE CORPORATION
|
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By:
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||
|
Name:
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||
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Title:
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|
Date:
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||
I-1-2
EXHIBIT
I-2
FORM
OF
CERTIFICATION TO BE
PROVIDED
TO SERVICER BY THE TRUSTEE
|
Re:
|
Xxxxxxxxxx
Mortgage Loan Trust, Series 2006-NC5 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 New Century Mortgage Corporation (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
December 1, 2006 (the “Agreement”) by and among Stanwich Asset Acceptance
Company, L.L.C. as depositor (the “Depositor”), New Century Mortgage
Corporation, as servicer (the “Servicer”) and Xxxxx Fargo Bank, N.A. as trustee
(the “Trustee”);
2. Based
on
my knowledge, the information in the 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
|
||
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By:
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||
|
Name:
|
||
|
Title:
|
||
|
Date:
|
||
I-2-1
EXHIBIT
J
FORM
OF
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by [New Century Mortgage Corporation.
(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.
|
Servicer
|
|
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
|
J-1
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
|
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
|
J-2
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
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
|
|
[NEW
CENTURY MORTGAGE
CORPORATION,
as Servicer/ XXXXX FARGO BANK, N.A., as Trustee]
|
|
|
Date:_________________
|
By:________________________
Name:
Title:
|
J-3
EXHIBIT
K-1
FORM
OF
SWAP AGREEMENT
(Available
Upon Request)
K-1
EXHIBIT
K-2
SCHEDULE
OF SWAP NOTIONAL BALANCE
K-2
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:
L-1
Schedule
1
MORTGAGE
LOAN SCHEDULE
[FILED
BY
PAPER]
Schedule
1-1
Schedule
2
SCHEDULE
OF PREPAYMENT CHARGES
(Available
Upon Request)
Schedule
2-1
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.
Schedule
3-1
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.
Schedule
3-2
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
3-3
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 ($)
|
11
|
Schedule
4-1
|
SERV_FEE_RATE
|
The
Servicer's fee rate for a loan as reported by the Servicer.
|
4
|
Max
length of 6
|
6
|
|
CR_LOSS_AMT
|
The
amount of loss that is classified as a credit.
|
2
|
No
commas(,) or dollar signs ($)
|
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
|
Schedule
4-2
