FINANCIAL ASSET SECURITIES CORP., Depositor WELLS FARGO BANK, N.A. Servicer (Effective July 1, 2006) and DEUTSCHE BANK NATIONAL TRUST COMPANY, Trustee POOLING AND SERVICING AGREEMENT Dated as of April 1, 2006 Fremont Home Loan Trust 2006-1...
FINANCIAL
ASSET SECURITIES CORP.,
Depositor
XXXXX
FARGO BANK, N.A.
Servicer
(Effective
July 1, 2006)
and
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
Trustee
Dated
as
of April 1, 2006
___________________________
Asset-Backed
Certificates, Series 2006-1
TABLE
OF CONTENTS
|
ARTICLE
I
DEFINITIONS
|
|
|
SECTION
1.01
|
Defined
Terms.
|
|
SECTION
1.02
|
Accounting.
|
|
SECTION
1.03
|
Allocation
of Certain Interest Shortfalls.
|
|
SECTION
1.04
|
Rights
of the NIMS Insurer.
|
|
ARTICLE
II
CONVEYANCE
OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES
|
|
|
SECTION
2.01
|
Conveyance
of Mortgage Loans.
|
|
SECTION
2.02
|
Acceptance
by Trustee.
|
|
SECTION
2.03
|
Repurchase
or Substitution of Mortgage Loans by the Originator or the
Seller.
|
|
SECTION
2.04
|
Intentionally
Omitted.
|
|
SECTION
2.05
|
Representations,
Warranties and Covenants of the Servicer.
|
|
SECTION
2.06
|
Representations
and Warranties of the Depositor.
|
|
SECTION
2.07
|
Issuance
of Certificates.
|
|
SECTION
2.08
|
[Reserved].
|
|
SECTION
2.09
|
Acceptance
of REMIC 1, REMIC 2, REMIC 3, REMIC 4, REMIC 5 and REMIC 6 by the
Trustee;
Conveyance of REMIC 1 Regular Interests, Class C Interest and Class
P
Interest; Issuance of Certificates.
|
|
ARTICLE
III
ADMINISTRATION
AND SERVICING OF THE MORTGAGE LOANS
|
|
|
SECTION
3.01
|
Servicer
to Act as Servicer.
|
|
SECTION
3.02
|
Sub-Servicing
Agreements Between Servicer and Sub-Servicers;
Subcontractors.
|
|
SECTION
3.03
|
Successor
Sub-Servicers.
|
|
SECTION
3.04
|
Liability
of the Servicer.
|
|
SECTION
3.05
|
No
Contractual Relationship Between Sub-Servicers and the Trustee or
Certificateholders.
|
|
SECTION
3.06
|
Assumption
or Termination of Sub-Servicing Agreements.
|
|
SECTION
3.07
|
Collection
of Certain Mortgage Loan Payments.
|
|
SECTION
3.08
|
Sub-Servicing
Accounts.
|
|
SECTION
3.09
|
Collection
of Taxes, Assessments and Similar Items; Servicing
Accounts.
|
|
SECTION
3.10
|
Collection
Account.
|
|
SECTION
3.11
|
Withdrawals
from the Collection Account.
|
|
SECTION
3.12
|
Investment
of Funds in the Collection Account.
|
|
SECTION
3.13
|
[Reserved].
|
|
SECTION
3.14
|
Maintenance
of Hazard Insurance and Errors and Omissions and Fidelity
Coverage.
|
|
SECTION
3.15
|
Enforcement
of Due-On-Sale Clauses; Assumption Agreements.
|
|
SECTION
3.16
|
Realization
Upon Defaulted Mortgage Loans.
|
|
SECTION
3.17
|
Trustee
to Cooperate; Release of Mortgage Files.
|
|
SECTION
3.18
|
Servicing
Compensation.
|
|
SECTION
3.19
|
Reports;
Collection Account Statements.
|
|
SECTION
3.20
|
Statement
as to Compliance.
|
|
SECTION
3.21
|
Assessments
of Compliance and Attestation Reports.
|
|
SECTION
3.22
|
Remedies
Regarding Statements as to Compliance, Assessments of Compliance
and
Attestation Reports.
|
|
SECTION
3.23
|
Access
to Certain Documentation.
|
|
SECTION
3.24
|
Title,
Management and Disposition of REO Property.
|
|
SECTION
3.25
|
Obligations
of the Servicer in Respect of Prepayment Interest
Shortfalls.
|
|
SECTION
3.26
|
Obligations
of the Servicer in Respect of Monthly Payments.
|
|
SECTION
3.27
|
Net
WAC Rate Carryover Reserve Account.
|
|
SECTION
3.28
|
Advance
Facility
|
|
ARTICLE
IV
FLOW
OF FUNDS
|
|
|
SECTION
4.01
|
Distributions.
|
|
SECTION
4.02
|
[Reserved].
|
|
SECTION
4.03
|
Statements.
|
|
SECTION
4.04
|
Remittance
Reports; Advances.
|
|
SECTION
4.05
|
Swap
Account.
|
|
SECTION
4.06
|
Tax
Treatment of Swap Payments and Swap Termination
Payments.
|
|
SECTION
4.07
|
Commission
Reporting.
|
|
SECTION
4.08
|
[Reserved].
|
|
SECTION
4.09
|
Distributions
on the REMIC Regular Interests.
|
|
SECTION
4.10
|
Allocation
of Realized Losses.
|
|
ARTICLE
V
THE
CERTIFICATES
|
|
|
SECTION
5.01
|
The
Certificates.
|
|
SECTION
5.02
|
Registration
of Transfer and Exchange of Certificates.
|
|
SECTION
5.03
|
Mutilated,
Destroyed, Lost or Stolen Certificates.
|
|
SECTION
5.04
|
Persons
Deemed Owners.
|
|
SECTION
5.05
|
Appointment
of Paying Agent.
|
|
ARTICLE
VI
THE
SERVICER, THE DEPOSITOR AND THE CREDIT RISK MANAGER
|
|
|
SECTION
6.01
|
Liability
of the Servicer and the Depositor.
|
|
SECTION
6.02
|
Merger
or Consolidation of, or Assumption of the Obligations of, the Servicer
or
the Depositor.
|
|
SECTION
6.03
|
Limitation
on Liability of the Servicer and Others.
|
|
SECTION
6.04
|
Servicer
Not to Resign.
|
|
SECTION
6.05
|
Delegation
of Duties.
|
|
SECTION
6.06
|
[Reserved].
|
|
SECTION
6.07
|
Inspection.
|
|
SECTION
6.08
|
Credit
Risk Manager.
|
|
ARTICLE
VII
DEFAULT
|
|
|
SECTION
7.01
|
Servicer
Events of Termination.
|
|
SECTION
7.02
|
Trustee
to Act; Appointment of Successor.
|
|
SECTION
7.03
|
Waiver
of Defaults.
|
|
SECTION
7.04
|
Notification
to Certificateholders.
|
|
SECTION
7.05
|
Survivability
of Servicer Liabilities.
|
|
ARTICLE
VIII
THE
TRUSTEE
|
|
|
SECTION
8.01
|
Duties
of Trustee.
|
|
SECTION
8.02
|
Certain
Matters Affecting the Trustee.
|
|
SECTION
8.03
|
Trustee
Not Liable for Certificates or Mortgage Loans.
|
|
SECTION
8.04
|
Trustee
May Own Certificates.
|
|
SECTION
8.05
|
Trustee
Compensation and Expenses.
|
|
SECTION
8.06
|
Eligibility
Requirements for Trustee.
|
|
SECTION
8.07
|
Resignation
or Removal of Trustee.
|
|
SECTION
8.08
|
Successor
Trustee.
|
|
SECTION
8.09
|
Merger
or Consolidation of Trustee.
|
|
SECTION
8.10
|
Appointment
of Co-Trustee or Separate Trustee.
|
|
SECTION
8.11
|
Limitation
of Liability.
|
|
SECTION
8.12
|
Trustee
May Enforce Claims Without Possession of Certificates.
|
|
SECTION
8.13
|
Suits
for Enforcement.
|
|
SECTION
8.14
|
Waiver
of Bond Requirement.
|
|
SECTION
8.15
|
Waiver
of Inventory, Accounting and Appraisal Requirement.
|
|
SECTION
8.16
|
[Reserved].
|
|
ARTICLE
IX
REMIC
ADMINISTRATION
|
|
|
SECTION
9.01
|
REMIC
Administration.
|
|
SECTION
9.02
|
Prohibited
Transactions and Activities.
|
|
SECTION
9.03
|
Indemnification
with Respect to Certain Taxes and Loss of REMIC Status.
|
|
ARTICLE
X
TERMINATION
|
|
|
SECTION
10.01
|
Termination.
|
|
SECTION
10.02
|
Additional
Termination Requirements.
|
|
ARTICLE
XI
MISCELLANEOUS
PROVISIONS
|
|
|
SECTION
11.01
|
Amendment.
|
|
SECTION
11.02
|
Recordation
of Agreement; Counterparts.
|
|
SECTION
11.03
|
Limitation
on Rights of Certificateholders.
|
|
SECTION
11.04
|
Governing
Law; Jurisdiction.
|
|
SECTION
11.05
|
Notices.
|
|
SECTION
11.06
|
Severability
of Provisions.
|
|
SECTION
11.07
|
Article
and Section References.
|
|
SECTION
11.08
|
Notice
to the Rating Agencies and the NIMS Insurer.
|
|
SECTION
11.09
|
Further
Assurances.
|
|
SECTION
11.10
|
Third
Party Rights.
|
|
SECTION
11.11
|
Benefits
of Agreement.
|
|
SECTION
11.12
|
Acts
of Certificateholders.
|
|
SECTION
11.13
|
Intention
of the Parties and Interpretation.
|
|
Exhibits:
|
|
|
Exhibit
A-1
|
Form
of Class I-A-1 Certificates
|
|
Exhibit
A-2
|
Form
of Class II-A-1 Certificates
|
|
Exhibit
A-3
|
Form
of Class II-A-2 Certificates
|
|
Exhibit
A-4
|
Form
of Class II-A-3 Certificates
|
|
Exhibit
A-5
|
Form
of Class II-A-4 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 B-1 Certificates
|
|
Exhibit
A-16
|
Form
of Class B-2 Certificates
|
|
Exhibit
A-17
|
Form
of Class B-3 Certificates
|
|
Exhibit
A-18
|
Form
of Class C Certificates
|
|
Exhibit
A-19
|
Form
of Class P Certificates
|
|
Exhibit
A-20
|
Form
of Class R Certificates
|
|
Exhibit
A-21
|
Form
of Class R-X Certificates
|
|
Exhibit
B
|
[Reserved]
|
|
Exhibit
C
|
Form
of Assignment Agreement
|
|
Exhibit
D
|
Mortgage
Loan Schedule
|
|
Exhibit
E
|
Request
for Release
|
|
Exhibit
F-1
|
Form
of Trustee’s/Custodian’s Initial Certification
|
|
Exhibit
F-2
|
Form
of Trustee’s/Custodian’s Final Certification
|
|
Exhibit
F-3
|
Form
of Receipt of Mortgage Note
|
|
Exhibit
G
|
[Reserved]
|
|
Exhibit
H
|
Form
of Lost Note Affidavit
|
|
Exhibit
I
|
Form
of Limited Power of Attorney
|
|
Exhibit
J
|
Form
of Investment Letter
|
|
Exhibit
K
|
Form
of Transfer Affidavit for Residual Certificates
|
|
Exhibit
L
|
Form
of Transferor Certificate
|
|
Exhibit
M
|
Form
of ERISA Representation Letter
|
|
Exhibit
N-1
|
Form
Certification to be Provided by the Depositor with Form
10-K
|
|
Exhibit
N-2
|
Form
Certification to be Provided to the Depositor by the
Trustee
|
|
Exhibit
N-3
|
Form
Certification to be Provided to the Depositor by the
Servicer
|
|
Exhibit
O
|
Form
of Cap Contract
|
|
Exhibit
P
|
Form
of Annual Statement as to Compliance
|
|
Exhibit
Q
|
Form
of Interest Rate Swap Agreement
|
|
Exhibit
R
|
[Reserved]
|
|
Exhibit
S
|
Servicing
Criteria
|
|
Exhibit
T
|
Form
10-D, Form 8-K and Form 10-K Reporting Responsibility
|
|
Schedule
I
|
Prepayment
Charge Schedule
|
|
Schedule
II
|
Swap
Payment Schedule
|
This
Pooling and Servicing Agreement is dated as of April 1, 2006 (the “Agreement”),
among FINANCIAL ASSET SECURITIES CORP., as depositor (the “Depositor”), XXXXX
FARGO BANK, N.A., as servicer effective July 1, 2006 (the “Servicer”) and
DEUTSCHE BANK NATIONAL TRUST COMPANY, as trustee (the “Trustee”).
PRELIMINARY
STATEMENT:
The
Depositor intends to sell pass-through certificates (collectively, the
“Certificates”), to be issued hereunder in multiple classes, which in the
aggregate will evidence the entire beneficial ownership interest in the Trust
Fund created hereunder. The Certificates will consist of twenty-one classes
of
certificates, designated as (i) the Class I-A-1 Certificates, (ii) the Class
II-A-1 Certificates, (iii) the Class II-A-2 Certificates, (iv) Class II-A-3
Certificates, (v) the Class II-A-4 Certificates, (vi) the Class M-1 Certificates
(vii) the Class M-2 Certificates, (viii) the Class M-3 Certificates, (ix) the
Class M-4 Certificates, (x) the Class M-5 Certificates, (xi) the Class M-6
Certificates, (xii) the Class M-7 Certificates, (xiii) the Class M-8
Certificates, (xiv) the Class M-9 Certificates, (xv) the Class B-1 Certificates,
(xvi) the Class B-2 Certificates, (xvii) the Class B-3 Certificates, (xviii)
the
Class C Certificates, (xix) the Class P Certificates, (xx) the Class R
Certificates and (xxi) the Class R-X Certificates.
REMIC
1
As
provided herein, the Trustee shall elect to treat the segregated pool of assets
consisting of the Mortgage Loans and certain other related assets subject to
this Agreement (exclusive of the Net WAC Rate Carryover Reserve Account, any
Servicer Prepayment Charge Payment Amounts, the Cap Contract, the Swap Account,
the Supplemental Interest Trust and the Interest Rate Swap Agreement) as a
REMIC
for federal income tax purposes, and such segregated pool of assets shall be
designated as “REMIC 1.” The Class R-1 Interest shall represent the sole class
of “residual interests” in REMIC 1 for purposes of the REMIC Provisions (as
defined herein). The following table irrevocably sets forth the designation,
the
Uncertificated REMIC 1 Pass-Through Rate, the initial Uncertificated Principal
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 1
Regular Interests (as defined herein). None of the REMIC 1 Regular Interests
shall be certificated.
|
Designation
|
Uncertificated
REMIC 1
Pass-Through
Rate
|
Initial
Uncertificated
Principal Balance
|
Latest
Possible
Maturity
Date(1)
|
|
I
|
Variable(2)
|
$
199,773,809.31
|
April
25, 2036
|
||||
|
I-1-A
|
Variable(2)
|
$
13,278,462.50
|
April
25, 2036
|
||||
|
I-1-B
|
Variable(2)
|
$
13,278,462.50
|
April
25, 2036
|
||||
|
I-2-A
|
Variable(2)
|
$
13,700,856.25
|
April
25, 2036
|
||||
|
I-2-B
|
Variable(2)
|
$
13,700,856.25
|
April
25, 2036
|
||||
|
I-3-A
|
Variable(2)
|
$
14,073,423.75
|
April
25, 2036
|
||||
|
I-3-B
|
Variable(2)
|
$
14,073,423.75
|
April
25, 2036
|
||||
|
I-4-A
|
Variable(2)
|
$
14,393,416.25
|
April
25, 2036
|
||||
|
I-4-B
|
Variable(2)
|
$
14,393,416.25
|
April
25, 2036
|
||||
|
I-5-A
|
Variable(2)
|
$
14,658,462.50
|
April
25, 2036
|
||||
|
I-5-B
|
Variable(2)
|
$
14,658,462.50
|
April
25, 2036
|
||||
|
I-6-A
|
Variable(2)
|
$
14,866,587.50
|
April
25, 2036
|
||||
|
I-6-B
|
Variable(2)
|
$
14,866,587.50
|
April
25, 2036
|
||||
|
I-7-A
|
Variable(2)
|
$
15,016,256.25
|
April
25, 2036
|
||||
|
I-7-B
|
Variable(2)
|
$
15,016,256.25
|
April
25, 2036
|
||||
|
I-8-A
|
Variable(2)
|
$
15,106,380.00
|
April
25, 2036
|
||||
|
I-8-B
|
Variable(2)
|
$
15,106,380.00
|
April
25, 2036
|
||||
|
I-9-A
|
Variable(2)
|
$
15,136,355.00
|
April
25, 2036
|
||||
|
I-9-B
|
Variable(2)
|
$
15,136,355.00
|
April
25, 2036
|
||||
|
I-10-A
|
Variable(2)
|
$
21,595,695.00
|
April
25, 2036
|
||||
|
I-10-B
|
Variable(2)
|
$
21,595,695.00
|
April
25, 2036
|
||||
|
I-11-A
|
Variable(2)
|
$
220,950,520.00
|
April
25, 2036
|
||||
|
I-11-B
|
Variable(2)
|
$
220,950,520.00
|
April
25, 2036
|
||||
|
I-12-A
|
Variable(2)
|
$
1,317,303.75
|
April
25, 2036
|
||||
|
I-12-B
|
Variable(2)
|
$
1,317,303.75
|
April
25, 2036
|
||||
|
I-13-A
|
Variable(2)
|
$
1,178,042.50
|
April
25, 2036
|
||||
|
I-13-B
|
Variable(2)
|
$
1,178,042.50
|
April
25, 2036
|
||||
|
I-14-A
|
Variable(2)
|
$
1,131,592.50
|
April
25, 2036
|
||||
|
I-14-B
|
Variable(2)
|
$
1,131,592.50
|
April
25, 2036
|
||||
|
I-15-A
|
Variable(2)
|
$
1,087,076.25
|
April
25, 2036
|
||||
|
I-15-B
|
Variable(2)
|
$
1,087,076.25
|
April
25, 2036
|
||||
|
I-16-A
|
Variable(2)
|
$
1,044,407.50
|
April
25, 2036
|
||||
|
I-16-B
|
Variable(2)
|
$
1,044,407.50
|
April
25, 2036
|
||||
|
I-17-A
|
Variable(2)
|
$
1,003,502.50
|
April
25, 2036
|
||||
|
I-17-B
|
Variable(2)
|
$
1,003,502.50
|
April
25, 2036
|
||||
|
I-18-A
|
Variable(2)
|
$
964,285.00
|
April
25, 2036
|
||||
|
I-18-B
|
Variable(2)
|
$
964,285.00
|
April
25, 2036
|
||||
|
I-19-A
|
Variable(2)
|
$
926,678.75
|
April
25, 2036
|
||||
|
I-19-B
|
Variable(2)
|
$
926,678.75
|
April
25, 2036
|
||||
|
I-20-A
|
Variable(2)
|
$
890,617.50
|
April
25, 2036
|
||||
|
I-20-B
|
Variable(2)
|
$
890,617.50
|
April
25, 2036
|
||||
|
I-21-A
|
Variable(2)
|
$
892,082.50
|
April
25, 2036
|
||||
|
I-21-B
|
Variable(2)
|
$
892,082.50
|
April
25, 2036
|
||||
|
I-22-A
|
Variable(2)
|
$
1,232,123.75
|
April
25, 2036
|
||||
|
I-22-B
|
Variable(2)
|
$
1,232,123.75
|
April
25, 2036
|
||||
|
I-23-A
|
Variable(2)
|
$
1,723,623.75
|
April
25, 2036
|
||||
|
I-23-B
|
Variable(2)
|
$
1,723,623.75
|
April
25, 2036
|
||||
|
I-24-A
|
Variable(2)
|
$
682,918.75
|
April
25, 2036
|
||||
|
I-24-B
|
Variable(2)
|
$
682,918.75
|
April
25, 2036
|
||||
|
I-25-A
|
Variable(2)
|
$
652,227.50
|
April
25, 2036
|
||||
|
I-25-B
|
Variable(2)
|
$
652,227.50
|
April
25, 2036
|
||||
|
I-26-A
|
Variable(2)
|
$
628,892.50
|
April
25, 2036
|
||||
|
I-26-B
|
Variable(2)
|
$
628,892.50
|
April
25, 2036
|
||||
|
I-27-A
|
Variable(2)
|
$
606,397.50
|
April
25, 2036
|
||||
|
I-27-B
|
Variable(2)
|
$
606,397.50
|
April
25, 2036
|
||||
|
I-28-A
|
Variable(2)
|
$
584,712.50
|
April
25, 2036
|
||||
|
I-28-B
|
Variable(2)
|
$
584,712.50
|
April
25, 2036
|
||||
|
I-29-A
|
Variable(2)
|
$
563,807.50
|
April
25, 2036
|
||||
|
I-29-B
|
Variable(2)
|
$
563,807.50
|
April
25, 2036
|
||||
|
I-30-A
|
Variable(2)
|
$
543,656.25
|
April
25, 2036
|
||||
|
I-30-B
|
Variable(2)
|
$
543,656.25
|
April
25, 2036
|
||||
|
I-31-A
|
Variable(2)
|
$
524,227.50
|
April
25, 2036
|
||||
|
I-31-B
|
Variable(2)
|
$
524,227.50
|
April
25, 2036
|
||||
|
I-32-A
|
Variable(2)
|
$
505,498.75
|
April
25, 2036
|
||||
|
I-32-B
|
Variable(2)
|
$
505,498.75
|
April
25, 2036
|
||||
|
I-33-A
|
Variable(2)
|
$
487,441.25
|
April
25, 2036
|
||||
|
I-33-B
|
Variable(2)
|
$
487,441.25
|
April
25, 2036
|
||||
|
I-34-A
|
Variable(2)
|
$
470,032.50
|
April
25, 2036
|
||||
|
I-34-B
|
Variable(2)
|
$
470,032.50
|
April
25, 2036
|
||||
|
I-35-A
|
Variable(2)
|
$
453,248.75
|
April
25, 2036
|
||||
|
I-35-B
|
Variable(2)
|
$
453,248.75
|
April
25, 2036
|
||||
|
I-36-A
|
Variable(2)
|
$
437,066.25
|
April
25, 2036
|
||||
|
I-36-B
|
Variable(2)
|
$
437,066.25
|
April
25, 2036
|
||||
|
I-37-A
|
Variable(2)
|
$
421,466.25
|
April
25, 2036
|
||||
|
I-37-B
|
Variable(2)
|
$
421,466.25
|
April
25, 2036
|
||||
|
I-38-A
|
Variable(2)
|
$
406,422.50
|
April
25, 2036
|
||||
|
I-38-B
|
Variable(2)
|
$
406,422.50
|
April
25, 2036
|
||||
|
I-39-A
|
Variable(2)
|
$
10,968,608.75
|
April
25, 2036
|
||||
|
I-39-B
|
Variable(2)
|
$
10,968,608.75
|
April
25, 2036
|
________________
(1) For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
Regulations.
(2) Calculated
in accordance with the definition of “Uncertificated REMIC 1 Pass-Through Rate”
herein.
REMIC
2
As
provided herein, the Trustee shall elect to treat the segregated pool of assets
consisting of the REMIC 1 Regular Interests as a REMIC for federal income tax
purposes, and such segregated pool of assets shall be designated as “REMIC 2.”
The Class R-2 Interest shall evidence the sole class of “residual interests” in
REMIC 2 for purposes of the REMIC Provisions under federal income tax law.
The
following table irrevocably sets forth the designation, the Uncertificated
REMIC
2 Pass-Through Rate, the initial Uncertificated Principal 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 2 Regular Interests (as
defined herein). None of the REMIC 2 Regular Interests shall be
certificated.
|
Designation
|
Uncertificated
REMIC 2
Pass-Through
Rate
|
Initial
Uncertificated
Principal
Balance
|
Latest
Possible
Maturity
Date(1)
|
|
LTAA
|
Variable(2)
|
$
989,782,812.57
|
April
25, 2036
|
|
LTIA1
|
Variable(2)
|
$
3,348,520.00
|
April
25, 2036
|
|
LTIIA1
|
Variable(2)
|
$
1,653,100.00
|
April
25, 2036
|
|
LTIIA2
|
Variable(2)
|
$
1,059,960.00
|
April
25, 2036
|
|
LTIIA3
|
Variable(2)
|
$
1,265,970.00
|
April
25, 2036
|
|
LTIIA4
|
Variable(2)
|
$
388,700.00
|
April
25, 2036
|
|
LTM1
|
Variable(2)
|
$
752,440.00
|
April
25, 2036
|
|
LTM2
|
Variable(2)
|
$
227,240.00
|
April
25, 2036
|
|
LTM3
|
Variable(2)
|
$
196,950.00
|
April
25, 2036
|
|
LTM4
|
Variable(2)
|
$
186,850.00
|
April
25, 2036
|
|
LTM5
|
Variable(2)
|
$
161,600.00
|
April
25, 2036
|
|
LTM6
|
Variable(2)
|
$
161,600.00
|
April
25, 2036
|
|
LTM7
|
Variable(2)
|
$
136,350.00
|
April
25, 2036
|
|
LTM8
|
Variable(2)
|
$
90,900.00
|
April
25, 2036
|
|
LTM9
|
Variable(2)
|
$
80,800.00
|
April
25, 2036
|
|
LTB1
|
Variable(2)
|
$
101,000.00
|
April
25, 2036
|
|
LTB2
|
Variable(2)
|
$
65,650.00
|
April
25, 2036
|
|
LTB3
|
Variable(2)
|
$
75,750.00
|
April
25, 2036
|
|
LTZZ
|
Variable(2)
|
$
10,246,269.24
|
Xxxxx
00, 0000
|
|
XXX
|
Variable(2)
|
$ 100.00
|
April
25, 2036
|
|
LTIO
|
Variable(2)
|
(3)
|
April
25, 2036
|
________________
(1) For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
Regulations.
(2) Calculated
in accordance with the definition of “Uncertificated REMIC 2 Pass-Through Rate”
herein.
(3) REMIC
2
Regular Interest LTIO shall not have an Uncertificated Principal Balance, but
shall accrue interest on its Uncertificated Notional Amount, as defined
herein.
REMIC
3
As
provided herein, the Trustee shall elect to treat the segregated pool of assets
consisting of the REMIC 2 Regular Interests as a REMIC for federal income tax
purposes, and such segregated pool of assets shall be designated as “REMIC 3.”
The Class R-3 Interest shall evidence the sole class of “residual interests” in
REMIC 3 for purposes of the REMIC Provisions.
The
following table irrevocably sets forth the designation, the Pass-Through Rate,
the Original Class Certificate Principal Balance and, for purposes of satisfying
Treasury Regulation Section 1.860G-1(a)(4)(iii), the “latest possible maturity
date” for each Class of Certificates that represents one or more of the “regular
interests” in REMIC 3 created hereunder.
|
Designation
|
Original
Class Certificate
Principal
Balance
|
Pass-Through
Rate
|
Latest
Possible
Maturity
Date(1)
|
|
|
Class
I-A-1
|
$ 334,852,000.00
|
Variable(2)
|
April
25, 2036
|
|
|
Class
II-A-1
|
$ 165,310,000.00
|
Variable(2)
|
April
25, 2036
|
|
|
Class
II-A-2
|
$ 105,996,000.00
|
Variable(2)
|
April
25, 2036
|
|
|
Class
II-A-3
|
$ 126,597,000.00
|
Variable(2)
|
April
25, 2036
|
|
|
Class
II-A-4
|
$
38,870,000.00
|
Variable(2)
|
April
25, 2036
|
|
|
Class
M-1
|
$
75,244,000.00
|
Variable(2)
|
April
25, 2036
|
|
|
Class
M-2
|
$
22,724,000.00
|
Variable(2)
|
April
25, 2036
|
|
|
Class
M-3
|
$
19,695,000.00
|
Variable(2)
|
April
25, 2036
|
|
|
Class
M-4
|
$
18,685,000.00
|
Variable(2)
|
April
25, 2036
|
|
|
Class
M-5
|
$
16,160,000.00
|
Variable(2)
|
April
25, 2036
|
|
|
Class
M-6
|
$
16,160,000.00
|
Variable(2)
|
April
25, 2036
|
|
|
Class
M-7
|
$
13,635,000.00
|
Variable(2)
|
April
25, 2036
|
|
|
Class
M-8
|
$
9,090,000.00
|
Variable(2)
|
April
25, 2036
|
|
|
Class
M-9
|
$
8,080,000.00
|
Variable(2)
|
April
25, 2036
|
|
|
Class
B-1
|
$
10,100,000.00
|
Variable(2)
|
April
25, 2036
|
|
|
Class
B-2
|
$
6,565,000.00
|
Variable(2)
|
April
25, 2036
|
|
|
Class
B-3
|
$
7,575,000.00
|
5.0000%
per annum(3)
|
April
25, 2036
|
|
|
Class
C Interest
|
$
14,644,461.81
|
Variable(4)
|
April
25, 2036
|
|
|
Class
P Interest
|
$ 100.00
|
Variable(5)
|
April
25, 2036
|
|
|
Class
IO Interest
|
(6)
|
(7)
|
April
25, 2036
|
|
________________
(1) For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
Regulations.
(2) Calculated
in accordance with the definition of “Pass-Through Rate” herein.
(3) Subject
to increase and limitation as set forth in the definition of “Pass-Through Rate”
herein.
(4) The
Class
C Interest will accrue interest at its variable Pass-Through Rate on the
Notional Amount of the Class C Interest outstanding from time to time which
will
equal the aggregate of the Uncertificated Principal Balance of the REMIC 2
Regular Interests (other than REMIC 2 Regular Interest LTP). The Class C
Interest will not accrue interest on its Certificate Principal
Balance.
(5) The
Class
P Interest will not accrue interest.
(6) For
federal income tax purposes, the Class IO Interest will not have an Certificate
Principal Balance, but will have a notional amount equal to the Uncertificated
Notional Amount of REMIC 2 Regular Interest LTIO.
(7) For
federal income tax purposes, the Class IO Interest will not have a Pass-Through
Rate, but will be entitled to 100% of the amounts distributed on REMIC 2 Regular
Interest LTIO.
REMIC
4
As
provided herein, the Trustee shall make an election to treat the Class M-6
Interest as a REMIC for federal income tax purposes, and such segregated pool
of
assets will be designated as “REMIC 4.” The Class R-4 Interest represents the
sole class of “residual interests” in REMIC 4 for purposes of the REMIC
Provisions.
The
following table sets forth (or describes) the Class designation, Pass-Through
Rate, the Original Class Certificate Principal Balance and, for purposes of
satisfying Treasury regulation Section 1.860G-1(a)(4)(iii), the “latest possible
maturity date” for the Class M-6 Certificates.
|
Class
Designation
|
Original
Class Certificate
Principal
Balance
|
Pass-Through
Rate
|
Latest
Possible
Maturity
Date(1)
|
|
Class
C
|
$
14,644,461.81
|
Variable(2)
|
April
25, 2036
|
________________
(1) For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
Regulations.
(2) The
Class
C Certificates will receive 100% of amounts received in respect of the Class
C
Interest.
REMIC
5
As
provided herein, the Trustee shall make an election to treat the Class M-7
Interest as a REMIC for federal income tax purposes, and such segregated pool
of
assets will be designated as “REMIC 5.” The Class R-5 Interest represents the
sole class of “residual interests” in REMIC 5 for purposes of the REMIC
Provisions.
The
following table sets forth (or describes) the Class designation, Pass-Through
Rate, the Original Class Certificate Principal Balance and, for purposes of
satisfying Treasury regulation Section 1.860G-1(a)(4)(iii), the “latest possible
maturity date” for the Class M-7 Certificates.
|
Class
Designation
|
Original
Class Certificate
Principal
Balance
|
Pass-Through
Rate
|
Latest
Possible
Maturity
Date(1)
|
|
Class
P
|
$ 100.00
|
Variable(2)
|
April
25, 2036
|
________________
(1) For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
Regulations.
(2) The
Class
P Certificates will receive 100% of amounts received in respect of the Class
P
Interest.
REMIC
6
As
provided herein, the Trustee shall make an election to treat the Class M-8
Interest as a REMIC for federal income tax purposes, and such segregated pool
of
assets will be designated as “REMIC 6.” The Class R-6 Interest represents the
sole class of “residual interests” in REMIC 6 for purposes of the REMIC
Provisions.
The
following table sets forth (or describes) the Class designation, Pass-Through
Rate, the Original Class Certificate Principal Balance and, for purposes of
satisfying Treasury regulation Section 1.860G-1(a)(4)(iii), the “latest possible
maturity date”for the Class M-8 Certificates.
|
Class
Designation
|
Original
Class Certificate
Principal
Balance
|
Pass-Through
Rate
|
Latest
Possible
Maturity
Date(1)
|
|
SWAP
IO
|
N/A
|
Variable(2)
|
April
25, 2036
|
________________
(1) For
purposes of Section 1.860G-1(a)(4)(iii) of the Treasury
Regulations.
(2) REMIC
6
Regular Interest SWAP IO shall receive 100% of amounts received in respect
of
the Class IO Interest.
ARTICLE
I
DEFINITIONS
| SECTION 1.01 |
Defined
Terms.
|
Whenever
used in this Agreement or in the Preliminary Statement, the following words
and
phrases, unless the context otherwise requires, shall have the meanings
specified in this Article. Unless otherwise specified, all calculations in
respect of interest on the Floating Rate Certificates shall be made on the
basis
of the actual number of days elapsed and a 360-day year and all calculations
in
respect of interest on the Fixed Rate Certificates, Class C Certificates, Class
IO Interest, REMIC 1 Regular Interests, REMIC 2 Regular Interests and all other
calculations of interest described herein shall be made on the basis of a
360-day year consisting of twelve 30-day months. The Class P Certificates and
the Residual Certificates are not entitled to distributions in respect of
interest and, accordingly, will not accrue interest.
“1933
Act”: The Securities Act of 1933, as amended.
“Account”:
Either of the Collection Account or Distribution Account.
“Accrual
Period”: With respect to the Fixed Rate Certificates and the Class C
Certificates and each Distribution Date, the calendar month prior to the month
of such Distribution Date. With respect to the Floating Rate Certificates and
each Distribution Date, the period commencing on the preceding Distribution
Date
(or in the case of the first such Accrual Period, commencing on the Closing
Date) and ending on the day preceding the current Distribution
Date.
“Adjustable-Rate
Mortgage Loan”: A first lien Mortgage Loan which provides at any period during
the life of such loan for the adjustment of the Mortgage Rate payable in respect
thereto. The Adjustable-Rate Mortgage Loans are identified as such on the
Mortgage Loan Schedule.
“Adjusted
Net Maximum Mortgage Rate”: With respect to any Mortgage Loan (or the related
REO Property), as of any date of determination, a per annum rate of interest
equal to the applicable Maximum Mortgage Rate for such Mortgage Loan (or the
Mortgage Rate in the case of any Fixed-Rate Mortgage Loan) as of the first
day
of the month preceding the month in which the related Distribution Date occurs
minus the sum of (i) the Servicing Fee Rate and (ii) the Credit Risk Manager
Fee
Rate.
“Adjusted
Net Mortgage Rate”: With respect to any Mortgage Loan (or the related REO
Property), as of any date of determination, a per annum rate of interest equal
to the applicable Mortgage Rate for such Mortgage Loan as of the first day
of
the month preceding the month in which the related Distribution Date occurs
minus the sum of (i) the Servicing Fee Rate and (ii) the Credit Risk Manager
Fee
Rate.
“Adjustment
Date”: With respect to each Adjustable-Rate Mortgage Loan, each adjustment date,
on 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 4.04.
“Advance
Facility”: As defined in Section 3.29 hereof.
“Advance
Facility Notic”: As defined in Section 3.29 hereof.
“Advancing
Financing Person”: As defined in Section 3.29 hereof.
“Advance
Reimbursement Amounts”: As defined in Section 3.29 hereof.
“Adverse
REMIC Event”: As defined in Section 9.01(f) hereof.
“Affiliate”:
With respect to any Person, any other Person controlling, controlled by or
under
common control with such Person. For purposes of this definition, “control”
means the power to direct the management and policies of a Person, directly
or
indirectly, whether through ownership of voting securities, by contract or
otherwise and “controlling” and “controlled” shall 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
Mezzanine Certificates or Class B Certificates, the sum of (i) any Realized
Losses allocated to such Class of Certificates on such Distribution Date and
(ii) the amount of any Allocated Realized Loss Amount for such Class of
Certificates remaining undistributed from the previous Distribution Date as
reduced by an amount equal to the increase in the related Certificate Principal
Balance due to the receipt of Subsequent Recoveries.
“Assessment
of Compliance”: As defined in Section 3.21.
“Assignment”:
An assignment of Mortgage, notice of transfer or equivalent instrument, in
recordable form, which is sufficient under the laws of the jurisdiction wherein
the related Mortgaged Property is located to reflect or record the sale of
the
Mortgage.
“Assignment
Agreement”: The Assignment and Recognition Agreement, dated April [_], 2006,
among the Seller, the Originator and the Depositor, pursuant to which certain
of
the Seller’s rights under the Master Agreement were assigned to the Depositor,
substantially in the form attached hereto as Exhibit C.
“Assumed
Final Maturity Date”: As to each Class of Certificates, the date set forth as
such in the Preliminary Statement.
“Attestation
Report”: As defined in Section 3.21.
“Available
Funds”: With respect to any Distribution Date, an amount equal to the excess of
(i) the sum of (a) the aggregate of the related Monthly Payments on the Mortgage
Loans due on the related Due Date and received on or prior to the related
Determination Date, (b) Net Liquidation Proceeds, Insurance Proceeds, Subsequent
Recoveries, Principal Prepayments, proceeds from repurchases of and
substitutions for such Mortgage Loans and other unscheduled recoveries of
principal and interest in respect of the Mortgage Loans received during the
related Prepayment Period, (c) the aggregate of any amounts received in respect
of a related REO Property withdrawn from any REO Account and deposited in the
Collection Account for such Distribution Date, (d) the aggregate of any amounts
deposited in the Collection Account by the Servicer in respect of related
Prepayment Interest Shortfalls for such Distribution Date, (e) the aggregate
of
any Advances made by the Servicer for such Distribution Date in respect of
the
Mortgage Loans, (f) the aggregate of any related advances made by the Trustee
in
respect of the Mortgage Loans for such Distribution Date pursuant to Section
7.02 and (g) the amount of any Prepayment Charges collected by the Servicer
in
connection with the full or partial prepayment of any of the Mortgage Loans
and
any Servicer Prepayment Charge Payment Amount over (ii) the sum of (a) amounts
reimbursable or payable to the Servicer pursuant to Section 3.11(a) or the
Trustee pursuant to Section 3.11(b), (b) amounts deposited in the Collection
Account or the Distribution Account pursuant to clauses (a) through (g) above,
as the case may be, in error, (c) the amount of any Prepayment Charges collected
by the Servicer in connection with the full or partial prepayment of any of
the
Mortgage Loans and any Servicer Prepayment Charge Payment Amount, (d) any
indemnification payments or expense reimbursements made by the Trust Fund
pursuant to Section 8.05 and (e) any Net Swap Payment or Swap Termination
Payment owed to the Swap Provider (other than any Swap Termination Payment
owed
to the Swap Provider resulting from a Swap Provider Trigger Event).
“Balloon
Mortgage Loan”: A Mortgage Loan that provides for the payment of the unamortized
Stated Principal Balance of such Mortgage Loan in a single payment at the
maturity of such Mortgage Loan that is substantially greater than the preceding
monthly payment.
“Balloon
Payment”: A payment of the unamortized Stated Principal Balance of a Mortgage
Loan in a single payment at the maturity of such Mortgage Loan that is
substantially greater than the preceding Monthly Payment.
“Bankruptcy
Code”: The Bankruptcy Reform Act of 1978 (Title 11 of the United States Code),
as amended.
“Book-Entry
Certificates”: Any of the Certificates that shall be registered in the name of
the Depository or its nominee, the ownership of which is reflected on the books
of the Depository or on the books of a Person maintaining an account with the
Depository (directly, as a “Depository Participant”, or indirectly, as an
indirect participant in accordance with the rules of the Depository and as
described in Section 5.02 hereof). On the Closing Date, the Class A
Certificates, the Class B Certificates and Mezzanine Certificates shall be
Book-Entry Certificates.
“Business
Day”: Any day other than a Saturday, a Sunday or a day on which banking or
savings institutions in the State of Delaware, the State of Florida, the State
of New York, the State of Texas, the State of California, the Commonwealth
of
Pennsylvania, or in the city in which the Corporate Trust Office of the Trustee
is located are authorized or obligated by law or executive order to be
closed.
“Cap
Amount”: The Cap Amount for any Class of the Floating Rate Certificates is equal
to (i) the aggregate amount received by the Trust from the Cap Contract
multiplied by (ii) a fraction equal to (a) the Certificate Principal Balance
of
such Class immediately prior to the applicable Distribution Date divided by
(b)
the aggregate Certificate Principal Balance of the Floating Rate Certificates
immediately prior to the applicable Distribution Date.
“Cap
Contract”: The Cap Contract between the Trustee and the counterparty thereunder,
a form of which is attached hereto as Exhibit O.
“Certificate”:
Any Regular Certificate or Residual Certificate.
“Certificateholder”
or “Holder”: The Person in whose name a Certificate is registered in the
Certificate Register, except that a Disqualified Organization or non-U.S. Person
shall not be a Holder of a Residual Certificate for any purpose hereof and,
solely for the purposes 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 11.01. The Trustee and
the NIMS Insurer 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 and the NIMS
Insurer 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
Margin”: With respect to each Class of Floating Rate Certificates and for
purposes of the Marker Rate and the Maximum Uncertificated Accrued Interest
Deferral Amount, the specified REMIC 2 Regular Interest, as
follows:
|
Class
|
REMIC
2
Regular
Interest
|
Certificate
Margin
|
|
|
(1)
(%)
|
(2)
(%)
|
||
|
I-A-1
|
LTIA1
|
0.155
|
0.310
|
|
II-A-1
|
LTIIA1
|
0.060
|
0.120
|
|
II-A-2
|
LTIIA2
|
0.120
|
0.240
|
|
II-A-3
|
LTIIA3
|
0.180
|
0.360
|
|
II-A-4
|
LTIIA4
|
0.270
|
0.540
|
|
M-1
|
LTM1
|
0.320
|
0.480
|
|
M-2
|
LTM2
|
0.360
|
0.540
|
|
M-3
|
LTM3
|
0.460
|
0.690
|
|
M-4
|
LTM4
|
0.490
|
0.735
|
|
M-5
|
LTM5
|
0.550
|
0.825
|
|
M-6
|
LTM6
|
1.050
|
1.575
|
|
M-7
|
LTM7
|
1.250
|
1.875
|
|
M-8
|
LTM8
|
2.150
|
3.225
|
|
M-9
|
LTM9
|
2.400
|
3.600
|
|
B-1
|
LTB1
|
2.400
|
3.600
|
|
B-2
|
LTB2
|
2.400
|
3.600
|
__________
(1) For
the
Accrual Period for each Distribution Date on or prior to the Optional
Termination Date.
(2) For
each
other Accrual Period.
“Certificate
Owner”: With respect to each Book-Entry Certificate, any beneficial owner
thereof.
“Certificate
Principal Balance”: With respect to any Class of Regular Certificates (other
than the Class C Certificates) immediately prior to any Distribution Date,
will
be equal to the Initial Certificate Principal Balance thereof plus any
Subsequent Recoveries added to the Certificate Principal Balance of such
Certificate pursuant to Section 4.01, reduced by the sum of all amounts actually
distributed in respect of principal of such Class and, in the case of a
Mezzanine Certificate or a Class B Certificate, Realized Losses allocated
thereto on all prior Distribution Dates. With respect to the Class C
Certificates as of any date of determination, an amount equal to the excess,
if
any, of (A) the then aggregate Uncertificated Principal Balance of the REMIC
2
Regular Interests over (B) the then aggregate Certificate Principal Balance
of
the Class A, the Mezzanine Certificates, the Class B Certificates and the Class
P Certificates then outstanding.
“Certificate
Register” and “Certificate Registrar”: The register maintained and registrar
appointed pursuant to Section 5.02 hereof.
“Certification”:
As defined in Section 3.22(b)(ii).
“Class”:
Collectively, Certificates which have the same priority of payment and bear
the
same class designation and the form of which is identical except for variation
in the Percentage Interest evidenced thereby.
“Class
A
Certificates”: Any Class I-A-1 Certificate, Class II-A-1 Certificate, Class
II-A-2 Certificate, Class II-A-3 Certificate or Class II-A-4 Certificate.
“Class
B
Certificate”: Any Class B-1 Certificate, Class B-2 Certificate and Class B-3
Certificate.
“Class
B-1 Certificate”: Any one of the Class B-1 Certificates executed by the Trustee,
and authenticated and delivered by the Certificate Registrar, substantially
in
the form annexed hereto as Exhibit A-15, representing the right to distributions
as set forth herein and therein and evidencing (i) a REMIC Regular Interest
in
REMIC 3, (ii) the right to receive the related Net WAC Rate Carryover Amount
and
(iii) the obligation to pay any Class IO Distribution Amount.
“Class
B-1 Principal Distribution Amount”: 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 Senior Principal Distribution Amount
on such Distribution Date), (ii) the aggregate Certificate Principal Balance
of
the Class M-1 Certificates and the M-2 Certificates Certificates (after taking
into account the distribution of the Class M-1/M-2 Principal Distribution Amount
on such Distribution Date), (iii) 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), (iv) 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), (v) 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), (vi) 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), (vii) 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), (viii) 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), (ix) 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 (x) the Certificate Principal
Balance of the Class B-1 Certificates immediately prior to such Distribution
Date over (y) the lesser of (A) the product of (i) 94.30% and (ii) the aggregate
Stated Principal Balance of the Mortgage Loans as of the last day of the related
Due Period (after giving effect to scheduled payments of principal due during
the related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period) and
(B)
the aggregate Stated Principal Balance of the Mortgage Loans as of the last
day
of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) minus the related Overcollateralization Floor.
“Class
B-2 Certificate”: Any one of the Class B-2 Certificates executed by the Trustee,
and authenticated and delivered by the Certificate Registrar, substantially
in
the form annexed hereto as Exhibit A-16, representing the right to distributions
as set forth herein and therein and evidencing (i) a REMIC Regular Interest
in
REMIC 3, (ii) the right to receive the related Net WAC Rate Carryover Amount
and
(iii) the obligation to pay any Class IO Distribution Amount.
“Class
B-2 Principal Distribution Amount”: 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 Senior Principal Distribution Amount
on such Distribution Date), (ii) the aggregate Certificate Principal Balance
of
the Class M-1 Certificates and the Class M-2 Certificates (after taking into
account the distribution of the Class M-1/M-2 Principal Distribution Amount
on
such Distribution Date), (iii) 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), (iv) 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), (v) 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), (vi) 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), (vii) 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), (viii) 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), (ix) 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), (x) the Certificate Principal
Balance of the Class B-1 Certificates (after taking into account the
distribution of the Class B-1 Principal Distribution Amount on such Distribution
Date) and (xi) the Certificate Principal Balance of the Class B-2 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) 95.60% and (ii) the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after giving effect
to scheduled payments of principal due during the related Due Period, to the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period) and (B) the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period
(after giving effect to scheduled payments of principal due during the related
Due Period, to the extent received or advanced, and unscheduled collections
of
principal received during the related Prepayment Period) minus the related
Overcollateralization Floor.
“Class
B-3 Certificate”: Any one of the Class B-3 Certificates executed by the Trustee,
and authenticated and delivered by the Certificate Registrar, substantially
in
the form annexed hereto as Exhibit A-17, representing the right to distributions
as set forth herein and therein and evidencing (i) a REMIC Regular Interest
in
REMIC 3, (ii) the right to receive the related Net WAC Rate Carryover Amount
and
(iii) the obligation to pay any Class IO Distribution Amount.
“Class
B-3 Principal Distribution Amount”: 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 Senior Principal Distribution Amount
on such Distribution Date), (ii) the aggregate Certificate Principal Balance
of
the Class M-1 Certificates and the Class M-2 Certificates (after taking into
account the distribution of the Class M-1/M-2 Principal Distribution Amount
on
such Distribution Date), (iii) 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), (iv) 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), (v) 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), (vi) 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), (vii) 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), (viii) 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), (ix) 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), (x) the Certificate Principal
Balance of the Class B-1 Certificates (after taking into account the
distribution of the Class B-1 Principal Distribution Amount on such Distribution
Date), (xi) the Certificate Principal Balance of the Class B-2 Certificates
(after taking into account the distribution of the Class B-2 Principal
Distribution Amount on such Distribution Date) and (xii) the Certificate
Principal Balance of the Class B-3 Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i) 97.10% and
(ii)
the aggregate Stated Principal Balance of the Mortgage Loans as of the last
day
of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the aggregate Stated Principal Balance of the Mortgage Loans
as
of the last day of the related Due Period (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent received
or advanced, and unscheduled collections of principal received during the
related Prepayment Period) minus the related Overcollateralization
Floor.
“Class
C
Certificates”: Any one of the Class C Certificates executed by the Trustee, and
authenticated and delivered by the Certificate Registrar, substantially in
the
form annexed hereto as Exhibit A-18, representing (i) a Regular Interest in
REMIC 4, (ii) the obligation to pay Net WAC Rate Carryover Amounts and Swap
Termination Payments and (iii) the right to receive the Class IO Distribution
Amount.
“Class
C
Interest”: An uncertificated interest in the Trust Fund held by the Trustee on
behalf of the Holders of the Class C Certificates, evidencing (i) a REMIC
Regular Interest in REMIC 3 and (ii) the obligation to pay any Class IO
Distribution Amount.
“Class
I-A-1 Certificate”: Any one of the Class I-A-1 Certificates executed by the
Trustee, and authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A-1, representing (i) a
Regular Interest in REMIC 3, (ii) the right to receive the Net WAC Rate
Carryover Amount and (iii) the obligation to pay the Class IO Distribution
Amount.
“Class
II-A-1 Certificate”: Any one of the Class II-A-1 Certificates executed by the
Trustee, and authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A-2, representing (i) a
Regular Interest in REMIC 3, (ii) the right to receive the Net WAC Rate
Carryover Amount and (iii) the obligation to pay the Class IO Distribution
Amount.
“Class
II-A-2 Certificate”: Any one of the Class II-A-2 Certificates executed by the
Trustee, and authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A-3, representing (i) a
Regular Interest in REMIC 3, (ii) the right to receive the Net WAC Rate
Carryover Amount and (iii) the obligation to pay the Class IO Distribution
Amount.
“Class
II-A-3 Certificate”: Any one of the Class II-A-3 Certificates executed by the
Trustee, and authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A-4, representing (i) a
Regular Interest in REMIC 3, (ii) the right to receive the Net WAC Rate
Carryover Amount and (iii) the obligation to pay the Class IO Distribution
Amount.
“Class
II-A-4 Certificate”: Any one of the Class II-A-4 Certificates executed by the
Trustee, and authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A-5, representing (i) a
Regular Interest in REMIC 3, (ii) the right to receive the Net WAC Rate
Carryover Amount and (iii) the obligation to pay the Class IO Distribution
Amount.
“Class
IO
Distribution Amount”: As defined in Section 4.10 hereof. For purposes of
clarity, the Class IO Distribution Amount for any Distribution Date shall equal
the amount payable to the Supplemental Interest Trust Trustee on such
Distribution Date in excess of the amount payable on the Class IO Interest
on
such Distribution Date, all as further provided in Section 4.10
hereof.
“Class
IO
Interest”: An uncertificated interest in the Trust Fund evidencing a Regular
Interest in REMIC 3.
“Class
M-1 Certificate”: Any one of the Class M-1 Certificates executed by the Trustee,
and authenticated and delivered by the Certificate Registrar, substantially
in
the form annexed hereto as Exhibit A-6, representing (i) a Regular Interest
in
REMIC 3, (ii) the right to receive the Net WAC Rate Carryover Amount and (iii)
the obligation to pay the Class IO Distribution Amount.
“Class
M-1 Credit Enhancement Percentage”: For any Distribution Date is the percentage
obtained by dividing (x) the aggregate Certificate Principal Balance of the
Class M Certificates (other than the Class M-1 Certificates) and the Class
B
Certificates by (y) the aggregate Stated Principal Balance of the Mortgage
Loans
calculated prior to taking into account distributions 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.
“Class
M-1/M-2 Principal Distribution Amount”: 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 Senior Principal Distribution Amount
on such Distribution Date) and (ii) the aggregate Certificate Principal Balance
of the Class M-1 Certificates and the Class M-2 Certificates immediately prior
to such Distribution Date over (y) the lesser of (A) the product of (i) 72.20%
and (ii) the Stated Principal Balance of the Mortgage Loans as of the last
day
of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the aggregate Stated Principal Balance of the Mortgage Loans
as
of the last day of the related Due Period (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent received
or advanced, and unscheduled collections of principal received during the
related Prepayment Period) minus the related Overcollateralization
Floor.
“Class
M-2 Certificate”: Any one of the Class M-2 Certificates executed by the Trustee,
and authenticated and delivered by the Certificate Registrar, substantially
in
the form annexed hereto as Exhibit A-7, representing (i) a Regular Interest
in
REMIC 3, (ii) the right to receive the Net WAC Rate Carryover Amount and (iii)
the obligation to pay the Class IO Distribution Amount.
“Class
M-3 Certificate”: Any one of the Class M-3 Certificates executed by the Trustee,
and authenticated and delivered by the Certificate Registrar, substantially
in
the form annexed hereto as Exhibit A-8, representing (i) a Regular Interest
in
REMIC 3, (ii) the right to receive the Net WAC Rate Carryover Amount and (iii)
the obligation to pay the Class IO Distribution Amount.
“Class
M-3 Principal Distribution Amount”: 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 Senior Principal Distribution Amount
on such Distribution Date), (ii) the aggregate Certificate Principal Balance
of
the Class M-1 Certificates and the Class M-2 Certificates (after taking into
account the distribution of the Class M-1/M-2 Principal Distribution Amount
on
such Distribution Date) and (iii) 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) 76.10% and (ii) the aggregate Stated Principal Balance
of the Mortgage Loans as of the last day of the related Due Period (after giving
effect to scheduled payments of principal due during the related Due Period,
to
the extent received or advanced, and unscheduled collections of principal
received during the related Prepayment Period) and (B) the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period (after giving effect to scheduled payments of principal due during the
related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period) minus
the related Overcollateralization Floor.
“Class
M-4 Certificate”: Any one of the Class M-4 Certificates executed by the Trustee,
and authenticated and delivered by the Certificate Registrar, substantially
in
the form annexed hereto as Exhibit A-9, representing (i) a Regular Interest
in
REMIC 3, (ii) the right to receive the Net WAC Rate Carryover Amount and (iii)
the obligation to pay the Class IO Distribution Amount.
“Class
M-4 Principal Distribution Amount”: 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 Senior Principal Distribution Amount
on such Distribution Date), (ii) aggregate Certificate Principal Balance of
the
Class M-1 Certificates and the Class M-2 Certificates (after taking into account
the distribution of the Class M-1/M-2 Principal Distribution Amount on such
Distribution Date), (iii) 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 (iv) 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) 79.80%
and
(ii) the aggregate Stated Principal Balance of the Mortgage Loans as of the
last
day of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the aggregate Stated Principal Balance of the Mortgage Loans
as
of the last day of the related Due Period (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent received
or advanced, and unscheduled collections of principal received during the
related Prepayment Period) minus the related Overcollateralization
Floor.
“Class
M-5 Certificate”: Any one of the Class M-5 Certificates executed by the Trustee,
and authenticated and delivered by the Certificate Registrar, substantially
in
the form annexed hereto as Exhibit A-10, representing (i) a Regular Interest
in
REMIC 3, (ii) the right to receive the Net WAC Rate Carryover Amount and (iii)
the obligation to pay the Class IO Distribution Amount.
“Class
M-5 Principal Distribution Amount”: 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 Senior Principal Distribution Amount
on such Distribution Date), (ii) aggregate Certificate Principal Balance of
the
Class M-1 Certificates and the Class M-2 Certificates (after taking into account
the distribution of the Class M-1/M-2 Principal Distribution Amount on such
Distribution Date), (iii) 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), (iv) 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 (v) 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) 83.00% and (ii) the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after giving effect
to scheduled payments of principal due during the related Due Period, to the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period) and (B) the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period
(after giving effect to scheduled payments of principal due during the related
Due Period, to the extent received or advanced, and unscheduled collections
of
principal received during the related Prepayment Period) minus the related
Overcollateralization Floor.
“Class
M-6 Certificate”: Any one of the Class M-6 Certificates executed by the Trustee,
and authenticated and delivered by the Certificate Registrar, substantially
in
the form annexed hereto as Exhibit A-11, representing (i) a Regular Interest
in
REMIC 3, (ii) the right to receive the Net WAC Rate Carryover Amount and (iii)
the obligation to pay the Class IO Distribution Amount.
“Class
M-6 Principal Distribution Amount”: 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 Senior Principal Distribution Amount
on such Distribution Date), (ii) aggregate Certificate Principal Balance of
the
Class M-1 Certificates and the Class M-2 Certificates (after taking into account
the distribution of the Class M-1/M-2 Principal Distribution Amount on such
Distribution Date), (iii) 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), (iv) 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), (v) 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 (vi) 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) 86.20% and
(ii)
the aggregate Stated Principal Balance of the Mortgage Loans as of the last
day
of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the aggregate Stated Principal Balance of the Mortgage Loans
as
of the last day of the related Due Period (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent received
or advanced, and unscheduled collections of principal received during the
related Prepayment Period) minus the related Overcollateralization
Floor.
“Class
M-7 Certificate”: Any one of the Class M-7 Certificates executed by the Trustee,
and authenticated and delivered by the Certificate Registrar, substantially
in
the form annexed hereto as Exhibit A-12, representing (i) a Regular Interest
in
REMIC 3, (ii) the right to receive the Net WAC Rate Carryover Amount and (iii)
the obligation to pay the Class IO Distribution Amount.
“Class
M-7 Principal Distribution Amount”: 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 Senior Principal Distribution Amount
on such Distribution Date), (ii) aggregate Certificate Principal Balance of
the
Class M-1 Certificates and the Class M-2 Certificates (after taking into account
the distribution of the Class M-1/M-2 Principal Distribution Amount on such
Distribution Date), (iii) 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), (iv) 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), (v) 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), (vi) 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 (vii) the Certificate Principal Balance of the Class M-7 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) 88.90% and (ii) the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after giving effect
to scheduled payments of principal due during the related Due Period, to the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period) and (B) the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period
(after giving effect to scheduled payments of principal due during the related
Due Period, to the extent received or advanced, and unscheduled collections
of
principal received during the related Prepayment Period) minus the related
Overcollateralization Floor.
“Class
M-8 Certificate”: Any one of the Class M-8 Certificates executed by the Trustee,
and authenticated and delivered by the Certificate Registrar, substantially
in
the form annexed hereto as Exhibit A-13, representing (i) a Regular Interest
in
REMIC 3, (ii) the right to receive the Net WAC Rate Carryover Amount and (iii)
the obligation to pay the Class IO Distribution Amount.
“Class
M-8 Principal Distribution Amount”: 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 Senior Principal Distribution Amount
on such Distribution Date), (ii) aggregate Certificate Principal Balance of
the
Class M-1 Certificates and the Class M-2 Certificates (after taking into account
the distribution of the Class M-1/M-2 Principal Distribution Amount on such
Distribution Date), (iii) 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), (iv) 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), (v) 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), (vi) 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), (vii) 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 (viii) 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) 90.70% and
(ii)
the aggregate Stated Principal Balance of the Mortgage Loans as of the last
day
of the related Due Period (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the aggregate Stated Principal Balance of the Mortgage Loans
as
of the last day of the related Due Period (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent received
or advanced, and unscheduled collections of principal received during the
related Prepayment Period) minus the related Overcollateralization
Floor.
“Class
M-9 Certificate”: Any one of the Class M-9 Certificates executed by the Trustee,
and authenticated and delivered by the Certificate Registrar, substantially
in
the form annexed hereto as Exhibit A-14, representing (i) a Regular Interest
in
REMIC 3, (ii) the right to receive the Net WAC Rate Carryover Amount and (iii)
the obligation to pay the Class IO Distribution Amount.
“Class
M-9 Principal Distribution Amount”: 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 Senior Principal Distribution Amount
on such Distribution Date), (ii) aggregate Certificate Principal Balance of
the
Class M-1 Certificates and the Class M-2 Certificates (after taking into account
the distribution of the Class M-1/M-2 Principal Distribution Amount on such
Distribution Date), (iii) 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), (iv) 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), (v) 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), (vi) 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), (vii) 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), (viii) 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 (ix) 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) 92.30% and (ii) the aggregate Stated Principal Balance of the
Mortgage Loans as of the last day of the related Due Period (after giving effect
to scheduled payments of principal due during the related Due Period, to the
extent received or advanced, and unscheduled collections of principal received
during the related Prepayment Period) and (B) the aggregate Stated Principal
Balance of the Mortgage Loans as of the last day of the related Due Period
(after giving effect to scheduled payments of principal due during the related
Due Period, to the extent received or advanced, and unscheduled collections
of
principal received during the related Prepayment Period) minus the related
Overcollateralization Floor.
“Class
P
Certificate”: Any one of the Class P Certificates executed by the Trustee, and
authenticated and delivered by the Certificate Registrar, substantially in
the
form annexed hereto as Exhibit A-19, representing a Regular Interest in REMIC
5.
“Class
P
Interest”: An uncertificated interest in the Trust Fund held by the Trustee on
behalf of the Holders of the Class P Certificates, evidencing a Regular Interest
in REMIC 3 for purposes of the REMIC Provisions.
“Class
R
Certificate”: The Class R Certificate executed by the Trustee, and authenticated
and delivered by the Certificate Registrar, substantially in the form annexed
hereto as Exhibit A-20 and evidencing the ownership of the Class R-1 Interest,
the Class R-2 Interest and the Class R-3 Interest.
“Class
R-1 Interest”: The uncertificated Residual Interest in REMIC 1.
“Class
R-2 Interest”: The uncertificated Residual Interest in REMIC 2.
“Class
R-3 Interest”: The uncertificated Residual Interest in REMIC 3.
“Class
R-4 Interest”: The uncertificated Residual Interest in REMIC 4.
“Class
R-5 Interest”: The uncertificated Residual Interest in REMIC 5.
“Class
R-6 Interest”: The uncertificated Residual Interest in REMIC 6.
“Class
R-X Certificate”: The Class R-X Certificate executed by the Trustee, and
authenticated and delivered by the Certificate Registrar, substantially in
the
form annexed hereto as Exhibit A-21 and evidencing the ownership of the Class
R-4 Interest, the Class R-5 Interest and the Class R-6 Interest.
“Close
of
Business”: As used herein, with respect to any Business Day, 5:00 p.m. (New York
time).
“Closing
Date”: April 13, 2006.
“Code”:
The Internal Revenue Code of 1986, as amended.
“Collection
Account”: The account or accounts created and maintained by the Servicer
pursuant to Section 3.10(a), which shall be entitled “Deutsche Bank National
Trust Company, as Trustee, in trust for registered Holders of Fremont Home
Loan
Trust 2006-1, Asset-Backed Certificates, Series 2006-1,” which must be an
Eligible Account.
“Compensating
Interest”: As defined in Section 3.24 hereof.
“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 instrument is located at 0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx Xxx, XX
00000-0000, Attention: Trust Administration- GC06F1, or at such other address
as
the Trustee may designate from time to time by notice to the Certificateholders,
the Depositor, the Servicer and the Originator.
“Corresponding
Certificate”: With respect to each REMIC 2 Regular Interest set forth below, the
corresponding Regular Certificate set forth in the table below:
|
REMIC
2 Regular Interest
|
Regular
Certificate
|
|
LTIA1
|
Class
I-A-1
|
|
LTIIA1
|
Class
II-A-1
|
|
LTIIA2
|
Class
II-A-2
|
|
LTIIA3
|
Class
II-A-3
|
|
LTIIA4
|
Class
II-A-4
|
|
LTM1
|
Class
M-1
|
|
LTM2
|
Class
M-2
|
|
LTM3
|
Class
M-3
|
|
LTM4
|
Class
M-4
|
|
LTM5
|
Class
M-5
|
|
LTM6
|
Class
M-6
|
|
LTM7
|
Class
M-7
|
|
LTM8
|
Class
M-8
|
|
LTM9
|
Class
M-9
|
|
LTB1
|
Class
B-1
|
|
LTB2
|
Class
B-2
|
|
LTB3
|
Class
B-3
|
|
LTP
|
Class
P
|
“Credit
Risk Management Agreement”: The Credit Risk Management Agreement, dated April
13, 2006, between the Servicer and the Credit Risk Manager.
“Credit
Risk Manager”: Xxxxxxx Fixed Income Services Inc., formerly known as The
Murrayhill Company, its successors and assigns.
“Credit
Risk Manager Fee”: for
any
Distribution Date is the premium payable to the Credit Risk Manager at the
Credit Risk Manager Fee Rate on the aggregate principal balance of the Mortgage
Loans as of the prior Determination Date.
“Credit
Risk Manager Fee Rate”: for any Distribution Date is 0.0125% per
annum.
“Cumulative
Loss Percentage”: With respect to any Distribution Date, the percentage
equivalent of a fraction, the numerator of which is the aggregate amount of
Realized Losses incurred from the Cut-off Date to the last day of the preceding
calendar month and the denominator of which is the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date.
“Custodian”:
A Custodian, which shall be Deutsche Bank National Trust Company.
“Cut-off
Date”: With respect to each Mortgage Loan, April 1, 2006.
“Cut-off
Date Principal Balance”: With respect to any Mortgage Loan, the unpaid Stated
Principal Balance thereof as of the Cut-off Date of such Mortgage Loan (or
as of
the applicable date of substitution with respect to a Qualified Substitute
Mortgage Loan), after giving effect to scheduled payments due on or before
the
Cut-off Date, whether or not received.
“Debt
Service Reduction”: With respect to any Mortgage Loan, a reduction in the
scheduled Monthly Payment for such Mortgage Loan by a court of competent
jurisdiction in a proceeding under the Bankruptcy Code, except such a reduction
resulting from a Deficient Valuation.
“Deficient
Valuation”: With respect to any Mortgage Loan, a valuation of the related
Mortgaged Property by a court of competent jurisdiction in an amount less than
the then outstanding Stated Principal Balance of the Mortgage Loan, which
valuation results from a proceeding initiated under the Bankruptcy
Code.
“Definitive
Certificates”: As defined in Section 5.02(c) hereof.
“Deleted
Mortgage Loan”: A Mortgage Loan replaced or to be replaced by one or more
Qualified Substitute Mortgage Loans.
“Delinquency
Percentage”: For any Distribution Date, the percentage obtained by dividing (x)
the aggregate Stated Principal Balance of Mortgage Loans that are Delinquent
60
days or more (including Mortgage Loans that are in foreclosure, that have been
converted to REO Properties or that have been discharged by reason of bankruptcy
and are Delinquent 60 days or more) by (y) the aggregate Stated Principal
Balance of the Mortgage Loans, in each case, as of the last day of the previous
calendar month.
“Delinquent”:
With respect to any Mortgage Loan and related Monthly Payment, the Monthly
Payment due on a Due Date which is not made by the Close of Business on the
next
scheduled Due Date for such Mortgage Loan. For example, a Mortgage Loan is
60 or
more days Delinquent if the Monthly Payment due on a Due Date is not made by
the
Close of Business on the second scheduled Due Date after such Due
Date.
“Depositor”:
Financial Asset Securities Corp., a Delaware corporation, or any successor
in
interest.
“Depository”:
The initial Depository shall be The Depository Trust Company, whose nominee
is
Cede & Co., or any other organization registered as a “clearing agency”
pursuant to Section 17A of the Securities Exchange Act of 1934, as amended.
The
Depository shall initially be the registered Holder of the Book-Entry
Certificates. The Depository shall at all times be a “clearing corporation” as
defined in Section 8-102(3) of the Uniform Commercial Code of the State of
New
York.
“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 any 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 any REMIC 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, deals with taxes
and insurance, or makes decisions as to repairs or capital expenditures with
respect to such REO Property.
“Disqualified
Organization”: A “disqualified organization” under Section 860E of the Code,
which as of the Closing Date is any of: (i) the United States, any state or
political subdivision thereof, any foreign government, any international
organization, or any agency or instrumentality of any of the foregoing, (ii)
any
organization (other than a cooperative described in Section 521 of the Code)
which 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, (iii)
any
organization described in Section 1381(a)(2)(C) of the Code or (iv) an “electing
large partnership” within the meaning of Section 775 of the Code. A corporation
will not be treated as an instrumentality of the United States or of any state
or political subdivision thereof, if all of its activities are subject to tax
and, a majority of its board of directors is not selected by a governmental
unit. The term “United States”, “state” and “international organizations” shall
have the meanings set forth in Section 7701 of the Code.
“Distribution
Account”: The trust account or accounts created and maintained by the Trustee
pursuant to Section 3.10(b) which shall be entitled “Distribution Account,
Deutsche Bank National Trust Company, as Trustee, in trust for the registered
Certificateholders of Fremont Home Loan Trust 2006-1, Asset-Backed Certificates,
Series 2006-1” and which must be an Eligible Account.
“Distribution
Date”: The 25th
day of
any calendar month, or if such 25th
day is
not a Business Day, the Business Day immediately following such 25th
day,
commencing in May 2006.
“Due
Date”: With respect to each Mortgage Loan and any Distribution Date, the first
day of the calendar month in which such Distribution Date occurs on which the
Monthly Payment for such Mortgage Loan was due (or, in the case of any Mortgage
Loan under the 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), exclusive of any days of grace.
“Due
Period”: With respect to any Distribution Date, the period commencing on the
second day of the month preceding the month in which such Distribution Date
occurs and ending on the first day of the month in which such Distribution
Date
occurs.
“Eligible
Account”: Any of (i) an account or accounts maintained with a federal or state
chartered depository institution or trust company the short-term unsecured
debt
obligations of which (or, in the case of a depository institution or trust
company that is the principal subsidiary of a holding company, the short-term
unsecured debt obligations of such holding company) are rated A-1+ by S&P,
F-1 by Fitch and P-1 by Xxxxx’x (or comparable ratings if S&P, Fitch and
Xxxxx’x are not the Rating Agencies) at the time any amounts are held on deposit
therein, (ii) an account or accounts the deposits in which are fully insured
by
the FDIC up to the insured amount, (iii) a trust account or accounts maintained
with the trust department of a federal or state chartered depository
institution, national banking association or trust company acting in its
fiduciary capacity or (iv) an account otherwise acceptable to each Rating Agency
without reduction or withdrawal of their then current ratings of the
Certificates as evidenced by a letter from each Rating Agency to the Trustee
and
the NIMS Insurer. Eligible Accounts may bear interest.
“ERISA”:
The Employee Retirement Income Security Act of 1974, as amended.
“Escrow
Account”: The account or accounts created and maintained pursuant to Section
3.09.
“Escrow
Payments”: The amounts constituting ground rents, taxes, assessments, water
rates, fire and hazard insurance premiums and other payments required to be
escrowed by the Mortgagor with the mortgagee pursuant to any Mortgage
Loan.
“Excess
Overcollateralized Amount”: With respect to the Fixed Rate Certificates and the
Floating Rate Certificates and any Distribution Date, the excess, if any, of
the
sum of (i) the Overcollateralized Amount for such Distribution Date, assuming
that 100% of the Principal Remittance Amount is applied as a principal payment
on such Distribution Date and (ii) any amounts received under the Interest
Rate
Swap Agreement for such purpose over (iii) the Overcollateralization Target
Amount for such Distribution Date.
“Extra
Principal Distribution Amount”: With respect to any Distribution Date, the
lesser of (x) the Monthly Interest Distributable Amount payable on the Class
C
Certificates on such Distribution Date as reduced by Realized Losses allocated
thereto with respect to such Distribution Date pursuant to Section 4.08 and
(y)
the Overcollateralization Deficiency Amount for such Distribution
Date.
“Xxxxxx
Xxx”: Federal National Mortgage Association 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
Originator, the Seller or the Servicer pursuant to or as contemplated by Section
2.03, Section 3.16(c) or Section 10.01), a determination made by the Servicer
that all Insurance Proceeds, Liquidation Proceeds and other payments or
recoveries which the Servicer, in its reasonable good faith judgment, expects
to
be finally recoverable in respect thereof have been so recovered. The Servicer
shall maintain records, prepared by a Servicing Officer, of each Final Recovery
Determination made thereby.
“Fitch”:
Fitch Ratings, or its successor in interest.
“Fixed
Rate Certificates”: The Class B-3 Certificates.
“Fixed-Rate
Mortgage Loan”: A first lien or second lien Mortgage Loan which provides for a
fixed Mortgage Rate payable with respect thereto. The Fixed-Rate Mortgage Loans
are identified as such on the Mortgage Loan Schedule.
“Fixed
Swap Payment”: With respect to any Distribution Date, a fixed amount equal to
the related amount set forth in the Interest Rate Swap Agreement.
“Floating
Rate Certificates”: Any Class A Certificate, Mezzanine Certificate or Class B
Certificate (other than the Class B-3 Certificates).
“Floating
Swap Payment”: With respect to any Distribution Date, a floating amount equal to
the product of (i) Swap LIBOR, (ii) the related Base Calculation Amount
(as
defined in the Interest Rate Swap Agreement),
(iii)
250 and (iv) a fraction, the numerator of which is the actual number of days
elapsed from and including the previous Floating Rate Payer Payment Date (as
defined in the Interest Rate Swap Agreement) to but excluding the current
Floating Rate Payer Payment (or, for the first Floating Rate Payer Payment
Date,
the actual number of days elapsed from the Closing Date to but excluding the
first Floating Rate Payer Payment Date), and the denominator of which is
360.
“Formula
Rate”: For any Distribution Date and the Floating Rate Certificates, the lesser
of (a) the sum of (i) LIBOR plus (ii) the related Certificate Margin and (b)
the
Maximum Cap Rate.
“Xxxxxxx
Mac”: The Federal Home Loan Mortgage Corporation, or any successor
thereto.
“Gross
Margin”: With respect to each Adjustable-Rate Mortgage Loan, the fixed
percentage set forth in the related Mortgage Note that is added to the Index
on
each Adjustment Date in accordance with the terms of the related Mortgage Note
used to determine the Mortgage Rate for such Mortgage Loan.
“Group
I
Allocation Percentage”: With respect to any Distribution Date, the percentage
equivalent of a fraction, the numerator of which is (i) the Group I Principal
Remittance Amount for such Distribution Date, and the denominator of which
is
(ii) the Principal Remittance Amount for such Distribution Date.
“Group
I
Basic Principal Distribution Amount”: With respect to any Distribution Date, the
excess of (i) the Group I Principal Remittance Amount for such Distribution
Date
over (ii)(a) the Overcollateralization Release Amount, if any, for such
Distribution Date multiplied by (b) the Group I Allocation
Percentage.
“Group
I
Certificates”: The Class I-A-1 Certificates.
“Group
I
Interest Remittance Amount”: With respect to any Distribution Date, that portion
of the Available Funds for such Distribution Date attributable to interest
received or advanced with respect to the Group I Mortgage Loans.
“Group
I
Mortgage Loan”: A Mortgage Loan assigned to Loan Group I with a Stated Principal
Balance at origination that conforms to Xxxxxx Xxx and Xxxxxxx Mac loan limits.
The aggregate principal balance of the Group I Mortgage Loans as of the Cut-off
Date is equal to $438,288,546.34.
“Group
I
Principal Distribution Amount”: With respect to any Distribution Date, the sum
of (i) the Group I Basic Principal Distribution Amount for such Distribution
Date and (ii)(a) the Extra Principal Distribution Amount for such Distribution
Date multiplied by (b) the Group I Allocation Percentage.
“Group
I
Principal Remittance Amount”: With respect to any Distribution Date, that
portion of Available Funds equal to the sum of (i) each scheduled payment of
principal collected or advanced on the Group I Mortgage Loans by the Servicer
that were due during the related Due Period, (ii) the principal portion of
all
full Principal Prepayments of the Group I Mortgage Loans applied by the Servicer
during the related Prepayment Period, (iii) the principal portion of all related
partial Principal Prepayments, Net Liquidation Proceeds, Insurance Proceeds
and
Subsequent Recoveries received during the prior calendar month with respect
to
the Group I Mortgage Loans, (iv) that portion of the Purchase Price,
representing principal of any repurchased Group I Mortgage Loan, deposited
to
the Collection Account during the prior calendar month, (v) the principal
portion of any related Substitution Adjustments deposited in the Collection
Account during the prior calendar month with respect to the Group I Mortgage
Loans and (vi) on the Distribution Date on which the Trust Fund is to be
terminated pursuant to Section 10.01, that portion of the Termination Price,
in
respect of principal on the Group I Mortgage Loans.
“Group
I
Senior Principal Distribution Amount”: The excess of (x) the Certificate
Principal Balance of the Group I Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i) 52.80% and
(ii)
the aggregate Stated Principal Balance of the Group I Mortgage Loans as of
the
last day of the related Due Period (after giving effect to scheduled payments
of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and (B) the aggregate Stated Principal Balance of the Group I Mortgage
Loans as of the last day of the related Due Period (after giving effect to
scheduled payments of principal due during the related Due Period, to the extent
received or advanced, and unscheduled collections of principal received during
the related Prepayment Period) minus the related Overcollateralization
Floor.
“Group
II
Allocation Percentage”: With respect to any Distribution Date, the percentage
equivalent of a fraction, the numerator of which is (i) the Group II Principal
Remittance Amount for such Distribution Date, and the denominator of which
is
(ii) the Principal Remittance Amount for such Distribution Date.
“Group
II
Basic Principal Distribution Amount”: With respect to any Distribution Date, the
excess of (i) the Group II Principal Remittance Amount for such Distribution
Date over (ii)(a) the Overcollateralization Release Amount, if any, for such
Distribution Date multiplied by (b) the Group II Allocation
Percentage.
“Group
II
Certificates”: Any Class II-A-1 Certificate, Class II-A-2 Certificate, Class
II-A-3 Certificate or Class II-A-4 Certificate.
“Group
II
Interest Remittance Amount”: With respect to any Distribution Date, that portion
of the Available Funds for such Distribution Date attributable to interest
received or advanced with respect to the Group II Mortgage Loans.
“Group
II
Mortgage Loan”: A Mortgage Loan assigned to Loan Group II with a Stated
Principal Balance at origination that may or may not conform to Xxxxxx Mae
and
Xxxxxxx Mac loan limits. The aggregate principal balance of the Group II
Mortgage Loans as of the Cut-off Date is equal to $571,694,015.47.
“Group
II
Principal Distribution Amount”: With respect to any Distribution Date, the sum
of (i) the Group II Basic Principal Distribution Amount for such Distribution
Date and (ii)(a) the Extra Principal Distribution Amount for such Distribution
Date multiplied by (b) the Group II Allocation Percentage.
“Group
II
Principal Remittance Amount”: With respect to any Distribution Date, that
portion of Available Funds equal to the sum of (i) each scheduled payment of
principal collected or advanced on the Group II Mortgage Loans by the Servicer
that were due during the related Due Period, (ii) the principal portion of
all
full Principal Prepayments of the Group II Mortgage Loans applied by the
Servicer during the related Prepayment Period, (iii) the principal portion
of
all related partial Principal Prepayments, Net Liquidation Proceeds, Insurance
Proceeds and Subsequent Recoveries received during the prior calendar month
with
respect to the Group II Mortgage Loans, (iv) that portion of the Purchase Price,
representing principal of any repurchased Group II Mortgage Loan, deposited
to
the Collection Account during the prior calendar month, (v) the principal
portion of any related Substitution Adjustments deposited in the Collection
Account during the prior calendar month with respect to the Group II Mortgage
Loans and (vi) on the Distribution Date on which the Trust Fund is to be
terminated pursuant to Section 10.01, that portion of the Termination Price,
in
respect of principal on the Group II Mortgage Loans.
“Group
II
Senior Principal Distribution Amount”: The excess of (x) the aggregate
Certificate Principal Balance of the Group II Certificates immediately prior
to
such Distribution Date over (y) the lesser of (A) the product of (i) 52.80%
and
(ii) the aggregate Stated Principal Balance of the Group II Mortgage Loans
as of
the last day of the related Due Period (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent received
or advanced, and unscheduled collections of principal received during the
related Prepayment Period) and (B) the aggregate Stated Principal Balance of
the
Group II Mortgage Loans as of the last day of the related Due Period (after
giving effect to scheduled payments of principal due during the related Due
Period, to the extent received or advanced, and unscheduled collections of
principal received during the related Prepayment Period) minus the related
Overcollateralization Floor.
“Highest
Priority”: As
of any
date of determination, the Class of Mezzanine Certificates or Class B
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 of decreasing priority: Class X-0, Xxxxx X-0, Class M-3, Class
M-4, Class M-5, Class M-6, Class M-7, Class M-8, Class M-9, Class B-1, Class
B-2
and Class B-3 Certificates.
“Indenture”:
An indenture relating to the issuance of notes secured by the Class C
Certificates, the Class P Certificates and/or Residual Certificates (or any
portion thereof) which may or may not be guaranteed by the NIMS
Insurer.
“Independent”:
When used with respect to any specified Person, any such Person who (a) is
in
fact independent of the Depositor, the Servicer and their respective Affiliates,
(b) does not have any direct financial interest in or any material indirect
financial interest in the Depositor or the Servicer or any Affiliate thereof,
and (c) is not connected with the Depositor or the Servicer 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 or the Servicer 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 or the Servicer 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 any of the REMICs created hereunder
within the meaning of Section 856(d)(3) of the Code if such REMIC 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 each such
REMIC does not receive or derive any income from such Person and provided that
the relationship between such Person and such REMIC 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 with respect to each
related Adjustment Date, the index as specified in the related Mortgage
Note.
“Initial
Certificate Principal Balance”: With respect to any Regular Certificate, the
amount designated “Initial Certificate Principal Balance” on the face
thereof.
“Insurance
Proceeds”: Proceeds of any title policy, hazard policy or other insurance policy
covering a Mortgage Loan to the extent such proceeds are received by the
Servicer and 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
Determination Date”: With respect to the Class A Certificates, the Mezzanine
Certificates and the Class B Certificates and each Accrual Period, the second
LIBOR Business Day preceding the commencement of such Accrual
Period.
“Interest
Rate Swap Agreement”: The 1992 ISDA Master Agreement (Multicurrency-Cross
Border) dated as of April 13, 2006 (together with the schedule thereto, the
Master Agreement) between HSBC Bank USA, National Association and the Trustee
(in its capacity as Supplemental Interest Trust Trustee).
“Late
Collections”: With respect to any Mortgage Loan, all amounts received subsequent
to the Determination Date immediately following any related 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 on a contractual basis for
such Due Period and not previously recovered.
“LIBOR”:
With respect to each Accrual Period, the rate determined by the Trustee on
the
related Interest Determination Date on the basis of the London interbank offered
rate for one-month United States dollar deposits, as such rate appears on the
Telerate Page 3750, as of 11:00 a.m. (London time) on such Interest
Determination Date. If such rate does not appear on Telerate Page 3750, the
rate
for such Interest Determination Date will be determined on the basis of the
offered rates of the Reference Banks for one-month United States dollar
deposits, as of 11:00 a.m. (London time) on such Interest Determination Date.
The Trustee will request the principal London office of each of the Reference
Banks to provide a quotation of its rate. On such Interest Determination Date,
LIBOR for the related Accrual Period will be established by the Trustee as
follows:
(i) If
on
such Interest Determination Date two or more Reference Banks provide such
offered quotations, LIBOR for the related Accrual Period shall be the arithmetic
mean of such offered quotations (rounded upwards if necessary to the nearest
whole multiple of 1/16 of 1%); and
(ii) If
on
such Interest Determination Date fewer than two Reference Banks provide such
offered quotations, LIBOR for the related Accrual Period shall be the higher
of
(i) LIBOR as determined on the previous Interest Determination Date and (ii)
the
Reserve Interest Rate.
“LIBOR
Business Day”: Any day on which banks in London, England and The City of New
York are open and conducting transactions in foreign currency and
exchange.
“Liquidated
Mortgage Loan”: As to any Distribution Date, any Mortgage Loan in respect of
which the Servicer has determined, in accordance with the servicing procedures
specified herein, as of the end of the related Prepayment Period, that all
Liquidation Proceeds which it expects to recover with respect to the liquidation
of the Mortgage Loan or disposition of the related REO Property have been
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 the Trust Fund
by
reason of its being purchased, sold or replaced pursuant to or as contemplated
by Section 2.03, Section 3.16(c) or Section 10.01. 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 the
Trust
Fund by reason of its being sold or purchased pursuant to Section 3.23 or
Section 10.01.
“Liquidation
Proceeds”: The amount (other than 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 by means of 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 10.01.
“Loan-to-Value
Ratio”: As of any date and as to any Mortgage Loan, the fraction, expressed as a
percentage, the numerator of which is the Stated Principal Balance of the
Mortgage Loan and the denominator of which is the Value of the related Mortgaged
Property.
“Loan
Group”: Either Loan Group I or Loan Group II, as the context
requires.
“Loan
Group I”: The group of Mortgage Loans identified in the Mortgage Loan Schedule
as having been assigned to Loan Group I.
“Loan
Group II”: The group of Mortgage Loans identified in the Mortgage Loan Schedule
as having been assigned to Loan Group II.
“Losses”:
As defined in Section 9.03.
“Lost
Note Affidavit”: With respect to any Mortgage Loan as to which the original
Mortgage Note has been permanently lost, misplaced or destroyed and has not
been
replaced, an affidavit from the Originator certifying that the original Mortgage
Note has been lost, misplaced or destroyed (together with a copy of the related
Mortgage Note) and indemnifying the Trust against any loss, cost or liability
resulting from the failure to deliver the original Mortgage Note in the form
of
Exhibit H hereto.
“Majority
Certificateholders”: The Holders of Certificates evidencing at least 51% of the
Voting Rights.
“Marker
Rate”: With respect to the Class C Certificates and any Distribution Date, a per
annum rate equal to two (2) times the weighted average of the Uncertificated
REMIC 2 Pass-Through Rates for each REMIC 2 Regular Interest (other than REMIC
2
Regular Interest LTAA, REMIC 2 Regular Interest LTIO and REMIC 2 Regular
Interest LTP) subject to a cap (for each such REMIC 2 Regular Interest other
than REMIC 2 Regular Interest LTZZ) equal to the Pass-Through Rate for the
Corresponding Certificate for the purpose of this calculation; with the rate
on
REMIC 2 Regular Interest LTZZ subject to a cap of zero for the purpose of this
calculation; provided, however, that solely for this purpose, calculations
of
the Uncertificated REMIC 2 Pass-Through Rate and the related caps with respect
to each such REMIC 2 Regular Interest, other than REMIC 2 Regular Interest
LTB3
and REMIC 2 Regular Interest LTZZ, shall be multiplied by a fraction, the
numerator of which is the actual number of days in the Interest Accrual Period
and the denominator of which is 30.
“Master
Agreement”: The Master Mortgage Loan Purchase and Interim Servicing Agreement,
dated as of December 1, 2006, between Fremont Investment & Loan and
Greenwich Capital Financial Products, Inc..
“Maximum
Cap Rate”: For any Distribution Date and any Class of the Floating Rate
Certificates, a per annum rate equal to the product of (i) the sum of (x) the
weighted average of the Adjusted Net Maximum Mortgage Rates of the Mortgage
Loans, weighted on the basis of the outstanding Principal Balances of the
Mortgage Loans as of the first day of the month preceding the month of such
Distribution Date and (y) an amount, expressed as a percentage, equal to a
fraction, the numerator of which is equal to the Net Swap Payment made by the
Swap Provider and the denominator of which is equal to the aggregate Stated
Principal Balance of the Mortgage Loans, multiplied by 12 and (ii) a fraction,
the numberator of which is 30 and the denominator of which is the actual number
of days elapsed in the related Accrual Period.
“Maximum
Uncertificated Accrued Interest Deferral Amount”: With respect to any
Distribution Date, the excess of (a) accrued interest at the Uncertificated
REMIC 2 Pass-Through Rate applicable to REMIC 2 Regular Interest LTZZ for such
Distribution Date on a balance equal to the Uncertificated Principal Balance
of
REMIC 2 Regular Interest LTZZ minus the REMIC 2 Overcollateralization Amount,
in
each case for such Distribution Date, over (b) the sum of the Uncertificated
Accrued Interest on REMIC 2 Regular Interest LTIA1, REMIC 2 Regular Interest
LTIIA1, REMIC 2 Regular Interest LTIIA2, REMIC 2 Regular Interest LTIIA3, REMIC
2 Regular Interest LTIIA4, REMIC 2 Regular Interest LTM1, REMIC 2 Regular
Interest LTM2, REMIC 2 Regular Interest LTM3, REMIC 2 Regular Interest LTM4,
REMIC 2 Regular Interest LTM5, REMIC 2 Regular Interest LTM6, REMIC 2 Regular
Interest LTM7, REMIC 2 Regular Interest LTM8, REMIC 2 Regular Interest LTM9,
REMIC 2 Regular Interest LTB1, REMIC 2 Regular Interest LTB2 and REMIC 2 Regular
Interest LTB3 with the rate on each such REMIC 2 Regular Interest subject to
a
cap equal to (i) the Pass-Through Rate for the related Corresponding Certificate
for the purpose of this calculation; provided, however, that for this purpose,
calculations of the Uncertificated REMIC 2 Pass-Through Rate and the related
caps with respect to each such REMIC 2 Regular Interest (other than REMIC 2
Regular Interest LTB3 and REMIC 2 Regular Interest LTZZ) shall be multiplied
by
a fraction, the numerator of which is the actual number of days elapsed in
the
related Accrual Period and the denominator of which is 30.
“Maximum
Mortgage Rate”: With respect to each Adjustable-Rate Mortgage Loan, the
percentage set forth in the related Mortgage Note as the Maximum Mortgage Rate
thereunder.
“MERS”:
Mortgage Electronic Registration Systems, Inc., a corporation organized and
existing under the laws of the State of Delaware, or any successor
thereto.
“MERS®
System”: The system of recording transfers of Mortgages electronically
maintained by MERS.
“Mezzanine
Certificate”: Any Class M-1 Certificate, Class M-2 Certificate, Class M-3
Certificate, Class M-4 Certificate, Class M-5 Certificate, Class M-6
Certificate, Class M-7 Certificate, Class M-8 Certificate and Class M-9
Certificate.
“MIN”:
The Mortgage Identification Number for Mortgage Loans registered with MERS
on
the MERS® System.
“Minimum
Mortgage Rate”: With respect to each Adjustable-Rate Mortgage Loan, the
percentage set forth in the related Mortgage Note as the Minimum Mortgage Rate
thereunder.
“MOM
Loan”: With respect to any applicable Mortgage Loan, MERS acting as the
mortgagee of such Mortgage Loan, solely as nominee for the originator of such
Mortgage Loan and its successors and assigns, at the origination
thereof.
“Monthly
Interest Distributable Amount”: With respect to any Class of the Class A
Certificates, Class B Certificates, Mezzanine Certificates and Class C
Certificates and any Distribution Date, the amount of interest accrued during
the related Accrual Period at the related Pass-Through Rate on the Certificate
Principal Balance (or Notional Amount in the case of the Class C Certificates)
of such Class immediately prior to such Distribution Date, in each case, reduced
by any Net Prepayment Interest Shortfalls, Relief Act Interest
Shortfalls.
“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, (ii) any modifications to a Mortgage Loan
pursuant to Section 3.07 and (iii) 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”:
The mortgage, deed of trust or other instrument creating a first or second
lien
on, or first or second priority security interest in, a Mortgaged Property
securing a Mortgage Note.
“Mortgage
File”: The mortgage 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 pursuant to
Section 2.01 or Section 2.03(d) as from time to time held as a part of the
Trust
Fund, the Mortgage Loans so held being identified in the Mortgage Loan
Schedule.
“Mortgage
Loan Schedule”: As of any date, the list of Mortgage Loans included in REMIC 2
on such date, separately identifying the Group I Mortgage Loans and the Group
II
Mortgage Loans, attached hereto as Exhibit D. The Mortgage Loan Schedule shall
be prepared by the Depositor and shall set forth the following information
with
respect to each Mortgage Loan, as applicable:
(1) the
Mortgage Loan identifying number;
(2) [reserved];
(3) the
state
and zip code of the Mortgaged Property;
| (4) |
a code indicating whether the Mortgaged Property was represented
by the
borrower, at the time of origination, as being
owner-occupied;
|
(5) the
type
of Residential Dwelling constituting the Mortgaged Property;
(6) the
original months to maturity;
| (7) |
the stated remaining months to maturity from the Cut-off Date based
on the
original amortization schedule;
|
(8) the
Loan-to-Value Ratio at origination;
(9) the
Mortgage Rate in effect immediately following the Cut-off Date;
| (10) |
the date on which the first Monthly Payment was due on the Mortgage
Loan;
|
(11) the
stated maturity date;
(12) the
amount of the Monthly Payment at origination;
| (13) |
the amount of the Monthly Payment due on the first Due Date after
the Cut-
off Date;
|
| (14) |
the last Due Date on which a Monthly Payment was actually applied
to the
unpaid Stated Principal Balance;
|
(15) the
original principal amount of the Mortgage Loan;
| (16) |
the Stated Principal Balance of the Mortgage Loan as of the Close
of
Business on the Cut-off Date;
|
| (17) |
a code indicating the purpose of the Mortgage Loan (i.e., purchase
financing, rate/term refinancing, cash-out
refinancing);
|
(18) the
Mortgage Rate at origination;
| (19) |
a code indicating the documentation program (i.e., full documentation,
limited income verification, no income verification, alternative
income
verification);
|
(20) the
risk
grade;
(21) the
Value
of the Mortgaged Property;
(22) the
sale
price of the Mortgaged Property, if applicable;
| (23) |
the actual unpaid principal balance of the Mortgage Loan as of the
Cut-off
Date;
|
(24) the
type
and term of the related Prepayment Charge;
| (25) |
with respect to any Adjustable-Rate Mortgage Loan, the rounding code,
the
Minimum Mortgage Rate, the Maximum Mortgage Rate, the Gross Margin,
the
next Adjustment Date and the Periodic Rate
Cap;
|
(26) the
program code;
(27) the
Loan
Group;
(28) the
MIN,
if applicable, and
(29) the
lien
priority.
The
Mortgage Loan Schedule shall set forth the following information, with respect
to the Mortgage Loans in the aggregate and for each Loan Group as of the Cut-off
Date: (1) the number of Mortgage Loans (separately identifying the number of
Fixed-Rate Mortgage Loans and the number of Adjustable-Rate Mortgage Loans);
(2)
the current Principal Balance of the Mortgage Loans; (3) the weighted average
Mortgage Rate of the Mortgage Loans and (4) the weighted average remaining
term
to maturity of the Mortgage Loans. The Mortgage Loan Schedule shall be amended
from time to time by the Servicer in accordance with the provisions of this
Agreement. With respect to any Qualified Substitute Mortgage Loan, 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. On the Closing Date,
the
Depositor will deliver to the Servicer, as of the Cut-off Date, an electronic
copy of the Mortgage Loan Schedule.
“Mortgage
Note”: The original executed note or other evidence of indebtedness evidencing
the indebtedness of a Mortgagor under a Mortgage Loan.
“Mortgage
Pool”: The pool of Mortgage Loans, identified on Exhibit D from time to time,
and any REO Properties acquired in respect thereof.
“Mortgage
Rate”: With respect to each Fixed-Rate Mortgage Loan, the rate set forth in the
related Mortgage Note. With respect to each Adjustable-Rate 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 (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, to equal the sum, rounded to the next highest or nearest
0.125% (as provided in the Mortgage Note), of the Index, determined as set
forth
in the related Mortgage Note, plus the related Gross Margin subject to the
limitations set forth in the related Mortgage Note. With respect to each
Mortgage Loan that becomes an REO Property, as of any date of determination,
the
annual rate determined in accordance with the immediately preceding sentence
as
of the date such Mortgage Loan became an REO Property.
“Mortgaged
Property”: The underlying property securing a Mortgage Loan, including any REO
Property, consisting of a fee simple estate in a parcel of real property
improved by a Residential Dwelling.
“Mortgagor”:
The obligor on a Mortgage Note.
“Net
Liquidation Proceeds”: With respect to any Liquidated Mortgage Loan or any other
disposition of related Mortgaged Property (including REO Property) the related
Liquidation Proceeds and Insurance Proceeds net of Advances, Servicing Advances,
Servicing Fees and any other accrued and unpaid servicing fees or ancillary
income received and retained in connection with the liquidation of such Mortgage
Loan or Mortgaged Property.
“Net
Monthly Excess Cashflow”: With respect to each Distribution Date, the sum of (a)
any Overcollateralization Release Amount for such Distribution Date and (b)
the
excess of (x) Available Funds for such Distribution Date over (y) the sum for
such Distribution Date of (A) the Monthly Interest Distributable Amounts for
the
Class A Certificates, Class B Certificates and Mezzanine Certificates, (B)
the
Unpaid Interest Shortfall Amounts for the Class A Certificates and (C) the
Principal Remittance Amount.
“Net
Mortgage Rate”: With respect to any Mortgage Loan (or the related REO Property),
as of any date of determination, a per annum rate of interest equal to the
then
applicable Mortgage Rate for such Mortgage Loan minus the Servicing Fee
Rate.
“Net
Prepayment Interest Shortfall”: With respect to any Distribution Date, the
excess, if any, of any Prepayment Interest Shortfalls for such date over the
related Compensating Interest.
“Net
Swap
Payment”: In the case of payments made by the Trust, the excess, if any, of (x)
the Fixed Swap Payment over (y) the Floating Swap Payment and in the case of
payments made by the Swap Provider, the excess, if any, of (x) the Floating
Swap
Payment over (y) the Fixed Swap Payment. In each case, the Net Swap Payment
shall not be less than zero.
“Net
WAC
Rate”: For any Distribution Date with respect to the Fixed Rate Certificates and
the Floating Rate Certificates, a per annum rate (which rate, in the case of
the
Floating Rate Certificates, shall be multiplied by a fraction, the numerator
of
which is 30 and the denominator of which is the actual number of days elapsed
in
the related Accrual Period) equal to the weighted average of the Adjusted Net
Mortgage Rates of the Mortgage Loans, weighted based on their outstanding Stated
Principal Balances as of the first day of the calendar month preceding the
month
in which the Distribution Date occurs minus (i) an amount, expressed as a
percentage, equal to the product of (x) the Net Swap Payment, if any, paid
by
the Trust for such Distribution Date divided by the aggregate Stated Principal
Balance of the Mortgage Loans and (y) 12 and (ii) an amount, expressed as a
percentage, equal to the product of (x) the Swap Termination Payment, if any,
due from the Trust (other than any Swap Termination Payment resulting from
a
Swap Provider Trigger Event) for such Distribution Date divided by the aggregate
Stated Principal Balance of the Mortgage Loans, and (y) 12. For federal income
tax purposes, the equivalent of the foregoing shall be expressed as a per annum
rate (which rate, in the case of the Floating Rate Certificates, shall be
multiplied by a fraction, the numerator of which is 30 and the denominator
of
which is the actual number of days elapsed in the related Accrual Period) equal
to the weighted average of the Uncertificated REMIC 2 Pass-Through Rates on
each
REMIC 2 Regular Interest (other than REMIC 2 Regular Interests LTIO and LTP),
weighted on the basis of the Uncertificated Principal Balance of each such
REMIC
2 Regular Interest.
“Net
WAC
Rate Carryover Amount”: With respect the Fixed Rate Certificates and the
Floating Rate Certificates and any Distribution Date, the sum of (A) the
positive excess of (i) the amount of interest accrued on such Class of
Certificates on such Distribution Date calculated at the related Pass-Through
Rate (without regard to the related Net WAC Rate), over (ii) the amount of
interest accrued on such Class of Certificates at the Net WAC Rate for such
Distribution Date and (B) the Net WAC Rate Carryover Amount for the previous
Distribution Date not previously paid, together with interest thereon at a
rate
equal to the related Pass-Through Rate (without regard to the Net WAC Rate)
for
the most recently ended Accrual Period.
“Net
WAC
Rate Carryover Reserve Account”: The account established and maintained pursuant
to Section 4.07.
“New
Lease”: Any lease of REO Property entered into on behalf of the Trust, including
any lease renewed or extended on behalf of the Trust if the Trust has the right
to renegotiate the terms of such lease.
“NIMS
Insurer”: Any insurer that is guaranteeing certain payments under notes secured
by collateral which includes all or a portion of the Class C Certificates,
the
Class P Certificates and/or the Residual Certificates.
“Nonrecoverable
Advance”: Any Advance or 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 be ultimately recoverable from
Late
Collections, Insurance Proceeds, Liquidation Proceeds or condemnation proceeds
on such Mortgage Loan or REO Property as provided herein.
“Notional
Amount”: Immediately prior to any Distribution Date with respect to the Class C
Interest, the aggregate of the Uncertificated Principal Balance of the REMIC
2
Regular Interests (other than REMIC 2 Regular Interest LTP).
“Offered
Certificates”: The Class A Certificates and the Mezzanine Certificates offered
to the public pursuant to the Prospectus Supplement.
“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),
or by the Treasurer, the Secretary, or one of the assistant treasurers or
assistant secretaries of the Servicer, the Originator or the Depositor, as
applicable.
“Opinion
of Counsel”: A written opinion of counsel, who may, without limitation, be a
salaried counsel for the Depositor or the Servicer, acceptable to the Trustee,
except that any opinion of counsel relating to (a) the qualification of any
REMIC as a REMIC or (b) compliance with the REMIC Provisions must be an opinion
of Independent counsel.
“Optional
Termination Date”: The first Distribution Date on which the Terminator may opt
to terminate the Trust Fund pursuant to Section 10.01.
“Original
Class Certificate Principal Balance”: With respect to the Class A Certificates,
the Class B Certificates, the Mezzanine Certificates, the Class B Certificates,
the Class C Certificates, the Class C Interest, the Class P Certificates and
the
Class P Interest, the corresponding amounts set forth opposite such Class above
in the Preliminary Statement.
“Originator”:
Fremont Investment & Loan, or its successor in interest.
“Overcollateralization
Deficiency Amount”: With respect to any Distribution Date, the amount, if any,
by which the Overcollateralization Target Amount exceeds the Overcollateralized
Amount on such Distribution Date (assuming that 100% of the Principal Remittance
Amount is applied as a principal distribution on such Distribution Date).
“Overcollateralization
Floor”: With respect to the Group I Certificates, $2,191,442.73. With respect to
the Group II Certificates, $2,858,470.08. With respect to the Mezzanine
Certificates, $5,049,912.81.
“Overcollateralization
Release Amount”: With respect to any Distribution Date, the lesser of (x) the
Principal Remittance Amount for such Distribution Date and (y) the Excess
Overcollateralized Amount.
“Overcollateralization
Target Amount”: With
respect to any Distribution Date, (i) prior to the Stepdown Date, an amount
equal to 1.45% of the aggregate 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 (A) 2.90% of the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period (after giving effect to scheduled payments of principal due during the
related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period) and
(B)
an
amount
equal to 0.50% of the aggregate Stated Principal Balance of the Mortgage Loans
as of the Cut-off Date and
(iii)
on or after the Stepdown Date 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 Floating Rate
Certificates and the Fixed Rate Certificates to zero, the Overcollateralization
Target Amount shall be zero.
“Overcollateralized
Amount”: For any Distribution Date, the amount equal to (i) the aggregate Stated
Principal Balance of the Mortgage Loans as of the last day of the related Due
Period (after giving effect to scheduled payments of principal due during the
related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period) minus
(ii) the sum of the aggregate Certificate Principal Balance of the Class A
Certificates, the Class B Certificates and Mezzanine Certificates and the Class
P Certificates as of such Distribution Date after giving effect to distributions
to be made on such Distribution Date.
“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 Fixed Rate Certificates and any Distribution Date,
the lesser of (x) the related fixed rate per annum set forth below for such
Distribution Date and (y) the Net WAC Rate for such Distribution
Date.
|
Class
|
Fixed
Rate
|
|
|
(1)
|
(2)
|
|
|
B-3
|
5.0000%
per annum
|
5.5000%
per annum
|
__________
(1) For
the
Accrual Period for each Distribution Date on or prior to the Optional
Termination Date.
(2) For
each
other Accrual Period.
With
respect to each Distribution Date and each Class of Floating Rate Certificates,
a floating rate equal to the lesser of (i) the related Formula Rate and (ii)
the
Net WAC Rate with respect to such Distribution Date.
With
respect to the Class C Interest and any Distribution Date, a per annum rate
equal to the percentage equivalent of a fraction, the numerator of which is
(x)
the sum of (i) 100% of the interest on REMIC 2 Regular Interest LTP and (ii)
interest on the Uncertificated Balance of each REMIC 2 Regular Interest listed
in clause (y) at a rate equal to the related Uncertificated REMIC 2 Pass-Through
Rate minus the Marker Rate and the denominator of which is (y) the aggregate
Uncertificated Principal Balance of REMIC 2 Regular Interests XXXX, XXXX0,
XXXXX0, LTIIA2, LTIIA3, LTIIA4, XXX0, XXX0, XXX0, XXX0, XXX0, XXX0, XXX0, LTM8,
LTM9, LTB1, LTB2, LTB3 and LTZZ.
The
Class
P Certificates, Class R Certificates and Class R-X Certificates will not accrue
interest and therefore will not have a Pass-Through Rate.
With
respect to the Class C Certificates, 100% of the interest distributable to
the
Class C Interest, expressed as a per annum rate.
The
Class
IO Interest shall not have a Pass-Through Rate, but interest for such Regular
Interest and each Distribution Date shall be an amount equal to 100% of the
amounts distributable to REMIC 2 Regular Interest LTIO for such Distribution
Date.
The
REMIC
6 Regular Interest SWAP IO shall not have a Pass-Through Rate, but interest
for
such Regular Interest and each Distribution Date shall be an amount equal to
100% of the amounts distributable to the Class IO Interest for such Distribution
Date.
“Paying
Agent”: Any paying agent appointed pursuant to Section 5.05.
“Percentage
Interest”: With respect to any Certificate (other than a Class C Certificates or
a Residual Certificate), a fraction, expressed as a percentage, the numerator
of
which is the Initial Certificate Principal Balance represented by such
Certificate and the denominator of which is the Original Class Certificate
Principal Balance of the related Class. With respect to a Residual Certificate
or Class C Certificate, the portion of the Class evidenced thereby, expressed
as
a percentage, as stated on the face of such Certificate; provided, however,
that
the sum of all such percentages for each such Classes totals 100%.
“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 NIMS Insurer, the Trustee
or any of their respective Affiliates or for which an Affiliate of the NIMS
Insurer or Trustee serves as an advisor:
(i) direct
obligations of, or obligations fully guaranteed as to timely payment of
principal and interest by, the United States or any agency or instrumentality
thereof, provided such obligations are backed by the full faith and credit
of
the United States;
(ii) (A)
demand and time deposits in, certificates of deposit of, bankers’ acceptances
issued by or federal funds sold by any depository institution or trust company
(including the Trustee or its agent acting in their respective commercial
capacities) incorporated under the laws of the United States of America or
any
state thereof and subject to supervision and examination by federal and/or
state
authorities, so long as, at the time of such investment or contractual
commitment providing for such investment, such depository institution or trust
company (or, if the only Rating Agency is S&P, in the case of the principal
depository institution in a depository institution holding company, debt
obligations of the depository institution holding company) or its ultimate
parent has a short-term uninsured debt rating in one of the two highest
available ratings of Xxxxx’x and the highest available rating category of Fitch
and S&P and provided that each such investment has an original maturity of
no more than 365 days; and provided further that, if the only Rating Agency
is
S&P and if the depository or trust company is a principal subsidiary of a
bank holding company and the debt obligations of such subsidiary are not
separately rated, the applicable rating shall be that of the bank holding
company; and, provided further that, if the original maturity of such short-
term obligations of a domestic branch of a foreign depository institution or
trust company shall exceed 30 days, the short-term rating of such institution
shall be A-1+ in the case of S&P if S&P is the Rating Agency; and (B)
any other demand or time deposit or deposit which is fully insured by the
FDIC;
(iii) repurchase
obligations with a term not to exceed 30 days with respect to any security
described in clause (i) above and entered into with a depository institution
or
trust company (acting as principal) rated F-1+ or higher by Fitch, P-1 by
Xxxxx’x and rated A-1+ or higher by S&P, provided, however, that collateral
transferred pursuant to such repurchase obligation must be of the type described
in clause (i) above and must (A) be valued daily at current market prices plus
accrued interest, (B) pursuant to such valuation, be equal, at all times, to
105% of the cash transferred by the Trustee in exchange for such collateral
and
(C) be delivered to the Trustee or, if the Trustee is supplying the collateral,
an agent for the Trustee, in such a manner as to accomplish perfection of a
security interest in the collateral by possession of certificated
securities;
(iv) securities
bearing interest or sold at a discount that are issued by any corporation
incorporated under the laws of the United States of America or any State thereof
and that are rated by S&P (and if rated by any other Rating Agency, also by
such other Rating Agency) in its highest long-term unsecured rating category
at
the time of such investment or contractual commitment providing for such
investment;
(v) commercial
paper (including both non-interest-bearing discount obligations and
interest-bearing obligations payable on demand or on a specified date not more
than 30 days after the date of acquisition thereof) that is rated by S&P
(and if rated by any other Rating Agency, also by such other Rating Agency)
in
its highest short-term unsecured debt rating available at the time of such
investment;
(vi) units
of
money market funds, including those money market funds managed or advised by
the
Trustee or its Affiliates, that have been rated “AAA” by Fitch (if rated by
Fitch), “Aaa” by Xxxxx’x and “AAAm” or “AAAm-G” by S&P; 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 in writing as a permitted investment of funds
backing securities having ratings equivalent to its highest initial rating
of
the Class A Certificates;
provided,
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 a non-U.S. Person.
“Person”:
Any individual, corporation, limited liability company, partnership, joint
venture, association, joint stock company, trust, unincorporated organization
or
government or any agency or political subdivision thereof.
“Plan”:
Any employee benefit plan or certain other retirement plans and arrangements,
including individual retirement accounts and annuities, Xxxxx plans and bank
collective investment funds and insurance company general or separate accounts
in which such plans, accounts or arrangements are invested, that are subject
to
ERISA or Section 4975 of the Code.
“Pool
Balance”: As of any date of determination, the aggregate Stated Principal
Balance of the Mortgage Loans in both Loan Groups as of such date.
“Prepayment
Assumption”: As defined in the Prospectus Supplement.
“Prepayment
Charge”: With respect to any Mortgage Loan, the charges or premiums, if any, due
in connection with a full or partial Principal Prepayment of such Mortgage
Loan
in accordance with the terms thereof (other than any Servicer Prepayment Charge
Payment Amount).
“Prepayment
Charge Schedule”: As of any date, the list of Prepayment Charges on the Mortgage
Loans included in the Trust Fund on such date, attached hereto as Schedule
I
(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
state
of origination of the related Mortgage Loan;
(iv) the
date
on which the first monthly payment was due on the related Mortgage
Loan;
(v) the
term
of the related Prepayment Charge; and
(vi) the
Stated Principal Balance of the related Mortgage Loan as of the Cut-off
Date.
The
Prepayment Charge Schedule shall be amended from time to time by the Servicer
in
accordance with the provisions of this Agreement and a copy of such amended
Prepayment Charge Schedule shall be furnished by the Servicer to the NIMS
Insurer.
“Prepayment
Interest Excess”: With respect to any Distribution Date, for each Mortgage Loan
that was the subject of a Principal Prepayment in full during the portion of
the
related Prepayment Period occurring between the first day and the 15th
day of
the calendar month in which such Distribution Date occurs, an amount equal
to
interest (to the extent received) at the applicable Net Mortgage Rate on the
amount of such Principal Prepayment for the number of days commencing on the
first day of the calendar month in which such Distribution Date occurs and
ending on the date on which such prepayment is so applied.
“Prepayment
Interest Shortfall”: With respect to any Distribution Date, for each Mortgage
Loan that was the subject of a Principal Prepayment during the portion of the
related Prepayment Period occurring from the first day of the related Prepayment
Period through the last day of the calendar month preceding the month in which
such Distribution Date occurs, an amount equal to one-month’s interest at the
applicable Net Mortgage Rate less any payments made by the Mortgagor on the
amount of such Principal Prepayment for the number of days commencing on the
date such Principal Prepayment is received and ending on the last day of the
calendar month preceding the month in which such Distribution Date
occurs.
“Prepayment
Period”: With respect to any Distribution Date, the period commencing on the
16th
day of
the calendar month preceding the month in which the related Distribution Date
occurs (or, in the case of the first Distribution Date, from April 1, 2006)
and
ending on the 15th
day of
the calendar month in which such Distribution Date occurs.
“Principal
Balance”: As to any Mortgage Loan other than a Liquidated Mortgage Loan, and any
day, the related Cut-off Date Principal Balance, minus all collections credited
against the Cut-off Date Principal Balance of any such Mortgage Loan. For
purposes of this definition, a Liquidated Mortgage Loan shall be deemed to
have
a Principal Balance equal to the Principal Balance of the related Mortgage
Loan
as of the final recovery of related Liquidation Proceeds and a Principal Balance
of zero thereafter. As to any REO Property and any day, the Principal Balance
of
the related Mortgage Loan immediately prior to such Mortgage Loan becoming
REO
Property minus any REO Principal Amortization received with respect thereto
on
or prior to such day.
“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 Group
I Principal Remittance Amount and the Group II Principal Remittance
Amount.
“Prospectus
Supplement”: That certain Prospectus Supplement dated April 10, 2006 relating to
the public offering of the Class A Certificates and the Mezzanine
Certificates.
“Purchase
Price”: With respect to any Mortgage Loan or REO Property to be purchased by the
Originator, the Seller or the Servicer pursuant to or as contemplated by Section
2.03, Section 3.16(c) or Section 10.01, and as confirmed by an Officers’
Certificate from the Originator or the Servicer to the Trustee, an amount equal
to the sum of (i) 100% of the Stated Principal Balance thereof as of the date
of
purchase (or such other price as provided in Section 10.01), (ii) in the case
of
(x) a Mortgage Loan, accrued interest on such Stated Principal Balance at the
applicable 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, and (y) an REO Property, the sum of (1)
accrued interest on such Stated Principal Balance at the applicable 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 4.04,
(iii) any unreimbursed Servicing Advances and Advances and any unpaid Servicing
Fees allocable to such Mortgage Loan or REO Property, (iv) any amounts
previously withdrawn from the Collection Account in respect of such Mortgage
Loan or REO Property pursuant to Section 3.23 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, the NIMS Insurer 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. With respect
to
the Originator and any Mortgage Loan or REO Property to be purchased pursuant
to
or as contemplated by Section 2.03 or 10.01, and as confirmed by a certificate
of an Officers’ Certificate of the Originator to the Trustee, an amount equal to
the amount set forth pursuant to the terms of the Master Agreement.
“Qualified
Insurer”: Any insurance company acceptable to Xxxxxx Xxx.
“Qualified
Substitute Mortgage Loan”: With respect to the Seller, 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 (or in the case of a substitution of more than one mortgage
loan for a Deleted Mortgage Loan, an aggregate 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, and not more than 5%
less
than, the outstanding 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) if the
Qualified Substitute Mortgage Loan is an Adjustable-Rate Mortgage Loan, have
a
Maximum Mortgage Rate not less than the Maximum Mortgage Rate on the Deleted
Mortgage Loan, (iv) if the Qualified Substitute Mortgage Loan is an
Adjustable-Rate Mortgage Loan, have a Minimum Mortgage Rate not less than the
Minimum Mortgage Rate of the Deleted Mortgage Loan, (v) if the Qualified
Substitute Mortgage Loan is an Adjustable-Rate Mortgage Loan, have a Gross
Margin equal to or greater than the Gross Margin of the Deleted Mortgage Loan,
(vi) if the Qualified Substitute Mortgage Loan is an Adjustable-Rate Mortgage
Loan, have a next Adjustment Date not more than two months later than the next
Adjustment Date on the Deleted Mortgage Loan, (vii) have a remaining term to
maturity not greater than (and not more than one year less than) that of the
Deleted Mortgage Loan, (viii) be current as of the date of substitution, (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, (xi) have been underwritten or
reunderwritten by the related Originator in accordance with the same
underwriting criteria and guidelines as the Deleted Mortgage Loan, (xii) be
a
first lien mortgage loan if the Deleted Mortgage Loan is a first lien mortgage
loan and (xiii) conform to each representation and warranty set forth in Section
3.01 of the Mortgage Loan Purchase Agreement or assigned to the Depositor
pursuant to the related Assignment 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 Stated Principal Balance, the Mortgage
Rates described in clause (ii) hereof shall be satisfied for each such mortgage
loan, the risk gradings described in clause (x) hereof shall be satisfied as
to
each such mortgage loan, the terms described in clause (vii) hereof shall be
determined on the basis of weighted average remaining term to maturity (provided
that no such mortgage loan may have a remaining term to maturity longer than
the
Deleted Mortgage Loan), the Loan-to-Value Ratios described in clause (ix) hereof
shall be satisfied as to each such mortgage loan and, except to the extent
otherwise provided in this sentence, the representations and warranties
described in clause (xii) hereof must be satisfied as to each Qualified
Substitute Mortgage Loan or in the aggregate, as the case may be. With respect
to each Originator, a mortgage loan substituted for a Deleted Mortgage Loan
pursuant to the terms of the related Master Agreement which must, on the date
of
such substitution conform to the terms set forth in the related Master
Agreement.
“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 Servicer.
“Realized
Loss”: With respect to any Liquidated Mortgage Loan, the amount of loss realized
equal to the portion of the Stated Principal Balance remaining unpaid after
application of all Net Liquidation Proceeds in respect of such Mortgage Loan.
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.
“Record
Date”: With respect to (i) the Fixed Rate Certificates, the Class P
Certificates, the Class C Certificates and the Residual Certificates, the Close
of Business on the last Business Day of the calendar month preceding the month
in which the related Distribution Date occurs and (ii) the Floating Rate
Certificates, the Close of Business on the Business Day immediately preceding
the related Distribution Date; provided, however, that following the date on
which Definitive Certificates for any of the Floating Rate Certificates are
available pursuant to Section 5.02, the Record Date for such Certificates that
are Definitive Certificates shall be the last Business Day of the calendar
month
preceding the month in which the related Distribution Date occurs.
“Reference
Banks”: Those banks (i) with an established place of business in London,
England, (ii) not controlling, under the control of or under common control
with
the Originator or the Servicer or any Affiliate thereof and (iii) which have
been designated as such by the Trustee after consultation with the Depositor;
provided, however, that if fewer than two of such banks provide a LIBOR rate,
then any leading banks selected by the Trustee after consultation with the
Depositor which are engaged in transactions in United States dollar deposits
in
the international Eurocurrency market.
“Refinanced
Mortgage Loan”: A Mortgage Loan the proceeds of which were not used to purchase
the related Mortgaged Property.
“Regular
Certificate”: Any of the Class A Certificates, Mezzanine Certificates, Class B
Certificates, Class C Certificates or Class P Certificates.
“Reimbursement
amount”: As defined in Section 3.29.
“Relief
Act”: The Servicemembers Civil Relief Act or any state law providing for similar
relief.
“Relief
Act Interest Shortfall”: With respect to any Distribution Date, for any Mortgage
Loan with respect to which there has been a reduction in the amount of interest
collectible thereon for the most recently ended Due Period as a result of the
application of the Relief Act or any similar state or local laws, the amount
by
which (i) interest collectible on such Mortgage Loan during such Due Period
is
less than (ii) one month’s interest on the Principal Balance of such Mortgage
Loan at the Mortgage Rate for such Mortgage Loan before giving effect to the
application of the Relief Act or such state or local laws.
“REMIC”:
A “real estate mortgage investment conduit” within the meaning of Section 860D
of the Code.
“REMIC
1”: The segregated pool of assets subject hereto, constituting the primary trust
created hereby and to be administered hereunder, with respect to which a REMIC
election is to be made consisting of: (i) such Mortgage Loans 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 Assignment Agreement
(including any security interest created thereby) and (v) the Collection
Account, the Distribution Account (subject to the last sentence of this
definition) 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 1 specifically excludes the Net WAC Rate Carryover Reserve
Account, the Cap Contract, the Swap Account, the Servicer Prepayment Charge
Payment Amounts, the Supplemental Interest Trust, the Interest Rate Swap
Agreement, and all payments and other collections of principal and interest
due
on the Mortgage Loans on or before the Cut-off Date and all Prepayment Charges
payable in connection with Principal Prepayments made before the Cut-off
Date.
“REMIC
1
Regular Interest”: Any of the separate non-certificated beneficial ownership
interests in REMIC 1 issued hereunder and designated as a “regular interest” in
REMIC 1. Each REMIC 1 Regular Interest shall accrue interest at the
Uncertificated REMIC 1 Pass-Through Rate in effect from time to time, and shall
be entitled to distributions of principal, subject to the terms and conditions
hereof, in an aggregate amount equal to its initial Uncertificated Principal
Balance as set forth in the Preliminary Statement hereto.
“REMIC
2”: The segregated pool of assets consisting of all of the REMIC 1 Regular
Interests and conveyed in trust to the Trustee, for the benefit of REMIC 3,
as
holder of the REMIC 2 Regular Interests, and the Class R Certificateholders,
as
Holders of the Class R-2 Interest, pursuant to Article II hereunder, and all
amounts deposited therein, with respect to which a separate REMIC election
is to
be made.
“REMIC
2
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 related REO Properties then outstanding and (ii) the
Uncertificated REMIC 2 Pass-Through Rate for REMIC 2 Regular Interest LTAA
minus
the Marker Rate, divided by (b) 12.
“REMIC
2
Overcollateralization Amount”: With respect to any date of determination, (i)
1.00% of the aggregate Uncertificated Principal Balance of the REMIC 2 Regular
Interests (other than the REMIC 2 Regular Interest LTP) minus (ii) the aggregate
Uncertificated Principal Balances of REMIC 2 Regular Interest LTIA1, REMIC
2
Regular Interest LTIIA1, REMIC 2 Regular Interest LTIIA2, REMIC 2 Regular
Interest LTIIA3, REMIC 2 Regular Interest LTIIA4, REMIC 2 Regular Interest
LTM1,
REMIC 2 Regular Interest LTM2, REMIC 2 Regular Interest LTM3, REMIC 2 Regular
Interest LTM4, REMIC 2 Regular Interest LTM5, REMIC 2 Regular Interest LTM6,
REMIC 2 Regular Interest LTM7, REMIC 2 Regular Interest LTM8, REMIC 2 Regular
Interest LTM9, REMIC 2 Regular Interest LTB1, REMIC 2 Regular Interest LTB2
and
REMIC 2 Regular Interest LTB3, in each case as of such date of
determination.
“REMIC
2
Overcollateralization Target Amount”: 1.00% of the Overcollateralization Target
Amount.
“REMIC
2
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 related REO Properties then outstanding and (ii) 1 minus
a
fraction, the numerator of which is two times the aggregate Uncertificated
Principal Balance of REMIC 2 Regular Interest LTIA1, REMIC 2 Regular Interest
LTIIA1, REMIC 2 Regular Interest LTIIA2, REMIC 2 Regular Interest LTIIA3, REMIC
2 Regular Interest LTIIA4, REMIC 2 Regular Interest LTM1, REMIC 2 Regular
Interest LTM2, REMIC 2 Regular Interest LTM3, REMIC 2 Regular Interest LTM4,
REMIC 2 Regular Interest LTM5, REMIC 2 Regular Interest LTM6, REMIC 2 Regular
Interest LTM7, REMIC 2 Regular Interest LTM8, REMIC 2 Regular Interest LTM9,
REMIC 2 Regular Interest LTB1, REMIC 2 Regular Interest LTB2 and REMIC 2 Regular
Interest LTB3 and the denominator of which is the aggregate Uncertificated
Principal Balance of REMIC 2 Regular Interest LTIA1, REMIC 2 Regular Interest
LTIIA1, REMIC 2 Regular Interest LTIIA2, REMIC 2 Regular Interest LTIIA3, REMIC
2 Regular Interest LTIIA4, REMIC 2 Regular Interest LTM1, REMIC 2 Regular
Interest LTM2, REMIC 2 Regular Interest LTM3, REMIC 2 Regular Interest LTM4,
REMIC 2 Regular Interest LTM5, REMIC 2 Regular Interest LTM6, REMIC 2 Regular
Interest LTM7, REMIC 2 Regular Interest LTM8, REMIC 2 Regular Interest LTM9,
REMIC 2 Regular Interest LTB1, REMIC 2 Regular Interest LTB2, REMIC 2 Regular
Interest LTB3 and REMIC 2 Regular Interest LTZZ.
“REMIC
2
Regular Interests”: One of the separate non-certificated beneficial ownership
interests in REMIC 2 issued hereunder and designated as a Regular Interest
in
REMIC 2. Each REMIC 2 Regular Interest shall accrue interest at the
Uncertificated REMIC 2 Pass-Through Rate in effect from time to time, and shall
be entitled to distributions of principal (other than REMIC 2 Regular Interest
LTIO), subject to the terms and conditions hereof, in an aggregate amount equal
to its initial Uncertificated Principal Balance as set forth in the Preliminary
Statement hereto. The following is a list of each of the REMIC 2 Regular
Interests: REMIC 2 Regular Interest LTAA, REMIC 2 Regular Interest LTIA1, REMIC
2 Regular Interest LTIIA1, REMIC 2 Regular Interest LTIIA2, REMIC 2 Regular
Interest LTIIA3, REMIC 2 Regular Interest LTIIA4, REMIC 2 Regular Interest
LTM1,
REMIC 2 Regular Interest LTM2, REMIC 2 Regular Interest LTM3, REMIC 2 Regular
Interest LTM4, REMIC 2 Regular Interest LTM5, REMIC 2 Regular Interest LTM6,
REMIC 2 Regular Interest LTM7, REMIC 2 Regular Interest LTM8, REMIC 2 Regular
Interest LTM9, REMIC 2 Regular Interest LTB1, REMIC 2 Regular Interest LTB2,
REMIC 2 Regular Interest LTB3, REMIC 2 Regular Interest LTZZ, REMIC 2 Regular
Interest LTP and REMIC 2 Regular Interest LTIO.
“REMIC
3”: The segregated pool of assets consisting of all of the REMIC 2 Regular
Interests conveyed in trust to the Trustee, for the benefit of the Holders
of
the Regular Certificates (other than the Class C Certificates and Class P
Certificates), the Class C Interest, the Class P Interest, the Class IO Interest
and the Class R Certificates (in respect of the Class R-3 Interest), pursuant
to
Article II hereunder, and all amounts deposited therein, with respect to which
a
separate REMIC election is to be made.
“REMIC
3
Regular Interest”: The Class C Interest, Class P Interest, Class IO Interest and
any “regular interest” in REMIC 3 the ownership of which is represented by a
Class A Certificate, Class M Certificate or Class B Certificate.
“REMIC
4”: The segregated pool of assets consisting of the Class C Interest conveyed
in
trust to the Trustee, for the benefit of the Holders of the Class C Certificates
and the Class R-X Certificates (in respect of the Class R-4 Interest), pursuant
to Article II hereunder, and all amounts deposited therein, with respect to
which a separate REMIC election is to be made.
“REMIC
4
Regular Interest”: Any “regular interest” in REMIC 4 the ownership of which is
represented by a Class C Certificate.
“REMIC
5”: The segregated pool of assets consisting of the Class P Interest conveyed
in
trust to the Trustee, for the benefit of the Holders of the Class P Certificates
and the Class R-X Certificates (in respect of the Class R-5 Interest), pursuant
to Article II hereunder, and all amounts deposited therein, with respect to
which a separate REMIC election is to be made.
“REMIC
5
Regular Interest”: Any “regular interest” in REMIC 5 the ownership of which is
represented by a Class P Certificate.
“REMIC
6”: The segregated pool of assets consisting of the Class IO Interest conveyed
in trust to the Trustee, for the benefit of the Holders of the REMIC 6 Regular
Interest SWAP IO and the Class R-X Certificates (in respect of the Class R-6
Interest), pursuant to Article II hereunder, and all amounts deposited therein,
with respect to which a separate REMIC election is to be made.
“REMIC
Provisions”: Provisions of the federal income tax law relating to real estate
mortgage investment conduits which appear at Section 860A through 860G of
Subchapter M of Chapter 1 of the Code, and related provisions, and regulations
and rulings promulgated thereunder, as the foregoing may be in effect from
time
to time.
“REMIC
Regular Interest”: A REMIC 1 Regular Interest, REMIC 2 Regular Interest, REMIC 3
Regular Interest, REMIC 4 Regular Interest or REMIC 5 Regular
Interest.
“Remittance
Report”: A report prepared by the Servicer and delivered to the Trustee and the
NIMS Insurer pursuant to Section 4.04.
“Rents
from Real Property”: With respect to any REO Property, gross income of the
character described in Section 856(d) of the Code.
“REO
Account”: The account or accounts 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 the
Trust Fund.
“REO
Imputed Interest”: As to any REO Property, for any calendar month during which
such REO Property was at any time part of the Trust Fund, one month’s interest
at the applicable Net Mortgage Rate on the Stated Principal Balance of such
REO
Property (or, in the case of the first such calendar month, of the related
Mortgage Loan if appropriate) as of the Close of Business on the Distribution
Date in such calendar month.
“REO
Principal Amortization”: With respect to any REO Property, for any calendar
month, the excess, if any, of (a) the aggregate of all amounts received in
respect of such REO Property during such calendar month, whether in the form
of
rental income, sale proceeds (including, without limitation, that portion of
the
Termination Price paid in connection with a purchase of all of the Mortgage
Loans and REO Properties pursuant to Section 10.01 that is allocable to such
REO
Property) or otherwise, net of any portion of such amounts (i) payable pursuant
to Section 3.23 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 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 the Trust
Fund 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 E
attached hereto.
“Reserve
Interest Rate”: With respect to any Interest Determination Date, the rate per
annum that the Trustee determines to be either (i) the arithmetic mean (rounded
upwards if necessary to the nearest whole multiple of 1/16 of 1%) of the
one-month United States dollar lending rates which banks in The City of New
York
selected by 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, in the case of any Interest Determination Date after the initial Interest
Determination Date, the lowest one-month United States dollar lending rate
which
such New York banks selected by the Depositor are quoting on such Interest
Determination Date to leading European banks.
“Residential
Dwelling”: Any one of the following: (i) a detached one-family dwelling, (ii) a
detached two- to four-family dwelling, (iii) a one-family dwelling unit in
a
Xxxxxx Xxx eligible condominium project, (iv) a manufactured home, or (v) a
detached one-family dwelling in a planned unit development, none of which is
a
co-operative or mobile home.
“Residual
Certificate”: The Class R Certificates and the Class R-X
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 director, any vice
president, any assistant vice president, the Secretary, any assistant secretary,
the Treasurer, any assistant treasurer or any other officer of the Trustee
customarily 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.
“S&P”:
Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies,
Inc., or its successor in interest.
“SEC”:
Securities and Exchange Commission.
“Seller”:
Greenwich Capital Financial Products, Inc., a Delaware corporation, in its
capacity as Seller under the Assignment Agreement.
“Senior
Credit Enhancement Percentage”: For any Distribution Date, the percentage
equivalent of a fraction, the numerator of which is the sum of the aggregate
Certificate Principal Balance of the Mezzanine Certificates, the Class B
Certificates and the Class C Certificates, and the denominator of which is
the
aggregate Stated Principal Balance of the Mortgage Loans calculated prior to
taking into account payments of principal on the Mortgage Loans and distribution
of the Group I Principal Distribution Amount and the Group II Principal
Distribution Amount to the Holders of the Certificates then entitled to
distributions of principal on such Distribution Date.
“Senior
Principal Distribution Amount”: With respect to any Distribution Date, the sum
of (i) the Group I Senior Principal Distribution Amount and (ii) the Group
II
Senior Principal Distribution Amount.
“Servicer”:
Xxxxx Fargo Bank, N.A., or any successor servicer appointed as herein provided,
in its capacity as Servicer hereunder, effective July 1, 2006. From the Cut-off
Date through and including June 30, 2006, the Servicer shall be Fremont
Investment & Loan, or any successor servicer appointed as provided under the
Master Agreement.
“Servicer
Certification”: As defined in Section 4.07(b)(ii) hereof.
“Servicer
Event of Termination”: One or more of the events described in
Section 7.01.
“Servicer
Prepayment Charge Payment Amount”: The amounts payable by the Servicer in
respect of any waived Prepayment Charges pursuant to Section 2.05 or Section
3.01.
“Servicer
Remittance Date”: With respect to any Distribution Date, the second Business Day
prior to such Distribution Date.
“Servicing
Advance Reimbursement Amount”: As defined in Section 3.29.
“Servicing
Advances”: All customary, reasonable and necessary “out of pocket” costs and
expenses (including reasonable attorneys’ fees and expenses) incurred 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 the Mortgaged Property, (ii) any enforcement or judicial
proceedings, including foreclosures, (iii) the management and liquidation of
the
REO Property, (iv) obtaining broker price opinions, (v) locating missing
Mortgage Loan documents and (vi) compliance with the obligations under Sections
3.01, 3.09, 3.14, 3.16, and 3.23. Servicing Advances also include any reasonable
“out-of-pocket” costs and expenses (including legal fees) incurred by the
Servicer in connection with executing and recording instruments of satisfaction,
deeds of reconveyance or Assignments of Mortgage in connection with any
foreclosure in respect of any Mortgage Loan to the extent not recovered from
the
related Mortgagor or otherwise payable under this Agreement. The Servicer shall
not be required to make any Servicing Advance that would be a Nonrecoverable
Advance.
“Servicing
Fee”: With respect to each Mortgage Loan, the amount of the annual fee paid to
the Servicer, which shall, for a period of one full month, be equal to
one-twelfth of the product of (a) the Servicing Fee Rate (without regard to
the
words "per annum") and (b) the outstanding principal balance of such Mortgage
Loan. Such fee shall be payable monthly, computed on the basis of the same
principal amount and period respecting which any related interest payment on
a
Mortgage Loan is received. The obligation for payment of the Servicing Fee
is
limited to, and the Servicing Fee is payable solely from, the interest portion
(including recoveries with respect to interest from Liquidation Proceeds) of
such Monthly Payment collected by the Servicer, or as otherwise provided under
Section 3.11.
“Servicing
Fee Rate”: 0.50%
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
Standard”: As defined in Section 3.01.
“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 and any
fees associated with MERS.
“Startup
Day”: As defined in Section 9.01(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 outstanding principal balance of such Mortgage Loan
as
of the Cut-off Date as shown in the Mortgage Loan Schedule, minus the sum of
(i)
the principal portion of each Monthly Payment due on a Due Date subsequent
to
the Cut-off Date to the extent received from the Mortgagor or advanced by the
Servicer 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 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 Due 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 the Trust Fund, minus 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.
“Stepdown
Date”: The earlier to occur of (i) the Distribution Date on which the aggregate
Certificate Principal Balance of the Class A Certificates have been reduced
to
zero and (ii) the later to occur of (x) the Distribution Date occurring in
May
2009 and (y) the first Distribution Date on which the Senior Credit Enhancement
Percentage (calculated for this purpose only after taking into account payments
of principal on the Mortgage Loans but prior to distribution of the Group I
Principal Distribution Amount and the Group II Principal Distribution Amount
to
the Certificates then entitled to distributions of principal on such
Distribution Date) is equal to or greater than 47.20%.
“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”: An account established by a Sub-Servicer which meets the requirements
set forth in Section 3.08 and is otherwise acceptable to the
Servicer.
“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, amounts received by the Servicer (net of any related
expenses permitted to be reimbursed pursuant to Section 3.11) 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.
“Substitution
Adjustment”: As defined in Section 2.03(d) hereof.
“Supplemental
Interest Trust”: As defined in Section 4.05(a).
“Supplemental
Interest Trust Trustee”: Deutsche Bank National Trust Company, a national
banking association, or any successor in interest, or any successor Supplemental
Interst Trust Trustee.
“Swap
Account”: The account or accounts created and maintained pursuant to Section
4.05. The Swap Account must be an Eligible Account.
“Swap
Interest Shortfall Amount”: Any shortfall of interest with respect to any Class
of Certificates resulting from the application of the Net WAC Rate due to a
discrepancy between the Uncertificated Notional Amount of REMIC 6 Regular
Interest SWAP IO and the scheduled notional amount pursuant to Interest Rate
Swap Agreement.
“Swap
LIBOR”:
A per annum rate equal to the floating rate payable by the Swap Provider under
the Swap Agreement.
“Swap
Provider”: HSBC Bank USA, National Association.
“Swap
Provider Trigger Event”: A Swap Termination Payment that is triggered upon: (i)
an Event of Default under the Interest Rate Swap Agreement with respect to
which
the Swap Provider is a Defaulting Party (as defined in the Interest Rate Swap
Agreement), (ii) a Termination Event under the Interest Rate Swap Agreement
with
respect to which the Swap Provider is the sole Affected Party (as defined in
the
Interest Rate Swap Agreement) or (iii) an Additional Termination Event under
the
Interest Rate Swap Agreement with respect to which the Swap Provider is the
sole
Affected Party.
“Swap
Termination Payment”: The payment due to either party under the Interest Rate
Swap Agreement upon the early termination of the Interest Rate Swap
Agreement.
“Tax
Matters Person”: The tax matters person appointed pursuant to Section 9.01(e)
hereof.
“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 the REMIC
Taxable Income or Net Loss Allocation, or any successor forms, to be filed
by
the Trustee on behalf of each REMIC, 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.
“Termination
Price”: As defined in Section 10.01(a) hereof.
“Terminator”:
As defined in Section 10.01(a) hereof.
“Trigger
Event”: A Trigger Event is in effect with respect to any Distribution Date on or
after the Stepdown Date if:
(a) (i)on
any
Distribution Date on which the Class A Certificates remain outstanding, the
Delinquency Percentage exceeds 33.90%
of the
Senior Credit Enhancement Percentage; or (ii) on any Distribution Date on which
the aggregate Certificate Principal Balance of the Class A Certificates has
been
reduced to zero, the Delinquency Percentage exceeds 38.50%
of the
Class M-1 Credit Enhancement Percentage; or;
or
(b) the
cumulative amount of Realized Losses incurred since the Cut-off Date as a
percentage of the aggregate Stated Principal Balance of the Mortgage Loans
as of
the Cut-off Date for the related Distribution Date are greater
than:
|
Distribution
Date Occurring In
|
Percentage
|
|
May
2008 through April 2009
|
1.55%
for the first month, plus an additional 1/12th
of
1.90%
for each month thereafter.
|
|
May
2009 through April 2010
|
3.45%
for the first month, plus an additional 1/12th
of
1.95%
for each month thereafter.
|
|
May
2010 through April 2011
|
5.40%
for the first month, plus an additional 1/12th
of
1.50%
for each month thereafter.
|
|
May
2011 through April 2012
|
6.90%
for the first month, plus an additional 1/12th
of
0.80%
for each month thereafter.
|
|
May
2012 and thereafter
|
7.70%.
|
“Trust”:
Fremont Home Loan Trust 2006-1, the trust created hereunder.
“Trust
Fund”: All of the assets of the Trust, which is the trust created hereunder
consisting of REMIC 2, REMIC 2, REMIC 3, REMIC 4, REMIC 5, REMIC 6, the Cap
Contract, distributions made to the Trustee by the Swap Provider under the
Interest Rate Swap Agreement and the Swap Account, the right to receive any
amounts from the Net WAC Rate Carryover Reserve Account and any Servicer
Prepayment Charge Payment Amounts.
“Trustee”:
Deutsche Bank National Trust Company, a national banking association, or any
successor trustee appointed as herein provided.
“Trustee
Compensation”: 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.
“Uncertificated
Accrued Interest”: With respect to each REMIC Regular Interest on each
Distribution Date, an amount equal to one month’s interest at the related
Uncertificated REMIC Pass-Through Rate on the Uncertificated Principal Balance
or Uncertificated Notional Amount, as applicable, of such REMIC Regular
Interest. In each case, Uncertificated Accrued Interest will be reduced by
any
Net Prepayment Interest Shortfalls and Relief Act Interest Shortfalls (allocated
to such REMIC Regular Interests as set forth in Section 1.03).
“Uncertificated
Notional Amount”: With respect to REMIC 2 Regular Interest LTIO and each
Distribution Date listed below, the aggregate Uncertificated Principal Balance
of the REMIC 1 Regular Interests ending with the designation “A” listed
below:
|
Distribution
Date
|
REMIC
2 Regular Interests
|
|
1st
through 12th
|
I-1-A
through X-00-X
|
|
00
|
X-0-X
xxxxxxx X-00-X
|
|
00
|
X-0-X
through X-00-X
|
|
00
|
X-0-X
xxxxxxx X-00-X
|
|
00
|
X-0-X
through X-00-X
|
|
00
|
X-0-X
xxxxxxx X-00-X
|
|
00
|
X-0-X
through X-00-X
|
|
00
|
X-0-X
xxxxxxx X-00-X
|
|
00
|
X-0-X
through I-39-A
|
|
21
|
I-10-A
through I-39-A
|
|
22
|
I-11-A
through I-39-A
|
|
23
|
I-12-A
through I-39-A
|
|
24
|
I-13-A
through I-39-A
|
|
25
|
I-14-A
through I-39-A
|
|
26
|
I-15-A
through I-39-A
|
|
27
|
I-16-A
through I-39-A
|
|
28
|
I-17-A
through I-39-A
|
|
29
|
I-18-A
through I-39-A
|
|
30
|
I-19-A
through I-39-A
|
|
31
|
I-20-A
through I-39-A
|
|
32
|
I-21-A
through I-39-A
|
|
33
|
I-22-A
through I-39-A
|
|
34
|
I-23-A
through I-39-A
|
|
35
|
I-24-A
through I-39-A
|
|
36
|
I-25-A
through I-39-A
|
|
37
|
I-26-A
through I-39-A
|
|
38
|
I-27-A
through I-39-A
|
|
39
|
I-28-A
through I-39-A
|
|
40
|
I-29-A
through I-39-A
|
|
41
|
I-30-A
through I-39-A
|
|
42
|
I-31-A
through I-39-A
|
|
43
|
I-32-A
through I-39-A
|
|
44
|
I-33-A
through I-39-A
|
|
45
|
I-34-A
through I-39-A
|
|
46
|
I-35-A
through I-39-A
|
|
47
|
I-36-A
through I-39-A
|
|
48
|
I-37-A
through I-39-A
|
|
49
|
I-38-A
and I-39-A
|
|
50
|
I-39-A
|
|
thereafter
|
$0.00
|
With
respect to the Class IO Interest and any Distribution Date, an amount equal
to
the Uncertificated Notional Amount of the REMIC 2 Regular Interest
LTIO.
“Uncertificated
Principal Balance”: With respect to each REMIC Regular Interest (other than
REMIC 2 Regular Interest LTIO and the Class IO Interest), the principal amount
of such REMIC Regular Interest outstanding as of any date of determination.
As
of the Closing Date, the Uncertificated Principal Balance of each such REMIC
Regular Interest shall equal the amount set forth in the Preliminary Statement
hereto as its initial Uncertificated Principal Balance. On each Distribution
Date, the Uncertificated Principal Balance of each such REMIC Regular Interest
shall be reduced by all distributions of principal made on such REMIC Regular
Interest on such Distribution Date pursuant to Section 4.09 and, if and to
the
extent necessary and appropriate, shall be further reduced on such Distribution
Date by Realized Losses as provided in Section 4.10. The Uncertificated
Principal Balance of REMIC 2 Regular Interest LTZZ shall be increased by
interest deferrals as provided in Section 4.09. With respect to the Class C
Interest as of any date of determination, an amount equal to the excess, if
any,
of (A) the then aggregate Uncertificated Principal Balance of the REMIC 2
Regular Interests over (B) the then aggregate Certificate Principal Balance
of
the Class A Certificates, the Mezzanine Certificates, the Class B Certificates
and the Class P Certificates then outstanding. The Uncertificated Principal
Balance of each REMIC Regular Interest shall never be less than
zero.
“Uncertificated
REMIC Pass-Through Rate”: The Uncertificated REMIC 1 Pass-Through Rate or
Uncertificated REMIC 2 Pass-Through Rate.
“Uncertificated
REMIC 1 Pass-Through Rate”: With respect to REMIC 1 Regular Interest I, a per
annum rate equal to the weighted average Adjusted Net Mortgage Rate of the
Mortgage Loans. With respect to each REMIC 1 Regular Interest ending with the
designation “A”, a per annum rate equal to the weighted average Adjusted Net
Mortgage Rate of the Mortgage Loans multiplied by 2, subject to a maximum rate
of 10.200%. With respect to each REMIC 1 Regular Interest ending with the
designation “B”, the greater of (x) a per annum rate equal to the excess, if
any, of (i) 2 multiplied by the weighted average Adjusted Net Mortgage Rate
of
the Mortgage Loans over (ii) 10.200% and (y) 0.00%.
“Uncertificated
REMIC 2 Pass-Through Rate”: With respect to REMIC 2 Regular Interest LTAA, REMIC
2 Regular Interest LTIA1, REMIC 2 Regular Interest LTIIA1, REMIC 2 Regular
Interest LTIIA2, REMIC 2 Regular Interest LTIIA3, REMIC 2 Regular Interest
LTIIA4, REMIC 2 Regular Interest LTM1, REMIC 2 Regular Interest LTM2, REMIC
2
Regular Interest LTM3, REMIC 2 Regular Interest LTM4, REMIC 2 Regular Interest
LTM5, REMIC 2 Regular Interest LTM6, REMIC 2 Regular Interest LTM7, REMIC 2
Regular Interest LTM8, REMIC 2 Regular Interest LTM9, REMIC 2 Regular Interest
LTB1, REMIC 2 Regular Interest LTB2, REMIC 2 Regular Interest LTB3, REMIC 2
Regular Interest LTZZ and REMIC 2 Regular Interest LTP, a
per
annum rate (but not less than zero) equal to the weighted average of (v) with
respect to REMIC 1 Regular Interest I, the Uncertificated REMIC 1 Pass-Through
Rate for such REMIC 1 Regular Interest for each such Distribution Date, (w)
with
respect to REMIC 1 Regular Interests ending with the designation “B”, the
weighted average of the Uncertificated REMIC 1 Pass-Through Rates for such
REMIC
1 Regular Interests, weighted on the basis of the Uncertificated Principal
Balance of such REMIC 1 Regular Interests for each such Distribution Date and
(x) with respect to REMIC 1 Regular Interests ending with the designation “A”,
for each Distribution Date listed below, the weighted average of the rates
listed below for each such REMIC 1 Regular Interest listed below, weighted
on
the basis of the Uncertificated Principal Balance of each such REMIC 1 Regular
Interest for each such Distribution Date:
|
Distribution
Date
|
REMIC
1 Regular Interest
|
Rate
|
|
1st
through 11th
|
I-1-A
through I-39-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
12
|
I-1-A
through I-39-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
13
|
I-2-A
through I-39-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
14
|
I-3-A
through I-39-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
and I-2-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
15
|
I-4-A
through I-39-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-3-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
16
|
I-5-A
through I-39-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-4-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
17
|
I-6-A
through I-39-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-5-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
18
|
I-7-A
through I-39-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-6-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
19
|
I-8-A
through I-39-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-7-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
20
|
I-9-A
through I-39-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-8-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
21
|
I-10-A
through I-39-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-9-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
22
|
I-11-A
through I-39-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-10-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
23
|
I-12-A
through I-39-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-11-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
24
|
I-13-A
through I-39-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-12-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
25
|
I-14-A
through I-39-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-13-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
26
|
I-15-A
through I-39-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-14-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
27
|
I-16-A
through I-39-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-15-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
28
|
I-17-A
through I-39-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-16-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
29
|
I-18-A
through I-39-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-17-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
30
|
I-19-A
through I-39-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-18-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
31
|
I-20-A
through I-39-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-19-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
32
|
I-21-A
through I-39-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-20-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
33
|
I-22-A
through I-39-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-21-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
34
|
I-23-A
through I-39-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-22-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
35
|
I-24-A
through I-39-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-23-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
36
|
I-25-A
through I-39-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-24-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
37
|
I-26-A
through I-39-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-25-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
38
|
I-27-A
through I-39-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-26-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
39
|
I-28-A
through I-39-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-27-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
40
|
I-29-A
through I-39-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-28-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
41
|
I-30-A
through I-39-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-29-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
42
|
I-31-A
through I-39-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-30-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
43
|
I-32-A
through I-39-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-31-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
44
|
I-33-A
through I-39-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-32-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
45
|
I-34-A
through I-39-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-33-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
45
|
I-35-A
through I-39-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-34-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
47
|
I-36-A
through I-39-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-35-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
48
|
I-37-A
through I-39-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-36-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
49
|
I-38-A
through I-39-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-37-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
50
|
I-39-A
|
2
multiplied by Swap LIBOR, subject to a maximum rate of Uncertificated
REMIC 1 Pass-Through Rate
|
|
I-1-A
through I-38-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
|
|
thereafter
|
I-1-A
through I-39-A
|
Uncertificated
REMIC 1 Pass-Through Rate
|
With
respect to REMIC 2 Regular Interest LTIO and (a) the first eleven Distribution
Date, the excess of (i) the weighted average of the Uncertificated REMIC 1
Pass-Through Rates for REMIC 1 Regular Interests ending with the designation
“A”
over (ii) the weighted average of the Uncertificated REMIC 1 Pass-Through Rates
for REMIC 1 Regular Interests ending with the designation “A” and (b) the
twelfth Distribution Date through the 50th Distribution Date, the excess of
(i)
the weighted average of the Uncertificated REMIC 1 Pass-Through Rates for REMIC
1 Regular Interests ending with the designation “A”, over (ii) 2 multiplied by
Swap LIBOR and (c) thereafter, 0.00%.
“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.
“United
States Person” or “U.S. 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 Residual 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.
“Unpaid
Interest Shortfall Amount”: With respect to the Fixed Rate Certificates and the
Floating Rate Certificates and (i) the first Distribution Date, zero, and (ii)
any Distribution Date after the first Distribution Date, the amount, if any,
by
which (a) the sum of (1) the Monthly Interest Distributable Amount for such
Class for the immediately preceding Distribution Date and (2) the outstanding
Unpaid Interest Shortfall Amount, if any, for such Class for such preceding
Distribution Date exceeds (b) the aggregate amount distributed on such Class
in
respect of interest pursuant to clause (a) of this definition on such preceding
Distribution Date, plus interest on the amount of interest due but not paid
on
the Certificates of such Class on such preceding Distribution Date, to the
extent permitted by law, at the Pass-Through Rate for such Class for the related
Accrual Period.
“Value”:
With respect to any Mortgaged Property, the lesser of (i) 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 (ii) the purchase price paid
for
the related Mortgaged Property by the Mortgagor with the proceeds of the
Mortgage Loan.
“Voting
Rights”: The portion of the voting rights of all of the Certificates which is
allocated to any Certificate. At all times the Fixed Rate Certificates and
the
Floating Rate Certificates and the Class C Certificates shall have 98% of the
Voting Rights (allocated among the Holders of the Class A Certificates,
Mezzanine Certificates and the Class C Certificates in proportion to the then
outstanding Certificate Principal Balances of their respective Certificates),
the Class P Certificates shall have 1% of the Voting Rights and the Residual
Certificates shall have 1% of the Voting Rights. The Voting Rights allocated
to
any Class of Certificates (other than the Class P Certificates and the Residual
Certificates) shall be allocated among all Holders of each such Class in
proportion to the outstanding Certificate Principal Balance of such
Certificates, and the Voting Rights allocated to the Class P Certificates and
the Residual Certificates shall be allocated among all Holders of each such
Class in proportion to such Holders’ respective Percentage Interest; provided,
however that when none of the Regular Certificates are outstanding, 100% of
the
Voting Rights shall be allocated among Holders of the Residual Certificates
in
accordance with such Holders’ respective Percentage Interests in the
Certificates of such Class.
| SECTION 1.02 |
Accounting.
|
Unless
otherwise specified herein, for the purpose of any definition or calculation,
whenever amounts are required to be netted, subtracted or added or any
distributions are taken into account such definition or calculation and any
related definitions or calculations shall be determined without duplication
of
such functions.
| SECTION 1.03 |
Allocation
of Certain Interest Shortfalls.
|
For
purposes of calculating the amount of the Monthly Interest Distributable Amount
for the Class A Certificates, Mezzanine Certificates, the Class B Certificates
and the Class C Certificates for any Distribution Date, (1) the aggregate amount
of any Net Prepayment Interest Shortfalls and any Relief Act Interest Shortfalls
incurred in respect of the Mortgage Loans for any Distribution Date shall be
allocated first, among the Class C Certificates on a pro
rata
basis
based on, and to the extent of, one month’s interest at the then applicable
Pass-Through Rate on the Notional Amount of each such Certificate and,
thereafter, among the Class A Certificates, the Class B Certificates and
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 and
Net WAC Rate Carryover Amounts shall be allocated among the Class C Certificates
on a pro
rata
basis
based on, and to the extent of, one month’s interest at the then applicable
Pass-Through Rate on the Notional Amount of each such Certificate.
For
purposes of calculating the amount of Uncertificated Accrued Interest for the
REMIC 1 Regular Interests for any Distribution Date the aggregate amount of
any
Net Prepayment Interest Shortfalls and any Relief Act Interest Shortfalls
incurred in respect of the Mortgage Loans shall be allocated first, to REMIC
1
Regular Interest I and to the REMIC 1 Regular Interests ending with the
designation “B”, pro
rata
based
on, and to the extent of, one month’s interest at the then applicable respective
Uncertificated REMIC 1 Pass-Through Rates on the respective Uncertificated
Principal Balances of each such REMIC 1 Regular Interest, and then, to REMIC
1
Regular Interests ending with the designation “A”, pro rata based on, and to the
extent of, one month’s interest at the then applicable respective Uncertificated
REMIC 1 Pass-Through Rates on the respective Uncertificated Principal Balances
of each such REMIC 1 Regular Interest.
For
purposes of calculating the amount of Uncertificated Accrued Interest for the
REMIC 2 Regular Interests for any Distribution Date, the aggregate amount of
any
Net Prepayment Interest Shortfalls and any Relief Act Interest Shortfalls
incurred in respect of the Mortgage Loans for any Distribution Date shall be
allocated among REMIC 2 Regular Interest LTAA, REMIC 2 Regular Interest LTIA1,
REMIC 2 Regular Interest LTIIA1, REMIC 2 Regular Interest LTIIA2, REMIC
2
Regular Interest LTIIA3, REMIC
2
Regular Interest LTIIA4, REMIC 2 Regular Interest LTM1, REMIC 2 Regular Interest
LTM2, REMIC 2 Regular Interest LTM3, REMIC 2 Regular Interest LTM4, REMIC 2
Regular Interest LTM5, REMIC 2 Regular Interest LTM6, REMIC 2 Regular Interest
LTM7, REMIC 2 Regular Interest LTM8, REMIC 2 Regular Interest LTM9, REMIC 2
Regular Interest LTB1, REMIC 2 Regular Interest LTB2, REMIC 2 Regular Interest
LTB3 and REMIC 2 Regular Interest LTZZ pro
rata based
on,
and to the extent of, one month’s interest at the then applicable respective
Uncertificated REMIC 2 Pass-Through Rate on the respective Uncertificated
Principal Balance of each such REMIC 2 Regular Interest.
| SECTION 1.04 |
Rights
of the NIMS Insurer.
|
Each
of
the rights of the NIMS Insurer set forth in this Agreement shall exist so long
as (i) the NIMS Insurer has undertaken to guarantee certain payments of notes
issued pursuant to an Indenture and (ii) any series of notes issued pursuant
to
one or more Indentures remain outstanding or the NIMS Insurer is owed amounts
in
respect of its guarantee of payment on such notes; provided, however, the NIMS
Insurer shall not have any rights hereunder (except pursuant to Section 11.01
in
the case of clause (ii) below) so long as (i) the NIMS Insurer has not
undertaken to guarantee certain payments of notes issued pursuant to the
Indenture or (ii) any default has occurred and is continuing under the insurance
policy issued by the NIMS Insurer with respect to such notes.
ARTICLE
II
CONVEYANCE
OF MORTGAGE LOANS;
ORIGINAL
ISSUANCE OF CERTIFICATES
| SECTION 2.01 |
Conveyance
of Mortgage Loans.
|
The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust 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 (i) each Mortgage Loan identified on the
Mortgage Loan Schedule, including the related Cut-off Date Principal Balance,
all interest accruing thereon on and after the Cut-off Date and all collections
in respect of interest and principal due after the Cut-off Date; (ii) property
which secured each such Mortgage Loan and which has been acquired by foreclosure
or deed in lieu of foreclosure; (iii) its interest in any insurance policies
in
respect of the Mortgage Loans; (iv) the rights of the Depositor under the Master
Agreement (as assigned to the Depositor pursuant to the terms of the Assignment
Agreement), (v) the
right
to receive any amounts payable under the Cap Contract and payments
made to the Trustee by the Swap Provider under the Interst Rate Swap Agreement,
(vi) all other assets included or to be included in the Trust Fund and (vii)
all
proceeds of any of the foregoing. Such assignment includes all interest and
principal due and collected by the Depositor or the Servicer after the Cut-off
Date with respect to the Mortgage Loans.
In
connection with such transfer and assignment, the Depositor, does hereby 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 (with respect to each Mortgage Loan, a “Mortgage File”):
(i) the
original Mortgage Note, endorsed either (A) in blank or (B) in the following
form: “Pay to the order of Deutsche Bank National Trust Company, as Trustee,
without recourse” or with respect to any lost Mortgage Note, an original Lost
Note Affidavit stating that the original mortgage note was lost, misplaced
or
destroyed, together with a copy of the related mortgage note; provided, however,
that such substitutions of Lost Note Affidavits for original Mortgage Notes
may
occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal
Balance of which is less than or equal to 1.00% of the Pool Balance as of the
Cut-off Date;
(ii) the
original Mortgage (noting the presence of the MIN of the Mortgage Loan and
language indicating that the Mortgage Loan is a MOM Loan if the Mortgage Loan
is
a MOM Loan), with evidence of recording thereon, and the original recorded
power
of attorney, if the Mortgage was executed pursuant to a power of attorney,
with
evidence of recording thereon or, if such Mortgage or power of attorney has
been
submitted for recording but has not been returned from the applicable public
recording office, has been lost or is not otherwise available, a copy of such
Mortgage or power of attorney, as the case may be, certified to be a true and
complete copy of the original submitted for recording;
(iii) unless
the Mortgage Loan is a MERS® loan, an original Assignment, in form and substance
acceptable for recording. The Mortgage shall be assigned either (A) in blank
or
(B) to “Deutsche Bank National Trust Company, as Trustee, without
recourse”;
(iv) an
original of any intervening assignment of Mortgage showing a complete chain
of
assignments (or to MERS if the Mortgage Loan is a MERS loan;
(v) the
original or a copy of lender’s title insurance policy; and
(vi) the
original or copies of each assumption, modification, written assurance or
substitution agreement, if any.
The
Depositor herewith also delivers to the Trustee an executed copy of each
Assignment Agreement and each Master Agreement.
The
Trustee agrees to execute and deliver (or cause the Custodian to execute and
deliver) and to the Depositor on or prior to the Closing Date an acknowledgment
of receipt of the original Mortgage Note (with any exceptions noted),
substantially in the form attached as Exhibit F-3 hereto.
If
any of
the documents referred to in Section 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 no later than the Closing
Date, 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. If the original lender’s title
insurance policy, or a certified copy thereof, was not delivered pursuant to
Section 2.01(v) above, the Depositor shall deliver or cause to be delivered
to
the Custodian on behalf of the Trustee, the original or a copy of a written
commitment or interim binder or preliminary report of title issued by the title
insurance or escrow company, with the original or a certified copy thereof
to be
delivered to the Custodian on behalf of the Trustee, promptly upon receipt
thereof. The Servicer or the Depositor shall deliver or cause to be delivered
to
the Custodian on behalf of the Trustee promptly upon receipt thereof any other
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.
Upon
discovery or receipt of notice of any materially defective document in, or
that
a document is missing from, a Mortgage File, the Trustee (or the Custodian
on
behalf of the Trustee) shall notify the Servicer and the Servicer shall enforce
the obligations of the Originator under the Master Agreement to cure such defect
or deliver such missing document to the Trustee or the Custodian within 90
days.
If the Originator does not cure such defect or deliver such missing document
within such time period, the Servicer shall use commercially reasonable efforts
to attempt to enforce the obligations of the Originator to either repurchase
or
substitute for such Mortgage Loan in accordance with Section 2.03; provided,
however, that the Servicer shall not be under any obligation to take any action
pursuant to this paragraph unless directed by the Depositor and provided,
further, the Depositor hereby agrees to assist the Servicer in enforcing any
obligations of the Originator to repurchase or substitute for a Mortgage Loan
which has breached a representation or warranty under the Assignment Agreement.
In connection with the foregoing, it is understood that the Custodian on behalf
of the Trustee shall have no duty to discover any such defects except in the
course of performing its review of the Mortgage Files to the extent set forth
herein.
Except
with respect to any Mortgage Loan for which MERS is identified on the Mortgage,
the Trustee shall enforce the obligations of the Originator under the Master
Agreement to cause the Assignments which were delivered in blank to be completed
and to record all Assignments referred to in Section 2.01(iii) hereof and,
to
the extent necessary, in Section 2.01(iv) hereof. The Trustee shall enforce
the
obligations of the Originator under the Master Agreement to deliver such
assignments for recording within 180 days of the Closing Date. In the event
that
any such Assignment is lost or returned unrecorded because of a defect therein,
the Trustee shall enforce the obligations of the Originator under the Assignment
Agreement to promptly have a substitute Assignment prepared or have such defect
cured, as the case may be, and thereafter cause each such Assignment to be
duly
recorded.
Notwithstanding
the foregoing, for administrative convenience and facilitation of servicing
and
to reduce closing costs, the Assignments of Mortgage shall not be required
to be
submitted for recording (except with respect to any Mortgage Loan located in
Maryland) unless the Trustee (or the Custodian on behalf of the Trustee) and
the
Depositor receive notice that such failure to record would result in a
withdrawal or a downgrading by any Rating Agency of the rating on any Class
of
Certificates; provided, however, each Assignment, except with respect to any
Mortgage Loan for which MERS is identified on the Mortgage, shall be submitted
for recording in the manner described above, at no expense to the Trust Fund
or
Trustee, upon the earliest to occur of: (i) reasonable direction by the Holders
of Certificates entitled to at least 25% of the Voting Rights, (ii) the
occurrence of a Servicer Event of Termination, (iii) the occurrence of a
bankruptcy, insolvency or foreclosure relating to the Originator, (iv) the
occurrence of a servicing transfer as described in Section 7.02 hereof, (v)
upon
receipt of notice from the Servicer, the occurrence of a bankruptcy, insolvency
or foreclosure relating to the Mortgagor under the related Mortgage, (vi) upon
receipt of notice from the Servicer, any Mortgage Loan that is 90 days or more
Delinquent and such recordation would be necessary to facilitate conversion
of
the Mortgaged Property in accordance with Section 3.16 and (vii) reasonable
direction by the NIMS Insurer. In the event of (i) through (vii) set forth
in
the immediately preceding sentence, the Trustee shall enforce the obligations
of
the Originator to deliver such Assignments for recording as provided above,
promptly and in any event within 30 days following receipt of notice by the
Originator. Notwithstanding the foregoing, if the Originator fails to pay the
cost of recording the Assignments, such expense will be paid by the Trustee
(if
it reasonably believes it will be reimbursed) and the Trustee shall be
reimbursed for such expenses by the Trust.
The
Servicer shall forward to the Custodian original documents evidencing an
assumption, modification, consolidation or extension of any Mortgage Loan
entered into in accordance with this Agreement within two weeks of their
execution; provided, however, that the Servicer shall provide the Custodian
with
a certified true copy of any such document submitted for recordation within
two
weeks of its execution, and shall provide the original of any document submitted
for recordation or a copy of such document certified by the appropriate public
recording office to be a true and complete copy of the original within 365
days
of its submission for recordation. In the event that the Servicer cannot provide
a copy of such document certified by the public recording office within such
365
day period, the Servicer shall deliver to the Custodian, within such 365 day
period, an Officers’ Certificate of the Servicer which shall (A) identify the
recorded document, (B) state that the recorded document has not been delivered
to the Custodian due solely to a delay caused by the public recording office,
(C) state the amount of time generally required by the applicable recording
office to record and return a document submitted for recordation, if known
and
(D) specify the date the applicable recorded document is expected to be
delivered to the Custodian, and, upon receipt of a copy of such document
certified by the public recording office, the Servicer shall immediately deliver
such document to the Custodian. In the event the appropriate public recording
office will not certify as to the accuracy of such document, the Servicer shall
deliver a copy of such document certified by an officer of the Servicer to
be a
true and complete copy of the original to the Custodian.
The
parties hereto understand and agree that it is not intended that any Mortgage
Loan be included in the Trust that is a high-cost home loan as defined by the
Homeownership and Equity Protection Act of 1994 or any other applicable
predatory or abusive lending laws.
The
Depositor hereby directs the Trustee to execute, deliver and perform its
obligations under the Interest Rate Swap Agreement (in its capacity as
Supplemental Interest Trust Trustee) and the Cap Contract. The Depositor, the
Servicer and the Holders of the Fixed Rate Certificates and the Floating Rate
Certificates by their acceptance of such Certificates acknowledge and agree
that
the Trustee shall execute, deliver and perform its obligations under the
Interest Rate Swap Agreement and the Cap Contract and shall do so solely in
its
capacity as Trustee or as Supplemental Interest Trust Trustee, as the case
may
be, and not in its individual capacity. Every provision of this Agreement
relating to the conduct or affecting the liability of or affording protection
to
the Trustee shall apply to the Trustee’s execution of the Interest Rate Swap
Agreement and the Cap Contract, and the performance of its duties and
satisfaction of its obligations thereunder.
| SECTION 2.02 |
Acceptance
by Trustee.
|
Subject
to the provisions of Section 2.01 and subject to the review described below
and
any exceptions noted on the exception report described in the next paragraph
below, the Trustee acknowledges receipt by it or the Custodian on its behalf
of
the documents referred to in Section 2.01 above and all other assets included
in
the definition of “Trust Fund” and declares that it (or the Custodian on its
behalf) 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 “Trust Fund” in trust for
the exclusive use and benefit of all present and future
Certificateholders.
The
Trustee agrees that it (or a Custodian will agree on its behalf) shall, for
the
benefit of the Certificateholders, review, or that it or a Custodian on its
behalf has reviewed pursuant to Section 2.01 each Mortgage File on or prior
to
the Closing Date, with respect to each Mortgage Loan (or, with respect to any
document delivered after the Startup Day, within 45 days of receipt and with
respect to any Qualified Substitute Mortgage Loan, within 45 days after the
assignment thereof). The Trustee further agrees that it or a Custodian on its
behalf shall, for the benefit of the Certificateholders, certify to the
Depositor and the Servicer (with
a
copy to the NIMS Insurer)
in
substantially the form attached hereto as Exhibit F-1, within 45 days after
the
Closing Date, with respect to each Mortgage Loan (or, with respect to any
document delivered after the Startup Day, within 45 days of receipt and with
respect to any Qualified Substitute Mortgage, within 45 days after the
assignment thereof) that, as to each Mortgage Loan listed in the respective
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 required to be
delivered to it (or the Custodian on its behalf) pursuant to Section 2.01 of
this Agreement are in its possession, (ii) such documents have been reviewed
by
it (or the Custodian on its behalf) and have not been mutilated, damaged or
torn
and appear on their face to relate to such Mortgage Loan and (iii) based on
its
examination and only as to the foregoing, the information set forth in the
Mortgage Loan Schedule that corresponds to items (1) and (3) of the 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 to inspect, review
or
examine any such documents, instruments, certificates or other papers to
determine that they are genuine, legally enforceable, valid or binding or
appropriate for the represented purpose or that they have actually been recorded
or that they are other than what they purport to be on their face.
Prior
to
the first anniversary date of this Agreement the Trustee (or the Custodian
on
its behalf) shall deliver to the Depositor and the Servicer, with a copy to
the
NIMS Insurer a final certification in the form annexed hereto as Exhibit F-2,
with any applicable exceptions noted thereon.
If
in the
process of reviewing the Mortgage Files and making or preparing, as the case
may
be, the certifications referred to above, the Trustee (or the Custodian, as
applicable) finds any document or documents constituting a part of a Mortgage
File to be missing or not to conform with respect to any characteristics which
are within the scope of the Trustee’s (or the Custodian’s, as applicable) review
as provided herein, at the conclusion of its review, the Trustee shall so notify
the Originator, the Seller, the Depositor, the NIMS Insurer and the Servicer.
In
addition, upon the discovery by the Depositor, the NIMS Insurer or the Servicer
(or upon receipt by the Trustee of written notification of such breach) of
a
breach of any of the representations and warranties made by the Originator
in
the Master Agreement or the Seller in the Assignment Agreement in respect of
any
Mortgage Loan which materially adversely affects such Mortgage Loan or the
interests of the related Certificateholders in such Mortgage Loan, the party
discovering such breach shall give prompt written notice to the NIMS Insurer
and
the other parties to this Agreement.
The
Depositor and the Trustee intend that the assignment and transfer herein
contemplated constitute 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 Originator or the
Seller.
|
(a) Upon
discovery or receipt of written notice of any materially defective document
in,
or that a document is missing from, a Mortgage File or of the breach by the
Originator or the Seller of any representation, warranty or covenant under
the
Master Agreement or the Assignment Agreement, as applicable, in respect of
any
Mortgage Loan which materially adversely affects the value of such Mortgage
Loan
or the interest therein of the Certificateholders, the Trustee (or the Custodian
on its behalf) shall promptly notify the NIMS Insurer and the Servicer of such
defect, missing document or breach and the Servicer shall request that the
Originator deliver such missing document or that the Originator or the Seller
cure such defect or breach within 90 days from the date the Originator or the
Seller was notified of such missing document, defect or breach, and if the
Originator or the Seller does not deliver such missing document or cure such
defect or breach in all material respects during such period, the Servicer
shall
use commercially reasonable efforts to attempt to enforce the Originator’s
obligation under the Master Agreement or the Seller’s obligation under the
Assignment Agreement and notify the Originator or the Seller, as applicable,
of
its obligation to repurchase such Mortgage Loan from the Trust Fund at the
Purchase Price on or prior to the Determination Date following the expiration
of
such 90 day period (subject to Section 2.03(e)); provided, however, that the
Servicer shall not be under any obligation to take any action pursuant to this
paragraph unless directed by the Depositor and provided, further, the Depositor
hereby agrees to assist the Servicer in enforcing any obligations of the
Originator to repurchase or substitute for a Mortgage Loan which has breached
a
representation or warranty under the Master Agreement or the Seller’s obligation
under the Assignment Agreement and notify the Originator or the Seller, as
applicable,. of its obligation to repurchase such Mortgage Loan from the Trust
Fund at the Purchase Price on or prior to the Determination Date following
the
expiration of such 90 day period (subject to Section 2.03(e)). The Purchase
Price for the repurchased Mortgage Loan shall be remitted to the Servicer for
deposit in the Collection 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 Originator or the Seller, as applicable, the
related Mortgage File and shall execute and deliver such instruments of transfer
or assignment, in each case without recourse, as the Originator or the Seller,
as applicable, shall furnish to it and as shall be necessary to vest in the
Originator or the Seller, as applicable, any Mortgage Loan released pursuant
hereto and the Trustee shall have no further responsibility with regard to
such
Mortgage File (it being understood that neither the Trustee nor the Custodian
shall have any responsibility for determining the sufficiency of such assignment
for its intended purpose). In lieu of repurchasing any such Mortgage Loan as
provided above, the Originator or the Seller, as applicable, may cause such
Mortgage Loan to be removed from the Trust Fund (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(d);
provided, however, the Originator or the Seller, as applicable,may not
substitute for any Mortgage Loan which breaches a representation or warranty
regarding abusive or predatory lending laws. In furtherance of the foregoing,
if
the Originator or the Seller, as applicable, is not a member of MERS and
repurchases a Mortgage Loan which is registered on the MERS® System, the
Originator or the Seller, as applicable, at its own expense and without any
right of reimbursement, shall cause MERS to execute and deliver an assignment
of
the Mortgage in recordable form to transfer the Mortgage from MERS to the
Originator or the Seller, as applicable, and shall cause such Mortgage to be
removed from registration on the MERS® System in accordance with MERS’ rules and
regulations. It is understood and agreed that the obligation of the Originator
or the Seller, as applicable, to cure or to repurchase (or to substitute for)
any Mortgage Loan as to which a document is missing, a material defect in a
constituent document exists or as to which such a breach has occurred and is
continuing shall constitute the sole remedy against the Originator or the
Seller, as applicable, respecting such omission, defect or breach available
to
the Trustee on behalf of the Certificateholders.
(b) Within
90
days of the earlier of discovery by the Depositor or receipt of notice by the
Depositor of the breach of any representation, warranty or covenant of the
Depositor set forth in Section 2.06, which materially and adversely affects
the
interests of the Certificateholders in any Mortgage Loan, the Depositor shall
cure such breach in all material respects.
(c) Within
90
days of the earlier of discovery by the Servicer or receipt of notice by the
Servicer of the breach of any representation, warranty or covenant of the
Servicer set forth in Section 2.05 which materially and adversely affects the
interests of the Certificateholders in any Mortgage Loan, the Servicer shall
cure such breach in all material respects.
(d) Any
substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans
made pursuant to Section 2.03(a) must be effected prior to the last Business
Day
that is within two years after the Closing Date. As to any Deleted Mortgage
Loan
for which the Originator or the Seller, as applicable, substitutes a Qualified
Substitute Mortgage Loan or Loans, such substitution shall be effected by the
Originator or the Seller, as applicable, delivering to the Trustee (or the
Custodian on behalf of the Trustee), for such Qualified Substitute Mortgage
Loan
or Loans, the Mortgage Note, the Mortgage and the Assignment to the Trustee
in
blank, 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 Adjustment (as described
below), if any, in connection with such substitution. The Trustee (or the
Custodian on behalf of the Trustee) shall acknowledge receipt for such Qualified
Substitute Mortgage Loan or Loans and, within 45 days thereafter, shall review
such documents as specified in Section 2.02 and deliver, with respect to such
Qualified Substitute Mortgage Loan or Loans, a certification substantially
in
the form attached hereto as Exhibit F-1 (with a copy to the NIMS Insurer),
with
any applicable exceptions noted thereon. Within one year of the date of
substitution, the Trustee (or the Custodian on behalf of the Trustee) shall
deliver to the Servicer a certification substantially in the form of Exhibit
F-2
hereto (with a copy to the NIMS Insurer) 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 the Trust Fund and will be retained by
the
Originator or the Seller, as applicable,. For the month of substitution,
distributions to Certificateholders will reflect the collections and recoveries
in respect of such Deleted Mortgage Loan in the Due Period preceding the month
of substitution and the Originator 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 NIMS Insurer and the Trustee, who shall forward such
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 NIMS Insurer and the Trustee. Upon such
substitution by the Originator or the Seller, as applicable, 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
Assignment Agreement, including all applicable representations and warranties
thereof included in the Assignment Agreement as of the date of
substitution.
For
any
month in which the Originator 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 Adjustment”), if any,
by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds
the aggregate, as to each such Qualified Substitute Mortgage Loan, of 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 Mortgage
Rate. On the date of such substitution, the Originator or the Seller, as
applicable, will deliver or cause to be delivered to the Servicer for deposit
in
the Collection Account an amount equal to the Substitution Adjustment, if any,
and the Trustee (or the Custodian on behalf of the Trustee), upon receipt of
the
related Qualified Substitute Mortgage Loan or Loans and certification by the
Servicer of such deposit, shall release to the Originator or the Seller, as
applicable, the related Mortgage File or Files and shall execute and deliver
such instruments of transfer or assignment, in each case without recourse,
as
the Originator 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, pursuant to the terms of the Assignment Agreement, the Originator
or
the Seller, as applicable, shall obtain at its own expense and deliver to the
Trustee and the NIMS Insurer an Opinion of Counsel to the effect that such
substitution will not cause (a) any federal tax to be imposed on the Trust
Fund,
including without limitation, any federal tax imposed on “prohibited
transactions” under Section 860F(a)(I) of the Code or on “contributions after
the startup date” under Section 860G(d)(I) of the Code or (b) any REMIC to fail
to qualify as a REMIC at any time that any Certificate is outstanding. If such
Opinion of Counsel can not be delivered, then such substitution may only be
effected at such time as the required Opinion of Counsel can be
given.
(e) Upon
discovery by the Depositor, the Servicer, the NIMS Insurer 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 hereto.
In
connection therewith, the Originator or the Depositor, as the case may be,
shall
repurchase or, subject to the limitations set forth in Section 2.03(d),
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 (i) by the Originator 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 Originator under the Assignment
Agreement or (ii) the Depositor, if the affected Mortgage Loan’s status as a
non-qualified mortgage is a breach of any representation or warranty of the
Depositor set forth in Section 2.06, or if its 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)
or
2.03(d), if made by the Originator, or Section 2.03(b), if made by the
Depositor. The Trustee (or the Custodian on behalf of the Trustee) shall
reconvey to the Depositor or the Originator, as the case may be, 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.
(f) Upon
discovery or receipt of written notice of a breach by the Seller of any
representation, warranty or covenant made by the Seller under the Assignment
Agreement in respect of any Mortgage Loan which materially adversely affects
the
value of such Mortgage Loan or the interest therein of the Certificateholders,
and if either (i) such Mortgage Loan is not in breach of any representation,
warranty or covenant of the Originator or (ii) the Originator has failed to
remedy such representation, warranty or covenant with respect to such Mortgage
Loan, then the Trustee shall enforce the obligation of the Seller to remedy
such
breach, to the extent provided in the Assignment Agreement, in the manner and
within the time periods set forth in the Assignment Agreement.
| SECTION 2.04 |
Intentionally
Omitted.
|
| SECTION 2.05 |
Representations,
Warranties and Covenants of the
Servicer.
|
The
Servicer hereby represents, warrants and covenants to the Trustee, for the
benefit of each of the Trustee and the Certificateholders, and to the Depositor,
that as of the Closing Date or as of such date specifically provided
herein:
(1) The
Servicer is a national banking association duly formed, validly existing and
in
good standing under the laws of the United States of America and is duly
authorized and qualified to transact any and all business contemplated by this
Agreement to be conducted by the 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;
(2) 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;
(3) 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 of by-laws of the Servicer or (B) conflict with, result in a breach,
violation or acceleration of, or result in a default under, the terms of any
other material agreement or instrument to which the Servicer is a party or
by
which it may be bound, or any statute, order or regulation applicable to the
Servicer of any court, regulatory body, administrative agency or governmental
body having jurisdiction over the Servicer; and the Servicer is not a party
to,
bound by, or in breach or violation of any indenture or other agreement or
instrument, or subject to or in violation of any statute, order or regulation
of
any court, regulatory body, administrative agency or governmental body having
jurisdiction over it, which materially and adversely affects or, to the
Servicer’s knowledge, would in the future materially and adversely affect, (x)
the ability of the Servicer to perform its obligations under this Agreement,
(y)
the business, operations, financial condition, properties or assets of the
Servicer taken as a whole or (z) the legality, validity or enforceability of
this Agreement;
(4) The
Servicer is a HUD approved mortgagee pursuant to Section 203 and Section 211
of
the National Housing Act. 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;
(5) 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;
(6) 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;
(7) There
are
no actions or proceedings against, or investigations known to it of, the
Servicer before any court, administrative or other tribunal (A) that might
prohibit its entering into this Agreement, (B) seeking to prevent the
consummation of the transactions contemplated by this Agreement or (C) that
might prohibit or materially and adversely affect the performance by the
Servicer of its obligations under, or the validity or enforceability of, this
Agreement;
(8) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Servicer
of,
or compliance by the Servicer with, this Agreement or the consummation by it
of
the transactions contemplated by this Agreement, except for such consents,
approvals, authorizations or orders, if any, that have been obtained prior
to
the Closing Date;
(9) [reserved];
(10) Neither
this Agreement nor any information, certificate of an officer, statement
furnished in writing or report delivered to the Trustee by the Servicer in
connection with the transactions contemplated hereby contains or will contain
any untrue statement of a material fact;
(11) The
Servicer will not waive any Prepayment Charge unless it is waived in accordance
with the standard set forth in Section 3.01 and such Prepayment Charge shall
not
be imposed in any instance where such Mortgage Loan is accelerated or paid
off
in connection with the workout of a delinquent mortgage or due to the borrower’s
default, notwithstanding that the terms of such Mortgage Loan or state or
federal law might permit the imposition of such Prepayment Charge;
and
(12) 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 (the “Credit Repositories”) in a timely manner.
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 (or the Custodian on behalf of the Trustee) and shall inure to the
benefit of the Trustee, the Depositor and the Certificateholders. Upon discovery
by any of the Depositor, the NIMS Insurer, 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, Prepayment
Charge or the interests therein of the Certificateholders, the party discovering
such breach shall give prompt written notice (but in no event later than two
Business Days following such discovery) to the Servicer, the NIMS Insurer and
the Trustee. 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(11)
above which materially and adversely affects the interests of the Holders of
the
Class P Certificates in any Prepayment Charge, the Servicer must 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 Collection Account. The
foregoing shall not, however, limit any remedies available to the
Certificateholders, the Depositor or the Trustee on behalf of the
Certificateholders, pursuant to the Master Agreement respecting a breach of
the
representations, warranties and covenants of the Originator.
| SECTION 2.06 |
Representations
and Warranties of the Depositor.
|
The
Depositor represents and warrants to the Trust, the Servicer and the Trustee
on
behalf of the Certificateholders as follows:
(i) This
agreement constitutes a legal, valid and binding obligation of the Depositor,
enforceable against the Depositor in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
affecting the enforcement of creditors’ rights in general and except as such
enforceability may be limited by general principles of equity (whether
considered in a proceeding at law or in equity);
(ii) Immediately
prior to the sale and assignment by the Depositor to the Trustee on behalf
of
the Trust of each Mortgage Loan, the Depositor had good and marketable title
to
each Mortgage Loan (insofar as such title was conveyed to it by the Seller)
subject to no prior lien, claim, participation interest, mortgage, security
interest, pledge, charge or other encumbrance or other interest of any
nature;
(iii) As
of the
Closing Date, the Depositor has transferred all right, title and interest in
the
Mortgage Loans to the Trustee on behalf of the Trust;
(iv) The
Depositor has not transferred the Mortgage Loans to the Trustee on behalf of
the
Trust with any intent to hinder, delay or defraud any of its
creditors;
(v) The
Depositor has been duly incorporated and is validly existing as a corporation
in
good standing under the laws of Delaware, with full corporate power and
authority to own its assets and conduct its business as presently being
conducted;
(vi) The
Depositor is not in violation of its articles of incorporation or by-laws or
in
default in the performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Depositor is a party
or
by which it or its properties may be bound, which default might result in any
material adverse changes in the financial condition, earnings, affairs or
business of the Depositor or which might materially and adversely affect the
properties or assets, taken as a whole, of the Depositor;
(vii) The
execution, delivery and performance of this Agreement by the Depositor, and
the
consummation of the transactions contemplated thereby, do not and will not
result in a material breach or violation of any of the terms or provisions
of,
or, to the knowledge of the Depositor, constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Depositor is a party or by which the Depositor is bound
or to which any of the property or assets of the Depositor is subject, nor
will
such actions result in any violation of the provisions of the articles of
incorporation or by-laws of the Depositor or, to the best of the Depositor’s
knowledge without independent investigation, any statute or any order, rule
or
regulation of any court or governmental agency or body having jurisdiction
over
the Depositor or any of its properties or assets (except for such conflicts,
breaches, violations and defaults as would not have a material adverse effect
on
the ability of the Depositor to perform its obligations under this
Agreement);
(viii) To
the
best of the Depositor’s knowledge without any independent investigation, no
consent, approval, authorization, order, registration or qualification of or
with any court or governmental agency or body of the United States or any other
jurisdiction is required for the issuance of the Certificates, or the
consummation by the Depositor of the other transactions contemplated by this
Agreement, except such consents, approvals, authorizations, registrations or
qualifications as (a) may be required under State securities or Blue Sky laws,
(b) have been previously obtained or (c) the failure of which to obtain would
not have a material adverse effect on the performance by the Depositor of its
obligations under, or the validity or enforceability of, this
Agreement;
(ix) There
are
no actions, proceedings or investigations pending before or, to the Depositor’s
knowledge, threatened by any court, administrative agency or other tribunal
to
which the Depositor is a party or of which any of its properties is the subject:
(a) which if determined adversely to the Depositor would have a material adverse
effect on the business, results of operations or financial condition of the
Depositor; (b) asserting the invalidity of this Agreement or the Certificates;
(c) seeking to prevent the issuance of the Certificates or the consummation
by
the Depositor of any of the transactions contemplated by this Agreement, as
the
case may be; or (d) which might materially and adversely affect the performance
by the Depositor of its obligations under, or the validity or enforceability
of,
this Agreement; and
| SECTION 2.07 |
Issuance
of Certificates.
|
The
Trustee (or the Custodian on behalf of the Trustee) acknowledges the assignment
to it of the Mortgage Loans and the delivery to it (or the Custodian on behalf
of the Trustee) of the Mortgage Files, subject to any exceptions noted by the
Custodian in its exception report delivered pursuant to Section 2.02, together
with the assignment to it of all other assets included in the Trust Fund,
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
Certificates in authorized denominations. The interests evidenced by the
Certificates constitute the entire beneficial ownership interest in the Trust
Fund.
| SECTION 2.08 |
[Reserved].
|
| SECTION 2.09 |
Acceptance
of REMIC 1, REMIC 2, REMIC 3, REMIC 4, REMIC 5 and REMIC 6 by the
Trustee;
Conveyance of REMIC Regular Interests; Issuance of
Certificates.
|
(a) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the assets
described in the definition of REMIC 1 for the benefit of the holders of the
REMIC 1 Regular Interests (which are uncertificated) and the Class R
Certificates (in respect of the Class R-1 Interest). The Trustee acknowledges
receipt of the assets described in the definition of REMIC 1 Regular Interests
(which are uncertificated) and declares that it holds and will hold the same
in
trust for the exclusive use and benefit of the holders of the REMIC 1 Regular
Interests and the Class R Certificates (in respect of the Class R-1 Interest).
The interests evidenced by the Class R-1 Interest, together with the REMIC
1
Regular Interests, constitute the entire beneficial ownership interest in REMIC
1.
(b) The
Depositor concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the REMIC
1 Regular Interests for the benefit of the holders of the REMIC 2 Regular
Interests and the Class R Certificates (in respect of the Class R-2 Interest).
The Trustee acknowledges receipt of the REMIC 1 Regular Interests and declares
that it holds and will hold the same in trust for the exclusive use and benefit
of the holders of the REMIC 2 Regular Interests and the Class R Certificates
(in
respect of the Class R-2 Interest). The interests evidenced by the Class R-2
Interest, together with the REMIC 2 Regular Interests, constitute the entire
beneficial ownership interest in REMIC 2.
(c) The
Depositor concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the REMIC
2 Regular Interests for the benefit of the holders of the Class A Certificates,
Mezzanine Certificates, the Class B Certificates, the Class C Interest, the
Class P Interest, the Class IO Interest and the Class R Certificates (in respect
of the Class R-3 Interest). The Trustee acknowledges receipt of the REMIC 2
Regular Interests and declares that it holds and will hold the same in trust
for
the exclusive use and benefit of the holders of the Class A Certificates,
Mezzanine Certificates, the Class B Certificates, the Class C Interest, the
Class P Interest, the Class IO Interest and the Class R Certificates (in respect
of the Class R-3 Interest). The interests evidenced by the Class R-3 Interest,
together with the Class A Certificates, Mezzanine Certificates, the Class B
Certificates, the Class C Interest, the Class P Interest and the Class IO
Interest, constitute the entire beneficial ownership interest in REMIC
3.
(d) The
Depositor concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the Class
C Interest (which is uncertificated) for the benefit of the Holders of the
Class
C Certificates and the Class R-X Certificates (in respect of the Class R-4
Interest). The interests evidenced by the Class R-4 Interest, together with
the
Class C Certificates, constitute the entire beneficial ownership interest in
REMIC 4.
(e) The
Depositor concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the Class
P Interest (which is uncertificated) for the benefit of the Holders of the
Class
P Certificates and the Class R-X Certificates (in respect of the Class R-5
Interest). The interests evidenced by the Class R-5 Interest, together with
the
Class P Certificates, constitute the entire beneficial ownership interest in
REMIC 5.
(f) The
Depositor concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the Class
IO Interest (which is uncertificated) for the benefit of the Holders of the
REMIC 6 Regular Interest SWAP IO and the Class R-X Certificates (in respect
of
the Class R-6 Interest). The interests evidenced by the Class R-6 Interest,
together with the REMIC 6 Regular Interest SWAP IO, constitute the entire
beneficial ownership interest in REMIC 6
(g) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey in trust to the Trustee without
recourse all the right, title and interest of the Depositor in and to the assets
described in the definition of REMIC 1 for the benefit of the holders of the
REMIC 1 Regular Interests (which are uncertificated) and the Class R
Certificates (in respect of the Class R-1 Interest). The Trustee acknowledges
receipt of the assets described in the definition of REMIC 1 and declares that
it holds and will hold the same in trust for the exclusive use and benefit
of
the holders of the REMIC 1 Regular Interests and the Class R Certificates (in
respect of the Class R-1 Interest). The interests evidenced by the Class R-1
Interest, together with the REMIC 1 Regular Interests, constitute the entire
beneficial ownership interest in REMIC 1.
(h) In
exchange for the REMIC 2 Regular Interests and, concurrently with the assignment
to the Trustee thereof, 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 Regular Certificates
(other than the Class C Certificates and Class P Certificates) in authorized
denominations, which Certificates, together with the Class C Interests and
Class
P Interests and the Class R Certificates (in respect of the Class R-3 Interest),
evidence the entire beneficial ownership interest in REMIC 3.
(i) In
exchange for the Class C Interest and, concurrently with the assignment to
the
Trustee thereof, 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 C Certificates in authorized
denominations, which Certificates, together with the Class R-X Certificates
(in
respect of the Class R-4 Interest), evidence the entire beneficial ownership
interest in REMIC 4.
(j) In
exchange for the Class P Interest and, concurrently with the assignment to
the
Trustee thereof, 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 P Certificates in authorized
denominations, which Certificates, together with the Class R-X Certificates
(in
respect of the Class R-5 Interest), evidence the entire beneficial ownership
interest in REMIC 5.
(k) In
exchange for REMIC 6 Regular Interest SWAP IO and, concurrently with the
assignment to the Trustee thereof, 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, REMIC 6
Regular Interest SWAP IO (which shall be uncertificated) in authorized
denominations, which, together with the Class R-X Certificates (in respect
of
the Class R-6 Interest), evidence the entire beneficial ownership interest
in
REMIC 6.
(l) Concurrently
with (i) the assignment and delivery to the Trustee of REMIC 1 (including the
Residual Interest therein represented by the Class R-1 Interest) and the
acceptance by the Trustee thereof, pursuant to Section 2.01, Section 2.02 and
Section 2.09(a), (ii) the assignment and delivery to the Trustee of REMIC 2
(including the Residual Interest therein represented by the Class R-2 Interest)
and the acceptance by the Trustee thereof, pursuant to Section 2.09(b), (iii)
the assignment and delivery to the Trustee of REMIC 3 (including the Residual
Interest therein represented by the Class R-3 Interest) and the acceptance
by
the Trustee thereof, pursuant to Section 2.09(c), (iv) the assignment and
delivery to the Trustee of REMIC 4 (including the Residual Interest therein
represented by the Class R-4 Interest) and the acceptance by the Trustee
thereof, pursuant to Section 2.09(d), (v) the assignment and delivery to the
Trustee of REMIC 5 (including the Residual Interest therein represented by
the
Class R-5 Interest) and the acceptance by the Trustee thereof, pursuant to
Section 2.09(e) and (vi) the assignment and delivery to the Trustee of REMIC
6
(including the Residual Interest therein represented by the Class R-6 Interest)
and the acceptance by the Trustee thereof, pursuant to Section 2.09(f), 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 (evidencing the Class R-1 Interest,
the
Class
R-2 Interest
and the
Class R-3 Interest) and the Class R-X Certificates (evidencing the Class R-4
Interest, the Class R-5 Interest and the Class R-6 Interest) in authorized
denominations.
ARTICLE
III
ADMINISTRATION
AND SERVICING
OF
THE
MORTGAGE LOANS
| SECTION 3.01 |
Servicer
to Act as Servicer.
|
Fremont
Investment & Loan shall service and administer the Mortgage Loans from the
Cut-off Date through and including June 30, 2006 in accordance with the Master
Agreement. Xxxxx Fargo shall service and administer the Mortgage Loans,
beginning on July 1, 2006, 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, giving due consideration to customary and usual standards
of
practice of prudent mortgage lenders and loan servicers administering similar
mortgage loans but without regard to:
(i) any
relationship that the Servicer, any Sub-Servicer or any Affiliate of the
Servicer or any Sub-Servicer may have with the related Mortgagor;
(ii) the
ownership or non-ownership of any Certificate by the Servicer or any Affiliate
of the Servicer;
(iii) the
Servicer’s obligation to make Advances or Servicing Advances; or
(iv) the
Servicer’s or any Sub-Servicer’s right to receive compensation for its services
hereunder or with respect to any particular transaction.
To
the
extent consistent with the foregoing, the Servicer (a) shall seek 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 such waiver relates to a default or a
reasonably foreseeable default and would, in the reasonable judgment of the
Servicer, maximize recovery of total proceeds taking into account the value
of
such Prepayment Charge and the related Mortgage Loan, (ii) the collection of
such Prepayment Charge would be in violation of applicable laws, (iii) the
amount of the Prepayment Charge set forth on the Prepayment Charge Schedule
is
not consistent with the related Mortgage Note or is otherwise unenforceable,
(iv) the collection of such Prepayment Charge would be considered “predatory”
pursuant to written guidance published or issued by any applicable federal,
state or local regulatory authority acting in its official capacity and having
jurisdiction over such matters or (v) the Mortgage Loan has been accelerated
or
paid off in connection with the workout or borrower default, notwithstanding
that the terms of such Mortgage Loan or state or federal loaw might permit
the
imposition of a Prepayment Charge. If a Prepayment Charge is waived as permitted
by meeting the standard described in clauses (ii), (iii) or (iv) above, then
the
Trustee (upon receipt of written notice from the Servicer that such waiver
has
occurred) shall enforce the obligation of the Originator to pay the amount
of
such waived Prepayment Charge to the Trustee for deposit in the Distribution
Account for the benefit of the Holders of the Class P Certificates. If a
Prepayment Charge is waived other than in accordance with (i), (ii), (iii)
or
(iv) above, the Servicer shall pay the amount of such waived Prepayment Charge
to the Trustee for deposit in the Distribution Account for the benefit of the
Holders of the Class P Certificates.
To
the
extent consistent with the foregoing, the Servicer shall also seek to maximize
the timely and complete recovery of principal and interest on the Mortgage
Notes. 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 in
accordance with the servicing standards set forth above, to execute and deliver,
on behalf of the Certificateholders and the Trustee, and upon 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 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 such documents as are necessary or appropriate to enable the
Servicer or any Sub-Servicer to carry out their servicing and administrative
duties hereunder, and the Trustee hereby grants to the Servicer a power of
attorney to carry out such duties. The Trustee shall not be liable for the
actions of the Servicer or any Sub-Servicers under such powers of
attorney.
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 provided,
however, that (subject to Section 3.07) the Servicer may capitalize the amount
of any Servicing Advances incurred pursuant to this Section 3.01 in connection
with the modification of a Mortgage Loan.
The
Servicer further is authorized and empowered by the Trustee, on behalf of the
Certificateholders and the Trustee, in its own name or in the name of the
Sub-Servicer, when the Servicer or the Sub-Servicer, as the case may be,
believes it is appropriate in its best judgment to register any Mortgage Loan
on
the MERS System, or cause the removal from the registration of any Mortgage
Loan
on the MERS System, to execute and deliver, on behalf of the Trustee and the
Certificateholders or any of them, any and all instruments of assignment and
other comparable instruments with respect to such assignment or re-recording
of
a Mortgage in the name of MERS, solely as nominee for the Trustee and its
successors and assigns. Any reasonable expenses (i) incurred as a result of
MERS
discontinuing or becoming unable to continue operations in connection with
the
MERS System or (ii) if the affected Mortgage Loan is in default or, in the
judgment of the Servicer, such default is reasonably foreseeable, incurred
in
connection with the actions described in the preceding sentence, shall be
subject to withdrawal by the Servicer from the Collection Account.
Notwithstanding
anything in this Agreement to the contrary, the Servicer may not make any future
advances (other than Servicing Advances) with respect to a Mortgage Loan (except
as provided in Section 4.04) and the Servicer shall not (i) permit any
modification with respect to any Mortgage Loan (except with respect to a
Mortgage Loan that is in default or, in the judgment of the Servicer, such
default is reasonably foreseeable) 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
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 final, temporary or proposed Treasury
Regulations promulgated thereunder) and (B) cause any 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.
Notwithstanding
anything in this Agreement to the contrary and notwithstanding its ability
to do
so pursuant to the terms of the related mortgage note, the Servicer shall not
be
required to enforce any provision in any mortgage note the enforcement of which
would violate federal, state or local laws or ordinances designed to discourage
predatory lending practices.
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;
Subcontractors.
|
(a) The
Servicer may enter into Sub-Servicing Agreements (provided that such agreements
would not result in a withdrawal or a downgrading by the Rating Agencies of
the
rating on any Class of Certificates) with Sub-Servicers, for the servicing
and
administration of the Mortgage Loans; provided, however, that each such
sub-servicing arrangement and the terms of the related Sub-Servicing Agreement
must provide for the servicing of Mortgage Loans in a manner consistent with
the
servicing arrangement contemplated hereunder.
(b) Each
Sub-Servicer shall be (i) authorized to transact business in the state or states
in which 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, 3.20 or 3.21 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. 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), Section 3.20 or Section
3.21,
are conclusively deemed to be inconsistent with this Agreement and therefore
prohibited. The Servicer shall deliver to the Trustee copies of all
Sub-Servicing Agreements and any amendments or modifications thereof, promptly
upon the Servicer’s execution and delivery of such instruments.
(c) As
part
of its servicing activities hereunder, the Servicer (except as otherwise
provided in the last sentence of this paragraph), 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 such enforcement 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.
(d) It
shall
not be necessary for the Servicer to seek the consent of the Depositor or the
Trustee to the utilization of any Subcontractor. The Servicer shall promptly,
upon request, provide to the Depositor and the Trustee a written description
(in
form and substance satisfactory to the the Depositor and the Trustee) 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
Relevant Servicing Criteria will be addressed in assessments of compliance
provided by each Subcontractor identified pursuant to (e) below.
(e) 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 Depositor and the
Trustee to comply with the provisions of Sections 3.21 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 the
Depositor and the Trustee any assessment of compliance and attestation required
to be delivered by such Subcontractor under Section 3.21, in each case as and
when required to be delivered.
| 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 successor
Servicer) without fee, in accordance with the terms of this Agreement, in the
event that the Servicer, shall, for any reason, no longer be the Servicer
(including termination due to a Servicer Event of Termination).
| SECTION 3.04 |
Liability
of the Servicer.
|
Notwithstanding
any Sub-Servicing Agreement, any of 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 and the Trustee or
Certificateholders.
|
Any
Sub-Servicing Agreement that may be entered into and any 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.
| SECTION 3.06 |
Assumption
or Termination of Sub-Servicing
Agreements.
|
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 Termination), the Trustee (or
the successor servicer appointed pursuant to Section 7.02) 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 elects to terminate any Sub-Servicing Agreement in accordance with
its
terms as provided in Section 3.03. Upon such assumption, the Trustee (or the
successor servicer 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 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 the Sub-Servicing
Agreements to the assuming party.
| 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 and the servicing
standards set forth in Section 3.01, the Servicer may in its discretion (i)
waive any late payment charge or, if applicable, penalty interest or (ii) extend
the due dates for Monthly Payments due on a Mortgage Note for a period of not
greater than 180 days; provided 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 arrangements. 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 waive, modify
or
vary any term of such Mortgage Loan (including, but not limited to,
modifications that change the Mortgage Rate, forgive the payment of principal
or
interest or extend the final maturity date of such Mortgage Loan), accept
payment from the related Mortgagor of an amount less than the Stated Principal
Balance in final satisfaction of such Mortgage Loan (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 if in the Servicer’s
determination such waiver, modification, postponement or indulgence is not
materially adverse to the interests of the Certificateholders (taking into
account any estimated Realized Loss that might result absent such action);
provided, however, the Servicer shall not modify any Mortgage Loan in a manner
that would capitalize the amount of any unpaid Monthly Payments or tax or
insurance payments advanced by the Servicer on the Mortgagor’s behalf unless the
related Mortgagor shall have remitted an amount equal to a full Monthly Payment
(or, in the case of any Mortgage Loan subject to a forbearance plan or
bankruptcy plan, a full modified monthly payment under such plan) in each of
the
three calendar months immediately preceding the month of such
modification.
| 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 Collection Account. The
Sub-Servicer shall deposit in the Sub-Servicing Account, in no event more than
two Business Days 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. The Sub-Servicer shall
thereafter remit such proceeds to the Servicer for deposit in the Collection
Account not later than two Business Days after the deposit of such amounts
in
the Sub-Servicing Account. For purposes of this Agreement, the Servicer shall
be
deemed to have received payments on the Mortgage Loans when the Sub-Servicer
receives such payments.
| SECTION 3.09 |
Collection
of Taxes, Assessments and Similar Items; Servicing
Accounts.
|
To
the
extent the terms of a Mortgage provide for Escrow Payments, the Servicer shall
establish and maintain one or more accounts (the “Servicing Accounts”), into
which all collections from the Mortgagors (or related advances from
Sub-Servicers) for the payment of taxes, assessments, fire, flood, and hazard
insurance premiums, hazard insurance proceeds (to the extent such amounts are
to
be applied to the restoration or repair of the property) 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 Servicing Accounts on a daily basis and in no event later than
the second Business Day after receipt, and retain therein, all Escrow Payments
collected on account of the Mortgage Loans, for the purpose of effecting the
timely payment of any such items as required under the terms of this Agreement.
Withdrawals of amounts from a Servicing Account may be made only to (i) effect
timely payment of taxes, assessments, fire, flood, and hazard insurance
premiums, and comparable items; (ii) reimburse the Servicer 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 fire, flood and hazard
insurance); (iii) refund to Mortgagors any sums as may be determined to be
overages; (iv) pay interest, if required and as described below, to Mortgagors
on balances in the Servicing Account; or (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 shall pay to the Mortgagors
interest on funds in Servicing Accounts, to the extent required by law and,
to
the extent that interest earned on funds in the Servicing Accounts is
insufficient, to pay such interest from its or their own funds, without any
reimbursement therefor. Notwithstanding the foregoing, the Servicer shall not
be
obligated to collect Escrow Payments if the related Mortgage Loan does not
require such payments but the Servicer shall nevertheless be obligated to make
Servicing Advances as provided in Section 3.01. In the event the Servicer shall
deposit in the Servicing Accounts any amount not required to be deposited
therein, it may at any time withdraw such amount from the Servicing Accounts,
any provision to the contrary notwithstanding.
To
the
extent that a Mortgage does not provide for Escrow Payments, the Servicer (i)
shall determine whether any such payments are made by the Mortgagor in a manner
and at a time that is necessary to avoid the loss of the Mortgaged Property
due
to a tax sale or the foreclosure as a result of a tax lien and (ii) shall ensure
that all insurance required to be maintained on the Mortgaged Property pursuant
to this Agreement is maintained. If any such payment has not been made and
the
Servicer receives notice of a tax lien with respect to the Mortgage Loan being
imposed, the Servicer will, to the extent required to avoid loss of the
Mortgaged Property, advance or cause to be advanced funds necessary to discharge
such lien on the Mortgaged Property. The Servicer assumes full responsibility
for the payment of all such bills and shall effect payments of all such bills
irrespective of the Mortgagor’s faithful performance in the payment of same or
the making of the Escrow Payments and shall make Servicing Advances from its
own
funds to effect such payments.
| SECTION 3.10 |
Collection
Account.
|
(a) On
behalf
of the Trust Fund, the Servicer shall establish
and maintain one or more separate, segregated trust accounts (such account
or
accounts, the “Collection 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 (which account must be an Eligible 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 two Business Days after the Servicer’s receipt thereof, and shall
thereafter deposit in the Collection Account, in no event more than one Business
Day after the deposit of such funds into the clearing account, as and when
received or as otherwise required hereunder, the following payments and
collections received or made by it from and after the Cut-off Date (other than
in respect of principal or interest on the related Mortgage Loans due on or
before the Cut-off Date), or payments (other than Principal Prepayments)
received by it on or prior to the Cut-off Date but allocable to a Due Period
subsequent thereto:
(i) all
payments on account of principal, including Principal Prepayments (but not
Prepayment Charges), on the Mortgage Loans;
(ii) all
payments on account of interest (net of the related Servicing Fee and any
Prepayment Interest Excess) on each Mortgage Loan;
(iii) all
Insurance Proceeds and Liquidation Proceeds (other than proceeds collected
in
respect of any particular REO Property and amounts paid by the Servicer in
connection with a purchase of Mortgage Loans and REO Properties pursuant to
Section 9.01);
(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
Collection 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 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.
For
purposes of the immediately preceding sentence, the Cut-off Date with respect
to
any Qualified Substitute Mortgage Loan shall be deemed to be the date of
substitution.
The
foregoing requirements for deposit in the Collection Accounts shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments in the nature of late payment charges or assumption
fees (other than Prepayment Charges) need not be deposited by the Servicer
in
the Collection Account. In the event the Servicer shall deposit in the
Collection Account any amount not required to be deposited therein, it may
at
any time withdraw such amount from the Collection Account, any provision herein
to the contrary notwithstanding.
(b) On
behalf
of the Trust Fund, the Servicer shall deliver to the Trustee in immediately
available funds for deposit in an account established and maintained by the
Trustee, held in trust for the benefit of the Certificateholders (the
“Distribution Account”): (i) on the Servicer Remittance Date, that portion of
the Available Funds for the related Distribution Date then on deposit in the
Collection Account, 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 Collection Account and (ii) on each
Business Day as of the commencement of which the balance on deposit in the
Collection Account exceeds $75,000 following any withdrawals pursuant to the
next succeeding sentence, the amount of such excess, but only if the Collection
Account constitutes an Eligible Account solely pursuant to clause (ii) of the
definition of “Eligible Account.” If the balance on deposit in the Collection
Account exceeds $75,000 as of the commencement of business on any Business
Day
and the Collection Account constitutes an Eligible Account solely pursuant
to
clause (ii) of the definition of “Eligible Account,” the Servicer shall, on such
Business Day, withdraw from the Collection Account any and all amounts payable
or reimbursable to the Depositor, the Servicer, the Trustee, the Seller or
any
Sub-Servicer pursuant to Section 3.11 and shall pay such amounts to the Persons
entitled thereto.
(c) Funds
in
the Collection Account may be invested in Permitted Investments in accordance
with the provisions set forth in Section 3.12. The Servicer shall give advance
notice to the Trustee of the location of the Collection Account maintained
by it
when established and prior to any change thereof. The Trustee shall forward
such
notice to the Depositor.
(d) Funds
held in the Collection Account at any time may be delivered by the Servicer
to
the Trustee for deposit in an account (which may be the Distribution Account
and
must satisfy the standards for the Distribution Account as set forth in the
definition thereof) and for all purposes of this Agreement shall be deemed
to be
a part of the Collection Account; provided, however, that the Trustee shall
have
the sole authority to withdraw any funds held pursuant to this subsection (d).
In the event the Servicer shall deliver to the Trustee for deposit in the
Distribution Account any amount not required to be deposited therein, it may
at
any time request that the Trustee withdraw such amount from the Distribution
Account and remit to it any such amount, any provision herein to the contrary
notwithstanding. In addition, the Servicer shall deliver to the Trustee from
time to time for deposit, and upon written notification from the Servicer,
the
Trustee shall so deposit, in the Distribution 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 by the Servicer 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 Shortfalls.
(e) The
Servicer shall deposit in the Collection 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 Collection
Account.
| SECTION 3.11 |
Withdrawals
from the Collection Account.
|
The
Servicer shall, from time to time, make withdrawals from the Collection Account
for any of the following purposes, without priority, or as described in Section
4.03:
(i) to
remit
to the Trustee for deposit in the Distribution Account the amounts required
to
be so remitted pursuant to Section 3.10(b) or permitted to be so remitted
pursuant to the first sentence of Section 3.10(d);
(ii) subject
to Section 3.16(d), to reimburse the Servicer for 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 (A) any unpaid
Servicing Fees, (B) any unreimbursed Servicing Advances with respect to each
Mortgage Loan, but only to the extent of any Liquidation Proceeds, Insurance
Proceeds or other amounts as may be collected by the Servicer from a Mortgagor,
or otherwise received with respect to such Mortgage Loan and (C) without
limiting any right of withdrawal set forth in clause (vi) below, any Servicing
Advances made with respect to a Mortgage Loan that, following the final
liquidation of a Mortgage Loan are Nonrecoverable Advances, but only to the
extent that Late Collections, Liquidation Proceeds and Insurance Proceeds
received with respect to such Mortgage Loan are insufficient to reimburse the
Servicer or any Sub-Servicer for such 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 Collection Account;
(v) to
pay to
the Servicer or the Seller, as the case may be, with respect to each Mortgage
Loan that has previously been purchased or replaced pursuant to Section 2.03
or
Section 3.16(c) all amounts received thereon subsequent to the date of purchase
or substitution, as the case may be;
(vi) to
reimburse the Servicer for any Advance or Servicing Advance previously made
which the Servicer has determined to be a Nonrecoverable Advance or
Nonrecoverable Servicing Advance in accordance with the provisions of Section
4.03;
(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 6.03;
(viii) to
reimburse the Servicer or the Trustee, as the case may be, for expenses
reasonably incurred in respect of the breach or defect giving rise to the
purchase obligation under Section 2.03 of this Agreement that were included
in
the Purchase Price of the Mortgage Loan, including any expenses arising out
of
the enforcement of the purchase obligation;
(ix) [reserved];
(x) to
pay,
or to reimburse the Servicer for advances in respect of expenses incurred in
connection with any Mortgage Loan pursuant to Section 3.16(b); and
(xi) to
clear
and terminate the Collection 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
Collection 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
Collection Account pursuant to subclause (vii) above.
| SECTION 3.12 |
Investment
of Funds in the Collection Account.
|
(a) The
Servicer may direct any depository institution maintaining the Collection
Account (for purposes of this Section 3.12, an “Investment Account”) to invest
the funds in such Investment Account in one or more Permitted Investments
specified in such instruction 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 (in its capacity as such)
or in
the name of a nominee of the Trustee. The Trustee shall be entitled to sole
possession (except with respect to investment direction of funds held in the
Collection Account and the Distribution 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 Trustee shall:
(x) consistent
with any notice required to be given thereunder, demand that payment thereon
be
made on the last day such Permitted Investment may otherwise mature hereunder
in
an amount equal to the lesser of (1) all amounts then payable thereunder and
(2)
the amount required to be withdrawn on such date; and
(y) demand
payment of all amounts due thereunder promptly upon determination by a
Responsible Officer of the Trustee that such Permitted Investment would not
constitute a Permitted Investment in respect of funds thereafter on deposit
in
the Investment Account.
(b) All
income and gain realized from the investment of funds deposited in the
Collection 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. The
Servicer shall deposit in the Collection Account the amount of any loss of
principal incurred in respect of any such Permitted Investment made with funds
in such accounts immediately upon realization of such loss.
(c) Except
as
otherwise expressly provided in this Agreement, if any default occurs in the
making of a payment due under any Permitted Investment, or if a default occurs
in any other performance required under any Permitted Investment, the Trustee
may and, subject to Section 8.01 and Section 8.02(a)(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.
| SECTION 3.13 |
[Reserved].
|
| SECTION 3.14 |
Maintenance
of Hazard Insurance and Errors and Omissions and Fidelity
Coverage.
|
The
terms
of each Mortgage Note require the related Mortgagor to maintain fire, flood
and
hazard insurance policies. To the extent such policies are not maintained,
the
Servicer shall cause to be maintained for each Mortgaged Property fire and
hazard insurance with extended coverage as is customary in the area where the
Mortgaged Property is located in an amount which is at least equal to the lesser
of the current principal balance of such Mortgage Loan and the amount necessary
to fully compensate for any damage or loss to the improvements which are a
part
of such property on a replacement cost basis, in each case in an amount not
less
than such amount as is necessary to avoid the application of any coinsurance
clause contained in the related hazard insurance policy. The Servicer shall
also
cause to be maintained fire, flood and hazard insurance on each REO Property
with extended coverage as is customary in the area where the Mortgaged Property
is located in an amount which is at
least
equal to the lesser of (i) 100% of the insurable value on a replacement cost
basis of the improvements securing such Mortgage Loan and (ii) the greater
of
(a) the outstanding principal balance of the Mortgage Loan and (b) an amount
such that the proceeds of such insurance shall be sufficient to prevent the
application to the Mortgagor or the loss payee of any coinsurance clause under
the policy.
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 Collection 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; provided, however, that the Servicer may capitalize the amount of
any
Servicing Advances incurred pursuant to this Section 3.14 in connection with
the
modification of a Mortgage Loan. 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 at any time during
the
term of the Mortgage Loan, the Servicer determines, in accordance with
applicable law, that a Mortgaged Property is located in a special flood hazard
area and is not covered by flood insurance or is covered in an amount less
than
the amount required by the Flood Disaster Protection Act of 1973, as amended,
the Servicer shall notify the related Mortgagor that the Mortgagor must obtain
such flood insurance coverage, and if said Mortgagor fails to obtain the
required flood insurance coverage within forty-five (45) days after such
notification, the Company shall immediately force place the required flood
insurance on the Mortgagor’s behalf. Such flood insurance shall be in an amount
equal to the lesser of (i) the unpaid principal balance of the related Mortgage
Loan and (ii) the maximum amount of such insurance available for the related
Mortgaged Property under the national flood insurance program (assuming that
the
area in which such Mortgaged Property is located is participating in such
program).
In
the
event that the Servicer shall obtain and maintain a blanket policy with an
insurer having a General Policy Rating of B:VI or better in Best’s Key Rating
Guide 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 Collection Account from its own funds
the
amount not otherwise payable under the blanket policy because of such deductible
clause. In connection with its activities as administrator and servicer of
the
Mortgage Loans, the Servicer agrees to prepare and present, on behalf of itself,
the Trustee, the Trust Fund and the Certificateholders, claims under any such
blanket policy in a timely fashion in accordance with the terms of such
policy.
(a) The
Servicer shall keep in force during the term of this Agreement a policy or
policies of insurance covering errors and omissions for failure in the
performance of its respective obligations under this Agreement, which policy
or
policies shall be in such form and amount that would meet the requirements
of
Xxxxxx Xxx 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 provide to the Trustee evidence of the authorization of the
person signing any certification, statement, copy or other evidence of any
fidelity bond, errors and omissions policy, financial information and reports
or
such other information related to the Servicer or any Sub-Servicer or to the
Servicer’s or such Sub-Servicer’s performance hereunder.
| 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 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 then current underwriting criteria of the Servicer for mortgage
loans similar to the Mortgage Loans. In connection with any assumption or
substitution, the Servicer shall apply such underwriting standards and follow
such practices and procedures as shall be normal and usual in its general
mortgage servicing activities and as it applies to other mortgage loans owned
solely by it. The Servicer shall 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 or substitution of liability agreement
will be retained by the Servicer as additional servicing compensation. In
connection with any such assumption, no material term of the Mortgage Note
(including but not limited to the related Mortgage Rate and the amount of the
Monthly Payment) may be amended or modified, except as otherwise required
pursuant to the terms thereof. The Servicer shall notify the Trustee and the
Custodian that any such substitution or assumption agreement has been completed
by forwarding to the Custodian the executed original of such substitution or
assumption agreement, which document shall be added to the related Mortgage
File
and shall, for all purposes, be considered a part of such Mortgage File to
the
same extent as all other documents and instruments constituting a part
thereof.
Notwithstanding
the foregoing paragraph or any other provision of this Agreement, the Servicer
shall not be deemed to be in default, breach or any other violation of its
obligations hereunder by reason of any assumption of a Mortgage Loan by
operation of law or by the terms of the Mortgage Note or any assumption which
the Servicer may be restricted by law from preventing, for any reason
whatsoever. 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, consistent with the servicing standard set forth in Section
3.01, foreclose upon or otherwise comparably convert the ownership of properties
securing such of the Mortgage Loans as come into and continue in default and
as
to which no satisfactory arrangements can be made for collection of delinquent
payments pursuant to Section 3.07. The Servicer shall be responsible for all
costs and expenses incurred by it in any such proceedings; provided, however,
that such costs and expenses will be recoverable as Servicing Advances by the
Servicer as contemplated in Section 3.11 and Section 3.23. The foregoing is
subject to the provision that, in any case in which Mortgaged Property shall
have suffered damage from an Uninsured Cause, the Servicer shall not be required
to expend its own funds toward the restoration of such property unless it shall
determine in its discretion that such restoration will increase the proceeds
of
liquidation of the related Mortgage Loan after reimbursement to itself for
such
expenses.
(b) Notwithstanding
the foregoing provisions of this Section 3.16 or any other provision of this
Agreement, with respect to any Mortgage Loan as to which the Servicer has
received actual notice of, or has actual knowledge of, the presence of any
toxic
or hazardous substance on the related Mortgaged Property, the Servicer shall
not, on behalf of the Trustee, 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, the Servicer 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 a 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 Collection 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 Collection Account received in respect of the affected
Mortgage Loan or other Mortgage Loans.
If
the
Servicer determines, as described above, that it is in the best economic
interest of the Trust Fund to take such actions as are necessary to bring any
such Mortgaged Property into compliance with applicable environmental laws,
or
to take such action with respect to the containment, clean-up or remediation
of
hazardous substances, hazardous materials, hazardous wastes or petroleum-based
materials affecting any such Mortgaged Property, then the Servicer shall take
such action as it deems to be in the best economic interest of the Trust Fund.
The cost of any such compliance, containment, cleanup or remediation shall
be
advanced by the Servicer, subject to the Servicer’s right to be reimbursed
therefor from the Collection 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 Collection Account received in respect of the affected
Mortgage Loan or other Mortgage Loans.
(c) The
Servicer shall have the right to purchase from REMIC 1 any defaulted Mortgage
Loan that is 90 days or more delinquent, which the Servicer determines in good
faith will otherwise become subject to foreclosure proceedings (evidence of
such
determination to be delivered in writing to the Trustee, in form and substance
satisfactory to the Trustee prior to purchase), at a price equal to the Purchase
Price. The Purchase Price for any Mortgage Loan purchased hereunder shall be
deposited in the Collection Account, and the Trustee, upon receipt of written
certification from the Servicer of such deposit, shall release or cause to
be
released to the Servicer, the related Mortgage File and the Trustee, upon
receipt of written certification from the Servicer, as applicable, of such
deposit, shall execute and deliver such instruments of transfer or assignment,
in each case without recourse, as the Servicer, shall furnish and as shall
be
necessary to vest in the Servicer title to any Mortgage Loan released pursuant
hereto.
(d) Proceeds
received in connection with any Final Recovery Determination, as well as any
recovery resulting from a partial collection of Insurance Proceeds or
Liquidation Proceeds, in respect of any Mortgage Loan, will be applied in the
following order of priority: first, to reimburse the Servicer or any
Sub-Servicer for any related unreimbursed Servicing Advances and Advances,
pursuant to Section 3.11(a)(ii) or (a)(iii)(B); 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)(A).
| SECTION 3.17 |
Trustee
to Cooperate; Release of Mortgage
Files.
|
(a) Upon
the
payment in full of any Mortgage Loan, or the receipt by the Servicer of a
notification that payment in full shall be escrowed in a manner customary for
such purposes, the Servicer will immediately notify the Custodian, by a Request
for Release 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
Collection Account pursuant to Section 3.10 have been or will be so deposited)
of a Servicing Officer and shall request that the Custodian, on behalf of the
Trustee, deliver to it the Mortgage File. Upon
receipt of such certification and request, the Custodian shall within three
Business Days release the related Mortgage File to the Servicer and the Servicer
is authorized to cause the removal from the registration on the MERS® System of
any such Mortgage, if applicable, and to execute and deliver, on behalf of
the
Trustee and the Certificateholders or any of them, any and all instruments
of
satisfaction or cancellation or of partial or full release. No expenses incurred
in connection with any instrument of satisfaction or deed of reconveyance shall
be chargeable to the Collection Account or the Distribution
Account.
(b) From
time
to time and as appropriate for the servicing or foreclosure of any Mortgage
Loan, including, for this purpose, collection under any insurance policy
relating to the Mortgage Loans, the Custodian shall, upon request 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 the Custodian when the need therefor by
the
Servicer no longer exists, unless the Mortgage Loan has been liquidated and
the
Liquidation Proceeds relating to the Mortgage Loan have been deposited in the
Collection Account or 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 to the Custodian, on behalf of the Trustee, a
certificate of a Servicing Officer certifying as to 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 Collection Account have been so deposited,
or
that such Mortgage Loan has become an REO Property, a copy of the Request for
Release shall be released by the Custodian, on behalf of the Trustee, to the
Servicer.
(c) Upon
written certification of a Servicing Officer, the Trustee shall execute and
deliver to the Servicer any court pleadings, requests for trustee’s sale or
other documents reasonably 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 or Liquidation Proceeds to the extent permitted
by Section 3.11(a)(iii)(A) and out of amounts derived from the operation and
sale of an REO Property to the extent permitted by Section 3.23. 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.
Additional
servicing compensation in the form of assumption fees, late payment charges
and
other similar fees and charges (other than Prepayment Charges) shall be retained
by the Servicer (subject to Section 3.24) 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 Collection 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 shall not be
entitled to reimbursement therefor except as specifically provided
herein.
| SECTION 3.19 |
Reports;
Collection Account Statements.
|
Not
later
than fifteen days after each Distribution Date, the Servicer shall forward
to
the Trustee, upon the request of the Trustee, a statement prepared by the
Servicer setting forth the status of the Collection Account as of the close
of
business on the last day of the calendar month relating to such Distribution
Date and showing, for the period covered by such statement, the aggregate amount
of deposits into and withdrawals from the Collection Account of each category
of
deposit specified in Section 3.10(a) and each category of withdrawal specified
in Section 3.11. Such statement may be in the form of the then current Xxxxxx
Xxx Monthly Accounting Report for its Guaranteed Mortgage Pass-Through Program
with appropriate additions and changes, and shall also include information
as to
the aggregate of the outstanding principal balances of all of the Mortgage
Loans
as of the last day of the calendar month immediately preceding such Distribution
Date. 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 the request and at the expense of the
requesting party, provided such statement is delivered by the Servicer to the
Trustee.
| SECTION 3.20 |
Statement
as to Compliance.
|
On
or
before March 1 of each calendar year, commencing in 2007, the Servicer shall
deliver to the Trustee a statement of compliance addressed to the Depositor
and
signed by an authorized officer of the Servicer, to the effect that (a) a review
of the Servicer’s activities during the immediately preceding calendar year (or
applicable portion thereof) and of its performance under this Agreement during
such period has been made under such officer’s supervision, and (b) to the best
of such officers’ knowledge, based on such review, the Servicer has fulfilled
all of its obligations under this Agreement in all material respects throughout
such calendar year (or applicable portion thereof) or, if there has been a
failure to fulfill any such obligation in any material respect, specifically
identifying each such failure known to such officer and the nature and the
status thereof.
The
Servicer shall deliver, or cause to be delivered, a similar Annual Statement
of
Compliance by any Sub-Servicer, Subcontractor or other Person engaged by it
and
satisfying any of the criteria set forth in Item 1108(a)(i)-(iii), to which
the
Servicer has delegated any servicing responsibilities with respect to the
Mortgage Loans, to the Trustee as described above as and when required with
respect to the Servicer.
Each
of
the Servicer and the Trustee (each, an “Indemnifying Party”) shall indemnify and
hold harmless the Depositor and their officers, directors and Affiliates, as
applicable, from and against any actual losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments
and other costs and expenses that such Person may sustain based upon a breach
of
the obligations of such Indemnifying Party under this Section 3.20.
| SECTION 3.21 |
Assessments
of Compliance and Attestation
Reports.
|
(A) On
or
before March 1st
(or
March 15th
with
respect to the Trustee) of each calendar year, commencing in 2007, the Servicer
shall:
(1) deliver
to the Trustee a report (in form and substance reasonably satisfactory to the
Depositor and the Trustee) regarding the Servicer’s assessment of compliance
with the Relevant 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 Depositor and
signed by an authorized officer of the Servicer and shall address each of the
Relevant Servicing Criteria specified substantially on Exhibit S hereto (or
those Servicing Criteria otherwise mutually agreed to by the Depositor and
the
Servicer in response to evolving interpretations of Regulation AB;
(2) deliver
to the Trustee a report of a registered public accounting firm reasonably
acceptable to the Depositor and the Trustee that attests to, and reports on,
the
assessment of the 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;
(3) cause
each Sub-Servicer and each Subcontractor to deliver to the Trustee and the
Depositor an assessment of compliance and accountants’ attestation as and when
provided in paragraphs (i) and (ii) of this Section 3.21; and
(4) pursuant
to Section 4.05(a)(iv), deliver, and cause each Sub-Servicer and each
Subcontractor to deliver to the Trustee a certification in the form attached
hereto as Exhibit N-2.
Each
assessment of compliance provided by a Sub-Servicer pursuant to Section
3.21(iii) shall address each of the Relevant Servicing Criteria applicable
to
the Servicer in Exhibit S. An assessment of compliance provided by a
Subcontractor pursuant to Section 3.21(iii) need not address any elements of
the
Relevant Servicing Criteria other than those specified by the Servicer pursuant
to Section 3.02.
The
Servicer acknowledges that the Depositor may rely on the certification provided
by the Servicer pursuant clause (iv) above in signing the Certification and
filing such with the Commission. The Depositor will not request delivery of
a
certification under clause (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.
The
Trustee shall also provide an Assessment of Compliance and Attestation Report,
as and when provided above, which shall at a minimum address each of the
Servicing Criteria specified on Exhibit O hereto which are indicated as
applicable to each such party. Notwithstanding the foregoing, as to any trustee,
an Assessment of Compliance is not required to be delivered unless it is
required as part of a Form 10-K with respect to the Trust Fund.
Each
of
the Servicer and the Trustee shall indemnify and hold harmless the Depositor
and
their officers, directors and Affiliates from and against any actual losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal fees
and
related costs, judgments and other costs and expenses that such Person may
sustain based upon a breach of the obligations of such Indemnifying Party under
this Section 3.21.
| SECTION 3.22 |
Remedies
Regarding Statements as to Compliance, Assessments of Compliance
and
Attestation Reports.
|
(i) 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 3.20 or Section 3.21, including (except as provided below) any
failure by the Servicer to identify any Subcontractor “participating in the
servicing function” within the meaning of Item 1122 of Regulation AB, which
continues unremedied for ten (10) calendar days after the date on which such
information, report, certification or accountants’ letter was required to be
delivered shall constitute a Servicer Event of Termination, and shall entitle
the Trustee (at the direction of the Depositor), to terminate the rights and
obligations of the Servicer under this Agreement without payment
(notwithstanding anything in this Agreement to the contrary) of any compensation
to the Servicer; provided that to the extent that any provision of this
Agreement expressly provides for the survival of certain rights or obligations
following termination of the Servicer as servicer, such provision shall be
given
effect.
Neither
the Trustee nor the Depositor shall be entitled to terminate the rights and
obligations of the Servicer pursuant to this subparagraph (B)(i) 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 Depositor, the Trustee and the Trust
Fund
for all reasonable expenses incurred by the Depositor, the Trustee and the
Trust
Fund, 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
Trustee 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.
| SECTION 3.23 |
Access
to Certain Documentation.
|
The
Servicer shall provide to the Office of the Controller of the Currency, 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, access to the documentation 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 regarding the Mortgage Loans required by applicable laws
and
regulations will be provided to such Certificateholder, the Trustee and to
any
Person identified to the Servicer as a prospective transferee of a Certificate
subject to the execution of a confidentiality agreement in form and substance
satisfactory to the servicer, 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. Nothing in this Section 3.22 shall derogate
from
the obligation of any such party to observe any applicable law prohibiting
disclosure of information regarding the Mortgagors and the failure of any such
party to provide access as provided in this Section as a result of such
obligation shall not constitute a breach of this Section 3.22.
| SECTION 3.24 |
Title,
Management and Disposition of REO
Property.
|
(a) In
the
event that title to an REO Property is acquired in foreclosure or by deed in
lieu of foreclosure, the deed or certificate of sale shall be taken (pursuant
to
a limited power of attorney to be provided by the Trustee to the Servicer)
in
the name of the Trustee or a nominee thereof, on behalf of the
Certificateholders, or in the event the Trustee or a nominee thereof is not
authorized or permitted to hold title to real property in the state where the
REO Property is located, or would be adversely affected under the “doing
business” or tax laws of such state by so holding title, the deed or certificate
of sale shall be taken in the name of such Person or Persons as shall be
consistent with an Opinion of Counsel obtained by the Servicer from an attorney
duly licensed to practice law in the state where the REO Property is located.
Any Person or Persons holding such title other than the Trustee shall
acknowledge in writing that such title is being held as nominee for the benefit
of the Trustee. The Trustee’s name shall be placed on the title to such REO
Property solely as the Trustee hereunder and not in its individual capacity.
The
Servicer shall ensure that the title to such REO Property references this
Agreement and the Trustee’s capacity hereunder. The Servicer, on behalf of the
Trust Fund, shall either sell any REO Property before the close of the third
taxable year following the year the Trust Fund 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
above three-year grace period would otherwise expire, an extension of the above
three-year grace period, unless the Servicer shall have delivered to the Trustee
and the Depositor an Opinion of Counsel, addressed to the Trustee and the
Depositor, to the effect that the holding by the Trust Fund of such REO Property
subsequent to the close of the third taxable year after its acquisition will
not
result in the imposition on the Trust Fund 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 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 Collection 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 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 (which
account must be an Eligible 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 two Business Days after
the Servicer’s receipt thereof, and shall thereafter deposit in the REO Account,
in no event more than one Business Day after the deposit of such funds into
the
clearing account, all revenues received by it with respect to an REO Property
and shall withdraw therefrom funds necessary for the proper operation,
management and maintenance of such REO Property including, without
limitation:
(i) all
insurance premiums due and payable in respect of such REO Property;
(ii) all
real
estate taxes and assessments in respect of such REO Property that may result
in
the imposition of a lien thereon; and
(iii) all
costs
and expenses necessary to maintain such REO Property.
To
the
extent that amounts on deposit in the REO Account with respect to an REO
Property are insufficient for the purposes set forth in clauses (i) through
(iii) above with respect to such REO Property, the Servicer shall advance from
its own funds such amount as is necessary for such purposes if, but only if,
the
Servicer would make such advances if the Servicer owned the REO Property and
if
in the Servicer’s judgment, the payment of such amounts will be recoverable from
the rental or sale of the REO Property.
Notwithstanding
the foregoing, none of the Servicer or the Trustee shall:
(a) 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;
(b) authorize
any amount to be received or accrued under any New Lease other than amounts
that
will constitute Rents from Real Property;
(c) 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
(d) 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 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 at any
time that it is held by the Trust Fund, in which case the Servicer may take
such
actions as are specified in such Opinion of Counsel.
The
Servicer may contract with any Independent Contractor for the operation and
management of any REO Property; provided that:
(i) the
terms
and conditions of any such contract shall not be inconsistent
herewith;
(ii) any
such
contract shall require, or shall be administered to require, that the
Independent Contractor pay all costs and expenses incurred in connection with
the operation and management of such REO Property, including those listed above
and remit all related revenues (net of such costs and expenses) to the Servicer
as soon as practicable, but in no event later than thirty days following the
receipt thereof by such Independent Contractor;
(iii) none
of
the provisions of this Section 3.23(c) relating to any such contract or to
actions taken through any such Independent Contractor shall be deemed to relieve
the Servicer of any of its duties and obligations to the Trustee on behalf
of
the Certificateholders with respect to the operation and management of any
such
REO Property; and
(iv) the
Servicer shall be obligated with respect thereto to the same extent as if it
alone were performing all duties and obligations in connection with the
operation and management of such REO Property.
The
Servicer shall be entitled to enter into any agreement with any Independent
Contractor performing services for it related to its duties and obligations
hereunder for indemnification of the Servicer by such Independent Contractor,
and nothing in this Agreement shall be deemed to limit or modify such
indemnification. The Servicer shall be solely liable for all fees owed by it
to
any such Independent Contractor, irrespective of whether the Servicer’s
compensation pursuant to Section 3.18 is sufficient to pay such
fees.
(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. Any income from the related REO Property
received during any calendar months prior to a Final Recovery Determination,
net
of any withdrawals made pursuant to Section 3.23(c) or this Section 3.23(d),
shall be withdrawn by the Servicer from each REO Account maintained by it and
remitted to the Trustee for deposit into the Distribution Account in accordance
with Section 3.10(d)(ii) on the Servicer Remittance Date relating to a Final
Recovery Determination with respect to such Mortgage Loan, for distribution
on
the related Distribution Date in accordance with Section 4.01.
(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 general servicing activities for similar properties.
(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
remitted to the Trustee for deposit in the Distribution Account in accordance
with Section 3.10(d)(ii) on the Servicer Remittance Date in the month following
the receipt thereof for distribution on the related Distribution Date in
accordance with Section 4.01. Any REO Disposition shall be for cash only (unless
changes in the REMIC Provisions made subsequent to the Startup Day allow a
sale
for other consideration).
(g) The
Servicer shall file information returns with respect to the receipt of mortgage
interest received in a trade or business, reports of foreclosures and
abandonments of any Mortgaged Property and cancellation of indebtedness income
with respect to any Mortgaged Property as required by Sections 6050H, 6050J
and
6050P of the Code, respectively. Such reports shall be in form and substance
sufficient to meet the reporting requirements imposed by such Sections 6050H,
6050J and 6050P of the Code.
| SECTION 3.25 |
Obligations
of the Servicer in Respect of Prepayment Interest
Shortfalls.
|
The
Servicer shall deliver to the Trustee for deposit into the Distribution Account
on the Servicer Remittance Date from its own funds (or from a Sub-Servicer’s own
funds received by the Servicer in respect of Compensating Interest) an amount
equal to the lesser of (a) the amount, if any, by which the Prepayment Interest
Shortfall for the related Prepayment Period exceeds the Prepayment Interest
Excess for the related Prepayment Period, and (b) the amount of the Servicing
Fee payable to the Servicer for such Distribution Date.
| SECTION 3.26 |
Obligations
of the Servicer in Respect of Monthly Payments.
|
In
the
event that a shortfall in any collection on or liability with respect to any
Mortgage Loan results from or is attributable to adjustments to Mortgage Rates,
Monthly Payments or Stated Principal Balances that were made by the Servicer
in
a manner not consistent with the terms of the related Mortgage Note and this
Agreement, the Servicer, upon discovery or receipt of notice thereof,
immediately shall deliver to the Trustee for deposit in the Distribution Account
from its own funds the amount of any such shortfall and shall indemnify and
hold
harmless the Trust Fund, the Trustee, the Depositor and any successor servicer
in respect of any such liability. Such indemnities shall survive the termination
or discharge of this Agreement. If amounts paid by the Servicer with respect
to
any Mortgage Loan pursuant to this Section 3.25 are subsequently recovered
from
the related Mortgagor, the Servicer shall be permitted to reimburse itself
for
such amounts paid by it pursuant to this Section 3.25 from such
recoveries.
| SECTION 3.27 |
Net
WAC Rate Carryover Reserve Account.
|
No
later
than the Closing Date, the Trustee shall establish and maintain with itself
a
separate, segregated trust account titled, “Net WAC Rate Carryover Reserve
Account, Deutsche Bank National Trust Company, as Trustee, in trust for
registered Holders of Fremont Mortgage Loan Trust 2006-1, Asset-Backed
Certificates, Series 2006-1.” All amounts deposited in the Net WAC Rate
Carryover Reserve Account shall be distributed to the Holders of the the Fixed
Rate Certificates and the Floating Rate Certificates in the manner set forth
in
Section 4.01(d).
On
each
Distribution Date as to which there is a Net WAC Rate Carryover Amount payable
to the Fixed Rate Certificates and the Floating Rate Certificates, the Trustee
has been directed by the Class C Certificateholders to, and therefore will,
deposit into the Net WAC Rate Carryover Reserve Account the amounts described
in
Section 4.01(c)(v), rather than distributing such amounts to the Class C
Certificateholders. In addition, any payments received by the Trustee under
the
Cap Contract on each Distribution Date will be deposited into the Net WAC Rate
Carryover Reserve Account. On each such Distribution Date, the Trustee shall
hold all such amounts for the benefit of the Holders of the Fixed Rate
Certificates and the Floating Rate Certificates, and will distribute such
amounts to the Holders of the Fixed Rate Certificates and the Floating Rate
Certificates in the amounts and priorities set forth in Section
4.01(d).
On
each
Distribution Date, any amounts remaining in the Net WAC Rate Carryover Reserve
Account (representing
payments received by the Trustee under the Cap Contract) after
the
payment of any Net WAC Rate Carryover Amounts on the Fixed Rate Certificates
and
the Floating Rate Certificates for such Distribution Date, shall be payable
to
the Trustee as additional compensation. For so long as any Floating Rate
Certificates are beneficially owned by the Depositor or any of its Affiliates,
the Depositor shall refund or cause such Affiliate to refund any amounts paid
to
it under the Cap Contract to the Trustee who shall, pursuant to the terms of
the
Cap Contract, return such amount to the counterparty thereunder.
It
is the
intention of the parties hereto that, for federal and state income and state
and
local franchise tax purposes, the Net WAC Rate Carryover Reserve Account be
disregarded as an entity separate from the Holder of the Class C Certificates
unless and until the date when either (a) there is more than one Class C
Certificateholder or (b) any Class of Certificates in addition to the Class
C
Certificates is recharacterized as an equity interest in the Net WAC Rate
Carryover Reserve Account for federal income tax purposes, in which case it
is
the intention of the parties hereto that, for federal and state income and
state
and local franchise tax purposes, the Net WAC Rate Carryover Reserve Account
be
treated as a partnership. All amounts deposited into the Net WAC Rate Carryover
Reserve Account (other than amounts received under the Cap Contract) shall
be
treated as amounts distributed by REMIC 3 to the Holder of the Class C Interest
and by REMIC 4 to the Holder of the Class C Certificates. The Net WAC Rate
Carryover Reserve Account will be an “outside reserve fund” within the meaning
of Treasury Regulation Section 1.860G-2(h). Upon the termination of the Trust,
or the payment in full of the Fixed Rate Certificates and the Floating Rate
Certificates, all amounts remaining on deposit in the Net WAC Rate Carryover
Reserve Account will be released by the Trust and distributed to the Holders
of
the Class C Certificates or their designee. The Net WAC Rate Carryover Reserve
Account will be part of the Trust but not part of any REMIC and any payments
to
the Holders of the Fixed Rate Certificates and the Floating Rate Certificates
of
Net WAC Rate Carryover Amounts will not be payments with respect to a “regular
interest” in a REMIC within the meaning of Code Section
860(G)(a)(1).
By
accepting a Class C Certificate, each Class C Certificateholder hereby agrees
to
direct the Trustee, and the Trustee hereby is directed, to deposit into the
Net
WAC Rate Carryover Reserve Account the amounts described above on each
Distribution Date as to which there is any Net WAC Rate Carryover Amount rather
than distributing such amounts to the Class C Certificateholders. By accepting
a
Class C Certificate, each Class C Certificateholder further agrees that such
direction is given for good and valuable consideration, the receipt and
sufficiency of which is acknowledged by such acceptance.
Amounts
on deposit in the Net WAC Rate Carryover Reserve Account shall remain
uninvested.
For
federal tax return and information reporting, the right of the Holders of the
Fixed Rate Certificates and Floating Rate Certificates to receive payments
from
the Net WAC Rate Carryover Reserve Account in respect of any Net WAC Cap Carry
Forward Amounts may have more than a de
minimis
value.
The value of such amount, if any, may be obtained from the Trustee upon request,
provided that the Trustee has received such information from the
Underwriters.
| SECTION 3.28 |
Advance
Facility
|
(a) Either
(i) the Servicer or (ii) the Trustee, on behalf of the Trust Fund, with the
consent of and at the direction of the Servicer, is hereby authorized to enter
into a facility with any Person which provides that such Person (an “Advancing
Financing 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 Financing Person, the Trustee shall
execute a letter of acknowledgment, confirming its receipt of notice of the
existence of such Advance Facility. If the Trustee enters into such an Advance
Facility pursuant to this Section 3.26, the Servicer shall also be a party
to
such Advance Facility. To the extent that an Advancing Financing Person funds
any Advance or any Servicing Advance and provides the Trustee with notice
acknowledged by the Servicer that such Advancing Financing Person is entitled
to
reimbursement, such Advancing Financing Person shall be entitled to receive
reimbursement pursuant to this Agreement for such amount to the extent provided
in Section 3.26(b). Such notice from the Advancing Financing Person 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 Financing Person to request
reimbursement from the Trustee, rather than the Servicer, and include the
Servicer’s acknowledgment thereto 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 Financing Person
and shall be entitled to rely without independent investigation on the Advancing
Financing Person’s notice provided pursuant to this Section 3.26. An Advancing
Financing Person whose obligations hereunder are limited to the funding of
Advances and/or Servicing Advances shall not be required to meet the
qualifications of a Servicer or a Sub-Servicer pursuant to Section 3.02 hereof
and will not be deemed to be a Sub-Servicer under this Agreement.
(b) If
an
advancing facility is entered into, then the Servicer shall not be permitted
to
reimburse itself therefor under Section 3.11(a)(ii), Section 3.11(a)(iii) and
Section 3.11(a)(vi) prior to the remittance to the Trust Fund, but instead
the
Servicer shall include such amounts in the applicable remittance to the Trustee
made pursuant to Section 3.11(a). The Trustee is hereby authorized to pay to
the
Advancing Financing Person, reimbursements for Advances and Servicing Advances
from the Distribution 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 Financing 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.
ARTICLE
IV
FLOW
OF
FUNDS
| SECTION 4.01 |
Distributions.
|
(a) (I)
On
each Distribution Date, the Trustee shall, first, withdraw from the Distribution
Account an amount equal to the Credit Risk Manager Fee for such Distribution
Date and shall pay such amount to the Credit Risk Manager and, then, withdraw
that portion of Available Funds for such Distribution Date consisting of the
Group I Interest Remittance Amount for such Distribution Date, and make the
following disbursements and transfers in the order of priority described below,
in each case to the extent of the Group I Interest Remittance Amount remaining
for such Distribution Date:
(i) to
the
Holders of the Group I Certificates, the Monthly Interest Distributable Amount
and the Unpaid Interest Shortfall Amount, if any, for such Class;
and
(ii) concurrently,
to the Holders of the Group II Certificates, on a pro
rata basis
based on the entitlement of each such Class, an amount equal to the excess,
if
any, of (x) the amount required to be distributed pursuant to Section
4.01(a)(II)(i) below for such Distribution Date over (y) the amount actually
distributed pursuant to such clause from the Group II Interest Remittance
Amount.
(II) On
each
Distribution Date the Trustee shall withdraw from the Distribution Account
that
portion of Available Funds for such Distribution Date consisting of the Group
II
Interest Remittance Amount for such Distribution Date, and make the following
disbursements and transfers in the order of priority described below, in each
case to the extent of the Group II Interest Remittance Amount remaining for
such
Distribution Date.
(i) concurrently,
to the Holders of the Group II Certificates, on a pro
rata
basis
based on the entitlement of each such Class, the Monthly Interest Distributable
Amount and the Unpaid Interest Shortfall Amount, if any, for each such Class;
and
(ii) to
the
Holders of the Group I Certificates, an amount equal to the excess, if any,
of
(x) the amount required to be distributed pursuant to Section 4.01(a)(I)(i)
above for such Distribution Date over (y) the amount actually distributed
pursuant to such clause from the Group I Interest Remittance
Amount.
(III) On
each
Distribution Date, distributions to the extent of the sum of the Group I
Interest Remittance Amount and the Group II Interest Remittance Amount remaining
undistributed for such Distribution Date shall be distributed sequentially,
to
the Holders of 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, the Class B-1 Certificates, the Class B-2
Certificates and the Class B-3 Certificates, in that order, in an amount equal
to the Monthly Interest Distributable Amount for each such Class.
(b) (I)On
each
Distribution Date (a) prior to the Stepdown Date or (b) on which
a
Trigger Event is in effect, distributions in respect of principal to the extent
of the Group I Principal Distribution Amount shall be made in the following
amounts and order of priority:
(i) to
the
Holders of the Group I Certificates, until the Certificate Principal Balance
thereof has been reduced to zero; and
(ii) after
taking into account the amount distributed to the Holders of the Group II
Certificates pursuant to Section 4.01(b)(II)(i) below on such Distribution
Date,
to the Holders of the Group II Certificates (allocated among the Group II
Certificates in the priority described below), until the Certificate Principal
Balances thereof have been reduced to zero.
(II) On
each
Distribution Date (a) prior to the Stepdown Date or (b) on which a Trigger
Event
is in effect, distributions in respect of principal to the extent of the Group
II Principal Distribution Amount shall be made in the following amounts and
order of priority:
(i) to
the
Holders of the Group II Certificates
(allocated among Group II Certificates in the priority described
below),
until
the Certificate Principal Balances thereof have been reduced to zero;
and
(ii) after
taking into account the amount distributed to the Holders of the Group I
Certificates pursuant to Section 4.01(b)(I)(i) above on such Distribution Date,
to the Holders of the Group I Certificates, until the Certificate Principal
Balance thereof has been reduced to zero.
(III) On
each
Distribution Date (a) prior to the Stepdown Date or (b) on which a Trigger
Event
is in effect, distributions in respect of principal to the extent of the sum
of
the Group I Principal Distribution Amount and the Group II Principal
Distribution Amount remaining undistributed for such Distribution Date shall
be
distributed sequentially, to the Holders of 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, the Class
B-1 Certificates, the Class B-2 Certificates and the Class B-3 Certificates
in
that order, in each case, until the Certificate Principal Balance thereof has
been reduced to zero.
(IV) On
each
Distribution Date (a) on or after the Stepdown Date and (b) on which a Trigger
Event is not in effect, distributions in respect of principal to the extent
of
the Group I Principal Distribution Amount shall be made in the following amounts
and order of priority:
(i) to
the
Holders of the Group I Certificates, the Group I Senior Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
and
(ii) to
the
Holders of the Group II Certificates (allocated among Group II Certificates
in
the priority described below), an amount equal to the excess, if any, of (x)
the
amount required to be distributed pursuant to Section 4.01(c)(V)(i) below for
such Distribution Date over (y) the amount actually distributed pursuant to
Section 4.01(c)(V)(i) below from the Group II Principal Distribution Amount
on
such Distribution Date.
(V) On
each
Distribution Date (a) on or after the Stepdown Date and (b) on which a Trigger
Event is not in effect, distributions in respect of principal to the extent
of
the Group II Principal Distribution Amount shall be made in the following
amounts and order of priority:
(i) to
the
Holders of the Group II Certificates (allocated among Group II Certificates
in
the priority described below), the Group II Senior Principal Distribution Amount
until the Certificate Principal Balances thereof have been reduced to zero;
and
(ii) to
the
Holders of the Group I Certificates, an amount equal to the excess, if any,
of
(x) the amount required to be distributed pursuant to Section 4.01(c)(IV)(i)
above for such Distribution Date over (y) the amount actually distributed
pursuant to Section 4.01(c)(IV)(i) above from the Group I Principal Distribution
Amount on such Distribution Date.
(VI) On
each
Distribution Date (a) on or after the Stepdown Date and (b) on which a Trigger
Event is not in effect, distributions in respect of principal to the extent
of
the sum of the Group I Principal Distribution Amount and the Group II Principal
Distribution Amount remaining undistributed for such Distribution Date shall
be
made in the following amounts and order of priority:
(i) sequentially,
to the Holders of the Class M-1 Certificates and Class M-2 Certificates, in
that
order, the Class M-1/M-2 Principal Distribution Amount until the Certificate
Principal Balances thereof have been reduced to zero;
(ii) to
the
Holders of the Class M-3 Certificates, the Class M-3 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
(iii) to
the
Holders of the Class M-4 Certificates, the Class M-4 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
(iv) to
the
Holders of the Class M-5 Certificates, the Class M-5 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
(v) to
the
Holders of the Class M-6 Certificates, the Class M-6 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
(vi) to
the
Holders of the Class M-7 Certificates, the Class M-7 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
(vii) to
the
Holders of the Class M-8 Certificates, the Class M-8 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
(viii) to
the
Holders of the Class M-9 Certificates, the Class M-9 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
(ix) to
the
Holders of the Class B-1 Certificates, the Class B-1 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
(x) to
the
Holders of the Class B-2 Certificates, the Class B-2 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero;
and
(xi) to
the
Holders of the Class B-3 Certificates, the Class B-3 Principal Distribution
Amount until the Certificate Principal Balance thereof has been reduced to
zero.
With
respect to the Group II Certificates, all principal distributions will be
distributed sequentially, first, to the Holders of the Class II-A-1
Certificates, until the Certificate Principal Balance of the Class II-A-1
Certificates has been reduced to zero; second, to the Holders of the Class
II-A-2 Certificates, until the Certificate Principal Balance of the Class II-A-2
Certificates has been reduced to zero; third,
to
the Holders of the Class II-A-3 Certificates, until the Certificate Principal
Balance of the Class II-A-3 Certificates has been reduced to zero
and
fourth, to the Holders of the Class II-A-4 Certificates, until the Certificate
Principal Balance of the Class II-A-4 Certificates has been reduced to zero;
provided, however, on any Distribution Date on which the aggregate Certificate
Principal Balance of the Mezzanine Certificates, the Class B Certificates and
the Class C Certificates have been reduced to zero, all principal distributions
will be distributed concurrently, to the holders of the Group II Certificates,
on a pro
rata
basis
based on the Certificate Principal Balance of each such class.
(c) On
each
Distribution Date, the Net Monthly Excess Cashflow shall be distributed as
follows:
(i) to
the
Holders of the Class or Classes of Certificates then entitled to receive
distributions in respect of principal, in an amount equal to any Extra Principal
Distribution Amount, without taking into account amounts, if any, received
under
the Interest Rate Swap Agreement, distributable to such Holders as part of
the
Group I Principal Distribution Amount and/or the Group II Principal Distribution
Amount as described under Section 4.01(b) above;
(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 B-1 Certificates, Class B-2 Certificates and Class B-3
Certificates in that order, in each case, first, up to the Unpaid Interest
Shortfall Amount for each such Class and second, up to the Allocated Realized
Loss Amount, for each such Class;
(iii) to
the
Net WAC Rate Carryover Reserve Account, the aggregate of any Net WAC Rate
Carryover Amounts for the Fixed Rate Certificates and the Floating Rate
Certificates which exceed the amounts received under the Cap Contract, without
taking into account amounts, if any, received under the Swap
Agreement;
(iv) to
the
Swap Provider, any Swap Termination Payments resulting from a Swap Provider
Trigger Event;
(v) to
the
Holders of the Class C Certificates, (a) the Monthly Interest Distributable
Amount and any Overcollateralization Release Amount for such Distribution Date
and (b) on any Distribution Date on which the Certificate Principal Balances
of
the Class A Certificates, the Class B Certificates and Mezzanine Certificates
have been reduced to zero, any remaining amounts in reduction of the Certificate
Principal Balance of the Class C Certificates, until the Certificate Principal
Balance thereof has been reduced to zero (and for federal and state income
tax
purposes, such total amounts shall be treated as amounts distributed by REMIC
3
to the Holder of the Class C Interest and by REMIC 4 to the Holder of the Class
C Certificates);
(vi) if
such
Distribution Date follows the Prepayment Period during which occurs the latest
date on which a Prepayment Charge may be required to be paid in respect of
any
Mortgage Loans, to the Holders of the Class P Certificates, in reduction of
the
Certificate Principal Balance thereof, until the Certificate Principal Balance
thereof is reduced to zero (and for federal and state income tax purposes,
such
total amounts shall be treated as amounts distributed by REMIC 3 to the Holder
of the Class P Interest and by REMIC 5 to the Holder of the Class P
Certificates); and
(vii) any
remaining amounts to the Holders of the Residual Certificates (in respect of
the
Class R-3 Interest).
(d) On
each
Distribution Date, after making the distributions of the Available Funds as
set
forth above, the Trustee shall withdraw from the Net WAC Rate Carryover Reserve
Account, to the extent of amounts remaining on deposit therein, the aggregate
of
any Net WAC Rate Carryover Amounts for such Distribution Date and distribute
such amount in the following order of priority:
(i) concurrently,
to each Class of Class A Certificates, the related Cap Amount, from payments
made under the Cap Contract, in each case up to a maximum amount equal to the
related Net WAC Rate Carryover Amount for such Distribution Date;
(ii) sequentially,
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, the Class B-1 Certificates and the Class B-2
Certificates, in that order, the related Cap Amount, from payments made under
the Cap Contract, in each case up to a maximum amount equal to the related
Net
WAC Rate Carryover Amount for such Distribution Date;
(iii) concurrently,
to each Class of Class A Certificates, the related Net WAC Rate Carryover Amount
remaining undistributed pursuant to clause (i) above, on a pro
rata
basis
based on such respective remaining Net WAC Rate Carryover Amounts;
and
(iv) sequentially,
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, the Class B-1 Certificates, the Class B-2 Certificates
and the Class B-3 Certificates, in that order, the related Net WAC Rate
Carryover Amount remaining undistributed pursuant to clause (ii)
above.
(e) On
each
Distribution Date, after making the distributions of the Available Funds, Net
Monthly Excess Cashflow and amounts on deposit in the Net WAC Rate Carryover
Reserve Account as set forth above, the Trustee shall distribute the amount
on
deposit in the Swap Account as follows:
(i) to
the
Swap Provider, any Net Swap Payment owed to the Swap Provider pursuant to the
Interest Rate Swap Agreement for such Distribution Date;
(ii) to
the
Swap Provider, any Swap Termination Payment owed to the Swap Provider not due
to
a Swap Provider Trigger Event pursuant to the Interest Rate Swap
Agreement;
(iii) concurrently,
to each Class of Class A Certificates, the related Monthly Interest
Distributable Amount and Unpaid Interest Shortfall Amount remaining
undistributed after the distributions of the Group I Interest Remittance Amount
and the Group II Interest Remittance Amount, on a pro
rata
basis
based on such respective remaining Monthly Interest Distributable Amount and
Unpaid Interest Shortfall Amount;
(iv) sequentially,
to the Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class M-6, Class
M-7, Class M-8, Class M-9, Class B-1, Class B-2 and Class B-3 Certificates,
in
that order, the related Monthly Interest Distributable Amount and Unpaid
Interest Shortfall Amount, to the extent remaining undistributed after the
distributions of the Group I Interest Remittance Amount, the Group II Interest
Remittance Amount and the Net Monthly Excess Cashflow;
(v) to
the
Holders of the Class or Classes of Certificates then entitled to receive
distributions in respect of principal, in an amount equal to any Extra Principal
Distribution Amount, without taking into account amounts, if any, received
under
the Interest Rate Swap Agreement, distributable to such Holders as part of
the
Group I Principal Distribution Amount and/or the Group II Principal Distribution
Amount, after taking into account distributions made pursuant to Section
4.01(a)(4)(i);
(vi) sequentially
to the Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class M-6, Class
M-7, Class M-8, Class M-9, Class B-1, Class B-2 and Class B-3 Certificates,
in
that order, in each case up to the related Allocated Realized Loss Amount
related to such Certificates for such Distribution Date remaining undistributed
after distribution of the Net Monthly Excess Cashflow;
(vii) concurrently,
to each Class of Class A Certificates, the related Net WAC Rate Carryover
Amount, to the extent remaining undistributed after distributions are made
from
the Net WAC Rate Carryover Reserve Account, on a pro
rata
basis
based on such respective Net WAC Rate Carryover Amounts remaining;
(viii) sequentially,
to the Class X-0, Xxxxx X-0, Class M-3, Class M-4, Class M-5, Class M-6, Class
M-7, Class M-8, Class M-9, Class B-1, Class B-2 and Class B-3 Certificates,
in
that order, the related Net WAC Rate Carryover Amount, to the extent remaining
undistributed after distributions are made from the Net WAC Rate Carryover
Reserve Account; and
(ix) any
remaining amounts to the Holders of the Class C Certificates.
(f) On
each
Distribution Date, all amounts representing Prepayment Charges in respect of
the
Mortgage Loans received during the related Prepayment Period and any Servicer
Prepayment Charge Payment Amounts paid by the Servicer during the related
Prepayment Period will be withdrawn from the Distribution Account and
distributed by the Trustee to the Holders of the Class P Certificates and shall
not be available for distribution to the Holders of any other Class of
Certificates. The payment of the foregoing amounts to the Holders of the Class
P
Certificates shall not reduce the Certificate Principal Balances
thereof.
(g) The
Trustee shall make distributions in respect of a Distribution Date to each
Certificateholder of record on the related Record Date (other than as provided
in Section 10.01 respecting the final distribution), in the case of
Certificateholders of the Regular Certificates, by check or money order mailed
to such Certificateholder at the address appearing in the Certificate Register,
or by wire transfer. Distributions among Certificateholders shall be made in
proportion to the Percentage Interests evidenced by the Certificates held by
such Certificateholders.
(h) Each
distribution with respect to a Book-Entry Certificate shall be paid to the
Depository, which shall credit 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. All such credits and disbursements
with respect to a Book-Entry Certificate are to be made by the Depository and
the Depository Participants in accordance with the provisions of the
Certificates. None of the Trustee, the Depositor or the Servicer shall have
any
responsibility therefor except as otherwise provided by applicable
law.
On
each
Distribution Date, following the foregoing distributions, an amount equal to
the
amount of Subsequent Recoveries deposited into the Collection Account pursuant
to Section 3.10 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 4.08. 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 4.08. 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.
(i) It
is the
intention of all of the parties hereto that the Class C Certificates receive
all
principal and interest received by the Trust on the Mortgage Loans that is
not
otherwise distributable to any other Class of Regular Certificates or REMIC
Regular Interests and that the Residual Certificates are to receive no principal
and interest. If the Trustee determines that the Residual Certificates are
entitled to any distributions, the Trustee, prior to any such distribution
to
any Residual Certificate, shall notify the Depositor of such impending
distribution but shall make such distribution in accordance with the terms
of
this Agreement until this Agreement is amended as specified in the following
sentence. Upon such notification, the Depositor will request an amendment to
the
Pooling and Servicing Agreement to revise such mistake in the distribution
provisions. The Residual Certificate Holders, by acceptance of their
Certificates, and the Servicer(s), hereby agree to any such amendment and no
further consent shall be necessary, notwithstanding anything to the contrary
in
Section 11.01 of this Pooling and Servicing Agreement; provided, however, that
such amendment shall otherwise comply with Section 11.01 hereof.
| SECTION 4.02 |
[Reserved].
|
| SECTION 4.03 |
Statements.
|
(a) On
each
Distribution Date, based, as applicable, on information provided to it by the
Servicer, the Trustee shall prepare and make available to each Holder of the
Regular Certificates, the NIMS Insurer, the Servicer and the Rating Agencies,
a
statement as to the distributions made on such Distribution Date:
(i) the
amount of the distribution made on such Distribution Date to the Holders of
each
Class of Regular Certificates, separately identified, allocable to principal
and
the amount of the distribution made to the Holders of the Class P Certificates
allocable to Prepayment Charges and Servicer Prepayment Charge Payment
Amounts;
(ii) the
amount of the distribution made on such Distribution Date to the Holders of
each
Class of Regular Certificates (other than the Class P Certificates) allocable
to
interest, separately identified;
(iii) the
Net
Monthly Excess Cashflow, the Overcollateralized Amount, the
Overcollateralization Release Amount, the Overcollateralization Deficiency
Amount and the Overcollateralization Target Amount, the Class M-1 Credit
Enhancement Percentage and the Senior Credit Enhancement Percentage as of such
Distribution Date and the Excess Overcollateralized Amount for the Mortgage
Pool
for such Distribution Date;
(iv) the
fees
and expenses of the Trust Fund accrued and paid on such Distribution Date and
to
whom such fees and expenses were paid;
(v) the
aggregate amount of Advances for the related Due Period (including the general
purpose of such Advances);
(vi) the
aggregate Principal Balance of the Mortgage Loans and any REO Properties as
of
the end of the relted Due Period;
(vii) the
number, aggregate Stated Principal Balance, weighted average remaining term
to
maturity and weighted average Mortgage Rate of the Mortgage Loans as of the
related Determination Date;
(viii) the
number and aggregate unpaid Stated Principal Balance of Mortgage Loans that
were
(A) Delinquent (exclusive of Mortgage Loans in bankruptcy or foreclosure and
REO
Properties) (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, (B)
as
to which foreclosure proceedings have been commenced and Delinquent (1) 30
to 59
days, (2) 60 to 89 days and (3) 90 or more days, (C) in bankruptcy and
Delinquent (1) 30 to 59 days, (2) 60 to 89 days and (3) 90 or more days, in
each
case as of the Close of Business on the last day of the calendar month preceding
such Distribution Date and (D) REO Properties, as well as the aggregate
principal balance of Mortgage Loans that were liquidated and the net proceeds
resulting therefrom;
(ix) the
total
number and cumulative Stated Principal Balance of all REO Properties as of
the
Close of Business of the last day of the calendar month preceding the related
Distribution Date;
(x) the
aggregate amount of Principal Prepayments made during the related Prepayment
Period, separately indicating Principal Prepayments in full and Principal
Prepayments in part;
(xi) the
Delinquency Percentage;
(xii) the
aggregate amount of Realized Losses incurred during the related Prepayment
Period and the cumulative amount of Realized Losses and the aggregate amount
of
Subsequent Recoveries received during the related Prepayment Period and the
cumulative amount of Subsequent Recoveries received since the Closing
Date;
(xiii) the
aggregate amount of extraordinary Trust Fund expenses withdrawn from the
Collection Account or the Distribution Account for such Distribution
Date;
(xiv) the
Certificate Principal Balance of each Class of Class A Certificates, Mezzanine
Certificates and the Class C Certificates, before and after giving effect to
the
distributions, and allocations of Realized Losses, made on such Distribution
Date;
(xv) the
Monthly Interest Distributable Amount in respect of each Class of Class A
Certificates, Mezzanine Certificates, Class B Certificates and the Class C
Certificates for such Distribution Date and the Unpaid Interest Shortfall
Amount, if any, with respect to each Class of Class A Certificates, Mezzanine
Certificates, Class B Certificates and the Class C Certificates for such
Distribution Date;
(xvi) the
aggregate amount of any Prepayment Interest Shortfalls for such Distribution
Date, to the extent not covered by payments by the Servicer pursuant to Section
3.24;
(xvii) the
Net
WAC Rate Carryover Amount for each Class of Class A Certificates, Class B
Certificates and Mezzanine Certificates, if any, for such Distribution Date
and
the amount remaining unpaid after reimbursements therefor on such Distribution
Date;
(xviii) whether
the Stepdown Date or a Trigger Event has occurred and the Realized Loss
Percentage for such Distribution Date;
(xix) the
total
cashflows received and the general sources thereof;
(xx) the
respective Pass-Through Rates applicable to each Class of Class A Certificates,
Class B Certificates Mezzanine Certificates and the Class C Certificates for
such Distribution Date and the Pass-Through Rate applicable to each Class of
Class A Certificates, Class B Certificates and Mezzanine Certificates for the
immediately succeeding Distribution Date;
(xxi) payments,
if any, made under the Cap Contract and the amount distributed to each Class
of
Certificates from payments made under the Cap Contract;
(xxii) the
amount of any Net Swap Payments or Swap Termination Payments; and
(xxiii) the
applicable Record Dates, Accrual Periods and Determination Dates for calculating
distributions for such Distribution Date.
The
Trustee will make such statement (and, at its option, any additional files
containing the same information in an alternative format) available each month
to Certificateholders, the NIMS Insurer, the Credit Risk Manager and the Rating
Agencies via the Trustee’s internet website. The Trustee’s internet website
shall initially be located at “xxxxx://xxx.xxx.xx.xxx/xxxx”. Assistance in using
the website can be obtained by calling the Trustee’s customer service desk at
(000) 000-0000. Parties that are unable to use the above distribution option
are
entitled to have a paper copy mailed to them via first class mail by calling
the
customer service 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. As a condition to access to the Trustee’s internet
website, the Trustee may require registration and the acceptance of a
disclaimer. The Trustee will not be liable for the dissemination of information
in accordance with this Agreement. The Trustee shall also be entitled to rely
on
but shall not be responsible for the content or accuracy of any information
provided by third parties for purposes of preparing the Distribution Date
statement and may affix thereto any disclaimer it deems appropriate in its
reasonable discretion (without suggesting liability on the part of any other
party thereto).
In
the
case of information furnished pursuant to subclauses (i) and (ii) above, the
amounts shall be expressed in a separate section of the report as a dollar
amount for each Class for each $1,000 original dollar amount as of the Cut-off
Date.
(b) Within
a
reasonable period of time after the end of each calendar year, the Trustee
shall, upon written request, furnish to the NIMS Insurer and each Person who
at
any time during the calendar year was a Certificateholder of a Regular
Certificate, if requested in writing by such Person, such information as is
reasonably necessary to provide to such Person a statement containing the
information set forth in subclauses (i) and (ii) 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
prepared and furnished by the Trustee to Certificateholders pursuant to any
requirements of the Code as are in force from time to time.
(c) On
each
Distribution Date, the Trustee shall make available to the NIMS Insurer and
the
Residual Certificateholders a copy of the reports forwarded to the Regular
Certificateholders in respect of such Distribution Date with such other
information as the Trustee deems necessary or appropriate.
(d) Within
a
reasonable period of time after the end of each calendar year, the Trustee
shall
deliver to the NIMS Insurer, upon request, and each Person who at any time
during the calendar year was a Residual Certificateholder, if requested in
writing by such Person, such information as is reasonably necessary to provide
to such Person a statement containing the information provided pursuant to
the
previous paragraph aggregated for such calendar year or applicable portion
thereof during which such Person was a Residual Certificateholder. Such
obligation of the Trustee shall be deemed to have been satisfied to the extent
that substantially comparable information shall be prepared and furnished to
Certificateholders by the Trustee pursuant to any requirements of the Code
as
from time to time in force.
| SECTION 4.04 |
Remittance
Reports; Advances.
|
(a) On
the
third Business Day following each Determination Date, the Servicer shall deliver
to the Trustee and the Trustee shall make available to the NIMS Insurer, by
telecopy or electronic mail (or by such other means as the Servicer and the
Trustee may agree from time to time) a Remittance Report with respect to the
related Distribution Date, which Remittance Reports the Trustee shall use in
preparing the statement pursuant to Section 4.03. The Servicer shall deliver
or
cause to be delivered to the Trustee in addition to the information provided
on
the Remittance Report, such other information reasonably available to it with
respect to the Mortgage Loans as the Trustee may reasonably require to perform
the calculations necessary to (i) make the distributions contemplated by Section
4.01, (ii) to prepare the statements to Certificateholders contemplated by
Section 4.03 and (iii) to prepare the Form 10-D contemplated by Section 4.07.
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 4.04(d), the sum of (i) the aggregate amount of
Monthly Payments (net of the related Servicing Fee), due during the related
Due
Period in respect of the Mortgage Loans, which Monthly Payments were delinquent
on a contractual basis 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 Due Period and as to which REO Property an REO
Disposition did not occur during the related Due 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 Distribution Account pursuant to Section 3.23 for
distribution on such Distribution Date. For purposes of the preceding sentence,
the Monthly Payment on each Balloon Mortgage Loan with a delinquent Balloon
Payment is equal to the assumed monthly payment that would have been due on
the
related Due Date based on the original principal amortization schedule for
such
Balloon Mortgage Loan.
On
or
before the Servicer Remittance Date, the Servicer shall remit in immediately
available funds to the Trustee for deposit in the Distribution 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 Collection 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 Collection Account that amounts held for
future distribution have been, as permitted by this Section 4.04, 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 used by the Servicer to make an Advance
as
permitted in the preceding sentence or withdrawn by the Servicer as permitted
in
Section 3.11(a)(ii) in reimbursement for Advances previously made shall be
appropriately reflected in the Servicer’s records and replaced by the Servicer
by deposit in the Collection Account on or before any future Servicer Remittance
Date to the extent that the Available Funds 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 NIMS Insurer and the Servicer
by telecopy by the Close of Business on any Servicer Remittance Date in the
event that the amount remitted by the Servicer to the Trustee on such date
is
less than the Advances required to be made by the Servicer for the related
Distribution Date, as set forth in the related Remittance Report.
(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, shall continue until the Mortgage Loan is paid
in
full or until all Liquidation Proceeds thereon have been recovered, or a Final
Recovery Determination has been made thereon.
(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. The determination
by the Servicer that it has made a Nonrecoverable Advance or that any proposed
Advance or Servicing Advance, if made, would constitute a Nonrecoverable
Advance, shall be evidenced by an Officers’ Certificate of the Servicer
delivered to the NIMS Insurer, the Depositor and the Trustee.
| SECTION 4.05 |
Swap
Account.
|
(a) On
the
Closing Date, there is hereby established a separate trust (the “Supplemental
Interest Trust”), into which the Depositor shall deposit the Interest Rate Swap
Agreement. The Supplemental Interest Trust shall be maintained by the
Supplemental Interest Trust Trustee, who initially, shall be the Trustee. No
later than the Closing Date, the Supplemental Interest Trust Trustee shall
establish and maintain a separate, segregated non-interest bearing trust account
to be held in the Supplemental Interest Trust, titled, “Swap Account, Deutsche
Bank National Trust Company, as Supplemental Interest Trust Trustee, in trust
for the registered Certificateholders of Fremont Home Loan Trust 2006-1,
Asset-Backed Certificates, Series 2006-1.” Such account shall be an Eligible
Account and funds on deposit therein shall be held separate and apart from,
and
shall not be commingled with, any other moneys, including, without limitation,
other moneys of the Trustee held pursuant to this Agreement. Amounts therein
shall be held uninvested.
(b) On
each
Distribution Date, prior to any distribution to any Certificate, the
Supplemental Interest Trust Trustee shall deposit into the Swap Account: (i)
the
amount of any Net Swap Payment or Swap Termination Payment (other than any
Swap
Termination Payment resulting from a Swap Provider Trigger Event) owed to the
Swap Provider (after taking into account any upfront payment received from
the
counterparty to a replacement interest rate swap agreement) from funds collected
and received with respect to the Mortgage Loans prior to the determination
of
Available Funds and (ii) amounts received by the Supplemental Interest Trust
Trustee from the Swap Provider, for distribution in accordance with Section
4.01(e) hereof. For federal income tax purposes, any amounts paid to the Swap
Provider on each Distribution Date shall first be deemed paid to the Swap
Provider in respect of REMIC 6 Regular Interest SWAP IO to the extent of the
amount distributable on REMIC 6 Regular Interest SWAP IO on such Distribution
Date, and any remaining amount shall be deemed paid to the Swap Provider in
respect of a Class IO Distribution Amount (as defined below).
(c) It
is the
intention of the parties hereto that, for federal and state income and state
and
local franchise tax purposes, the Supplemental Interest Trust be disregarded
as
an entity separate from the Holder of the Class C Certificates unless and until
the date when either (a) there is more than one Class C Certificateholder or
(b)
any Class of Certificates in addition to the Class C Certificates is
recharacterized as an equity interest in the Supplemental Interest Trust for
federal income tax purposes, in which case it is the intention of the parties
hereto that, for federal and state income and state and local franchise tax
purposes, the Supplemental Interest Trust be treated as a partnership. The
Supplemental Interest Trust will be an “outside reserve fund” within the meaning
of Treasury Regulation Section 1.860G-2(h)..
(d) To
the
extent that the Supplemental Interest Trust is determined to be a separate
legal
entity from the Supplemental Interest Trust Trustee, any obligation of the
Supplemental Interest Trust Trustee under the Interest Rate Swap Agreement
shall
be deemed to be an obligation of the Supplemental Interest Trust.
(e) The
Trustee shall treat the Holders of Certificates (other than the Class P, Class
C, Class R and Class R-X Certificates) as having entered into a notional
principal contract with respect to the Holders of the Class C Certificates.
Pursuant to each such notional principal contract, all Holders of Certificates
(other than the Class P, Class C, Class R and Class R-X Certificates) shall
be
treated as having agreed to pay, on each Distribution Date, to the Holder of
the
Class C Certificates an aggregate amount equal to the excess, if any, of (i)
the
amount payable on such Distribution Date on the REMIC 3 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”). A Class IO Distribution Amount payable from interest
collections shall be allocated pro
rata
among
such Certificates based on the excess of (a) the amount of interest otherwise
payable to such Certificates over (ii) the amount of interest payable to such
Certificates at a per annum rate equal to the Net WAC Rate, and a Class IO
Distribution Amount payable from principal collections shall be allocated to
the
most subordinate Class of Certificates with an outstanding principal balance
to
the extent of such balance. In addition, pursuant to such notional principal
contract, the Holder of the Class C Certificates shall be treated as having
agreed to pay Net WAC Rate Carryover Amounts to the Holders of the Certificates
(other than the Class CE, Class P and Class R Certificates) in accordance with
the terms of this Agreement. Any payments to 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, Class P, Class R and Class R-X 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 their interests in REMIC 3 and
as
having been paid by such Holders to the Supplemental Interest Trust Trustee
pursuant to the notional principal contract. Thus, each Certificate (other
than
the Class P, Class R and Class R-X Certificates) shall be treated as
representing not only ownership of Regular Interests in REMIC 3, but also
ownership of an interest in, and obligations with respect to, a notional
principal contract.
(f) For
federal tax return and information reporting, the right of the Holders of the
Fixed Rate Certificates and Floating Rate Certificates to receive payments
from
the Supplemental Interest Trust may have more than a de minimis value. The
value
of such amount, if any, may be obtained from the Trustee upon request, provided
that the Trustee has received such information from the
Underwriters.
| SECTION 4.06 |
Tax
Treatment of Swap Payments and Swap Termination
Payments.
|
For
federal income tax purposes, each holder of a Class A and Mezzanine Certificate
is deemed to own an undivided beneficial ownership interest in a REMIC regular
interest and the right to receive payments from either the Net WAC Rate
Carryover Reserve Account or the Swap Account in respect of the Net WAC Rate
Carryover Amount or the obligation to make payments to the Swap Account. 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 3 (regardless
of
any Swap Termination Payment or obligation under the Interest Rate Swap
Agreement) and subsequently paying their portion of any Swap Termination Payment
in respect of each such Class’ obligation under the Interest Rate Swap
Agreement. In the event that any such Class is resecuritized in a REMIC, the
obligation under the Interest Rate Swap Agreement to pay any such Swap
Termination Payment (or any shortfall in Swap Provider Fee), 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.
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 Rate computed for this purpose by limiting the Base Calculation Amount
of the Interest Rate Swap Agreement to the aggregate Stated Principal Balance
of
the Mortgage Loans and (ii) any Swap Termination Payment will be treated as
being payable solely from Net Monthly Excess Cashflow. 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 such Certificate
| SECTION 4.07 |
Commission
Reporting.
|
(a) The
Trustee and the Servicer shall reasonably cooperate with the Depositor in
connection with the Trust’s satisfying the reporting requirements under the
Exchange Act.
(b) (i)
Within 12 days after each Distribution Date, the Trustee shall, in accordance
with industry standards, file with the Commission via the Electronic Data
Gathering and Retrieval System (“XXXXX”), a Distribution Report on Form 10-D,
signed by the Depositor, with a copy of the monthly statement to be furnished
by
the Trustee to the Certificateholders for such Distribution Date. Any disclosure
in addition to the monthly statement required to be included on the Form 10-D
(“Additional Form 10-D Disclosure”) shall be determined and prepared by the
entity that is indicated in Exhibit T as the responsible party for providing
that information, if other than the Trustee, and the Trustee will have no duty
or liability to verify the accuracy or sufficiency of any such Additional Form
10-D Disclosure and the Trustee shall have no liability with respect to any
failure to properly prepare or file such Form 10-D resulting from or relating
to
the Trustee’s inability or failure to obtain any information in a timely manner
from the party responsible for delivery of such Additional Form 10-D
Disclosure.
Within
3
calendar days after the related Distribution Date, each entity that is indicated
in Exhibit T as the responsible party for providing Additional Form 10-D
Disclosure shall be required to provide to the Trustee and the Depositor, to
the
extent known, clearly identifying which item of Form 10-D the information
relates to, any Additional Form 10-D Disclosure, if applicable. Any information
to be filed on Form 10-D shall be delivered to the Trustee in XXXXX compatible
format via electronic mail to XXXXX.xxxxxxxxxxxxx@xx.xxx.
The
Trustee shall compile the information provided to it, prepare the Form 10-D
and
forward the Form 10-D to the Depositor for verification. The Depositor will
approve, as to form and substance, or disapprove, as the case may be, the Form
10-D. No later than three Business Days prior to the 10th
calendar
day after the related Distribution Date, an officer of the Depositor shall
sign
the Form 10-D and return via electronic mail to XXXXX.xxxxxxxxxxxxx@xx.xxx
or fax
copy of such signed Form 10-D (with an original executed hard copy to follow
by
overnight mail) to the Trustee. The
Trustee shall have no liability with respect to any failure to properly file
any
Form 10-D resulting from or relating to the Depositor’s failure to timely comply
with the provisions of this section.
(ii) Within
four (4) Business Days after the occurrence of an event requiring disclosure
on
Form 8-K (each such event, a “Reportable Event”), the Depositor shall prepare
and file any Form 8-K, as required by the Exchange Act, in addition to the
initial Form 8-K in connection with the issuance of the Certificates. Any
disclosure or information related to a Reportable Event or that is otherwise
required to be included on Form 8-K (“Form 8-K Disclosure Information”) shall be
determined and prepared by the entity that is indicated in Exhibit T as the
responsible party for providing that information.
For
so
long as the Trust is subject to the Exchange Act reporting requirements, no
later than the end of business on the second Business Day after the occurrence
of a Reportable Event, the entity that is indicated in Exhibit T as the
responsible party for providing Form 8-K Disclosure Information shall be
required to provide to the Depositor, to the extent known, the form and
substance of any Form 8-K Disclosure Information, if applicable. The Depositor
shall compile the information provided to it, and prepare and file the Form
8-K,
which shall be signed by an officer of the Depositor.
(iii) Prior
to
January 30 of the first year in which the Trustee is able to do so under
applicable law, the Trustee shall, in accordance with industry standards, file
a
Form 15 Suspension Notice with respect to the Trust Fund, if applicable. On
or
before (x) March 1, 2007 and (y) unless and until a Form 15 Suspension Notice
shall have been filed, on or before March 10 of each year thereafter, the
Servicer shall provide the Trustee with an Annual Compliance Statement, together
with a copy of the Assessment of Compliance and Attestation Report to be
delivered by the Servicer pursuant to Sections 3.20 and 3.21 (including with
respect to any Sub-Servicer or any subcontractor, if required to be filed).
Prior to (x) March 31, 2007 and (y) unless and until a Form 15 Suspension Notice
shall have been filed, March 31 of each year thereafter, the Trustee shall
file
a Form 10-K, in substance as required by applicable law or applicable Securities
and Exchange Commission staff’s interpretations and conforming to industry
standards, with respect to the Trust Fund. Such Form 10-K shall include the
Assessment of Compliance, Attestation Report, Annual Compliance Statements
and
other documentation provided by the Servicer pursuant to Sections 3.20 and
3.21
(including with respect to any Sub-Servicer or subcontractor, if required to
be
filed) and Section 3.21 with respect to the Trustee, and the Form 10-K
certification in the form attached hereto as Exhibit N-1 (the “Certification”)
signed by the senior officer of the Depositor in charge of securitization and
returned to the Trustee 3 Business Days prior to the Form 10-K filing deadline.
The Trustee shall receive the items described in the preceding sentence no
later
than March 1 of each calendar year prior to the filing deadline for the Form
10-K.
Any
disclosure or information in addition to that described in the preceding
paragraph that is required to be included on Form 10-K (“Additional Form 10-K
Disclosure”) shall be determined and prepared by the entity that is indicated in
Exhibit T as the responsible party for providing that information, if other
than
the Trustee, and the Trustee will have no duty or liability to verify the
accuracy or sufficiency of any such Additional Form 10-K
Disclosure.
If
information, data and exhibits to be included in the Form 10-K are not so timely
delivered, the Trustee shall file an amended Form 10-K including such
documents as exhibits reasonably promptly after they are delivered to the
Trustee. The Trustee shall have no liability with respect to any failure to
properly prepare or file such periodic reports resulting from or relating to
the
Trustee’s inability or failure to timely obtain any information from any other
party.
Prior
to
(x) March 1, 2007 and (y) unless and until a Form 15 Suspension Notice shall
have been filed, prior to March 1 of each year thereafter, each entity that
is
indicated in Exhibit T as the responsible party for providing Additional Form
10-K Disclosure shall be required to provide to the Trustee and the Depositor,
to the extent known, the form and substance of any Additional Form 10-K
Disclosure Information, if applicable. The Trustee shall compile the information
provided to it, prepare the Form 10-K and forward the Form 10-K to the Depositor
for verification. The Depositor will approve, as to form and substance, or
disapprove, as the case may be, the Form 10-K by no later than March 25 of
the
relevant year (or the immediately preceding Business Day if March 25 is not
a
Business Day), an officer of the Depositor shall sign the Form 10-K and return
an electronic copy to XXXxx.xxxxxxxxxxxxx@xx.xxx
of such
signed Form 10-K (with an original executed hard copy to follow by overnight
mail) to the Trustee.
The
Servicer shall be responsible for determining the pool concentration applicable
to any Sub-Servicer to which the Servicer delegated any of its responsibilities
with respect to the Mortgage Loans at any time, for purposes of disclosure
as
required by Items 1117 and 1119 of Regulation AB. The Trustee will provide
electronic or paper copies of all Form 10-D, 8-K and 10-K filings free of charge
to any Certificateholder upon request. The Trustee shall have no liability
with
respect to any failure to properly file any Form 10-K resulting from or relating
to the Depositor’s failure to timely comply with the provisions of this
section.
The
Trustee shall sign a certification (in the form attached hereto as
Exhibit N-2) for the benefit of the Depositor and its officers, directors
and Affiliates in respect of items 1 through 3 of the Certification (provided,
however, that the Trustee shall not undertake an analysis of the Attestation
Report attached as an exhibit to the Form 10-K), and the Servicer shall sign
a
certification (the “Servicer Certification) solely with respect to the Servicer
(in the form attached hereto as Exhibit N-3) for the benefit of the
Depositor, the Trustee and each Person, if any, who “controls” the Depositor or
the Trustee within the meaning of the Securities Act of 1933, as amended, and
their respective officers and directors. Each such certification shall be
delivered to the Depositor and the Trustee by March 10th
of each
year (or if not a Business Day, the immediately preceding Business Day). The
Certification attached hereto as Exhibit N-1 shall be delivered to the
Trustee by March 20th
for
filing on or prior to March 30th
of each
year (or if not a Business Day, the immediately preceding Business
Day).
(c) (A)
The
Trustee shall indemnify and hold harmless the Depositor, the Servicer and their
respective officers, directors and Affiliates from and against any losses,
damages, penalties, fines, forfeitures, reasonable and necessary legal fees
and
related costs, judgments and other costs and expenses arising out of or based
upon (i) a breach of the Trustee’s obligations under this Section 4.07 caused by
the Trustee’s negligence, bad faith or willful misconduct in connection
therewith or (ii) any material misstatement or omission in the Assessment of
Compliance delivered by the Trustee pursuant to Section 3.21, and (B) the
Servicer shall indemnify and hold harmless the Depositor, the Trustee and their
respective officers, directors and Affiliates from and against any actual
losses, damages, penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgments and other costs and expenses arising out
of or
based upon (i) the failure of the Servicer to timely deliver the Servicer
Certification or (ii) any material misstatement or omission in the Statement
as
to Compliance delivered by the Servicer pursuant to Section 3.20, the Assessment
of Compliance delivered by the Servicer pursuant to Section 3.21 or the Servicer
Certification. If the indemnification provided for herein is unavailable or
insufficient to hold harmless the Depositor, then (i) the Trustee agrees that
it
shall contribute to the amount paid or payable by the Depositor as a result
of
the losses, claims, damages or liabilities of the Depositor in such proportion
as is appropriate to reflect the relative fault of the Depositor on the one
hand
and the Trustee on the other in connection with a breach of the Trustee’s
obligations under this Section 4.07 caused by the Trustee’s negligence, bad
faith or willful misconduct in connection therewith and (ii) the Servicer agrees
that it shall contribute to the amount paid or payable by the Depositor and
the
Trustee as a result of the losses, claims, damages or liabilities of the
Depositor and the Trustee in such proportion as is appropriate to reflect the
relative fault of the Depositor and the Trustee on the one hand and the Servicer
on the other in connection with the Servicer Certification and the related
obligations of the Servicer under this Section 4.07.
(d) The
Depositor shall indemnify and hold harmless the Trustee and the Servicer and
their respective officers, directors and affiliates from and against any losses,
damages, penalties, fines, forefeitures, reasonable and necessary legal fees
and
related costs, judgments and other costs and expenses arising out of or based
upon a breach of obligations of the Depositor under this Section 4.07 or the
Depositor’s negligence, bad faith or willful misconduct in connection
therewith.
(e) The
Trustee will have no duty to verify the accuracy or sufficiency of any
information not prepared by the Trustee which is to be included in any Form
10-D, Form 10-K or Form 8-K. The Trustee shall have no liability with respect
to
any failure to property prepare or file any Form 10-D or Form 10-K resulting
form or directly related to any failure of any other party to this Agreement
to
comply with the terms of this Agreement. Nothing herein shall be construed
to
require the Trustee or any officer, director or Affiliate thereof to sign any
Form 10-D, Form 10-K or Form 8-K.
Upon
any
filing with the Securities and Exchange Commission, the Trustee shall promptly
deliver to the Depositor a copy of any such executed report, statement or
information.
| SECTION 4.08 |
[Reserved].
|
| SECTION 4.09 |
Distributions
on the REMIC Regular Interests.
|
On
each
Distribution Date, the Trustee shall cause in the following order of priority,
the following amounts which shall be deemed to be distributed by REMIC 1 to
REMIC 2 on account of the REMIC 1 Regular Interests or withdrawn from the
Distribution Account and distributed to the holders of the Class R Certificates
(in respect of the Class R-1 Interest), as the case may be:
(i) to
Holders of each of REMIC 1 Regular Interest I and REMIC 1 Regular Interest
I-1-A
through I-39-B, pro rata, in an amount equal to (A) Uncertificated Accrued
Interest for such REMIC 1 Regular Interests for such Distribution Date, plus
(B)
any amounts payable in respect thereof remaining unpaid from previous
Distribution Dates;
(ii) to
the
extent of amounts remaining after the distributions made pursuant to clause
(A)
above, payments of principal shall be allocated as follows: first, to REMIC
1
Regular interests I-1-A through I-39-B starting with the lowest numerical
denomination until the Uncertificated Principal Balance of each such REMIC
1
Regular Interest is reduced to zero, provided that, for REMIC 1 Regular
Interests with the same numerical denomination, such payments of principal
shall
be allocated pro rata between such REMIC 1 Regular Interests, and second, to
the
extent of the Overcollateralization Release Amounts, to REMIC 1 Regular Interest
I until the Uncertificated Principal Balance of such REMIC 1 Regular Interest
is
reduced to zero; and
(iii) to
the
Holders of REMIC 1 Regular Interest I-39-B, (A) on each Distribution Date,
100%
of the amount paid in respect of Prepayment Charges and (B) 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.
(b) On
each
Distribution Date, the Trustee shall cause in the following order of priority,
the following amounts which shall be deemed to be distributed by REMIC 2 to
REMIC 3 on account of the REMIC 2 Regular Interests or withdrawn from the
Distribution Account and distributed to the holders of the Class R Certificates
(in respect of the Class R-1 Interest), as the case may be:
(i) to
the
Holders of REMIC 2 Regular Interest LTIO, in an amount equal to (A)
Uncertificated Accrued Interest for such REMIC 2 Regular Interest for such
Distribution Date, plus (B) any amounts in respect thereof remaining unpaid
from
previous Distribution Dates;
(ii) to
the
extent of Available Funds, to Holders of REMIC 2 Regular Interest LTAA, REMIC
2
Regular Interest LTIA1, REMIC 2 Regular Interest LTIIA1, REMIC 2 Regular
Interest LTIIA2, REMIC 2 Regular Interest LTIIA3, REMIC 2 Regular Interest
LTIIA4, REMIC 2 Regular Interest LTM1, REMIC 2 Regular Interest LTM2, REMIC
2
Regular Interest LTM3, REMIC 2 Regular Interest LTM4, REMIC 2 Regular Interest
LTM5, REMIC 2 Regular Interest LTM6, REMIC 2 Regular Interest LTM7, REMIC 2
Regular Interest LTM8, REMIC 2 Regular Interest LTM9, REMIC 2 Regular Interest
LTB1, REMIC 2 Regular Interest LTB2, REMIC 2 Regular Interest LTB3, REMIC 2
Regular Interest LTZZ and REMIC 2 Regular Interest LTP, on a pro
rata
basis,
in an amount equal to (A) the Uncertificated Accrued Interest for such
Distribution Date, plus (B) any amounts in respect thereof remaining unpaid
from
previous Distribution Dates. Amounts payable as Uncertificated Accrued Interest
in respect of REMIC 2 Regular Interest LTZZ shall be reduced and deferred when
the REMIC 2 Overcollateralization Amount is less than the REMIC 2
Overcollateralization Target Amount, by the lesser of (x) the amount of such
difference and (y) the Maximum Uncertificated Accrued Interest Deferral Amount
and such amount will be payable to the Holders of REMIC 2 Regular Interest
LTIA1, REMIC 2 Regular Interest LTIIA1, REMIC 2 Regular Interest LTIIA2, REMIC
2
Regular Interest LTIIA3, REMIC 2 Regular Interest LTIIA4, REMIC 2 Regular
Interest LTM1, REMIC 2 Regular Interest LTM2, REMIC 2 Regular Interest LTM3,
REMIC 2 Regular Interest LTM4, REMIC 2 Regular Interest LTM5, REMIC 2 Regular
Interest LTM6, REMIC 2 Regular Interest LTM7, REMIC 2 Regular Interest LTM8,
REMIC 2 Regular Interest LTM9, REMIC 2 Regular Interest LTB1, REMIC 2 Regular
Interest LTB2 and REMIC 2 Regular Interest LTB3, in the same proportion as
the
Overcollateralization Deficiency Amount is allocated to the Corresponding
Certificates and the Uncertificated Principal Balance of the REMIC 2 Regular
Interest LTZZ shall be increased by such amount; and
(iii) to
the
Holders of REMIC 2 Regular Interests, in an amount equal to the remainder of
the
Available Funds for such Distribution Date after the distributions made pursuant
to clause (i) above, allocated as follows:
(a) 98.00%
of
such remainder to the Holders of REMIC 2 Regular Interest LTAA and REMIC 2
Regular Interest LTP, until the Uncertificated Principal Balance of such
Uncertificated REMIC 2 Regular Interest is reduced to zero; provided, however,
that REMIC 2 Regular Interest LTP shall not be reduced until the Distribution
Date immediately following the expiration of the latest Prepayment Charge as
identified on the Prepayment Charge Schedule or any Distribution Date
thereafter, at which point such amount shall be distributed to REMIC 2 Regular
Interest LTP, until $100 has been distributed pursuant to this
clause;
(b) 2.00%
of
such remainder first, to the Holders of REMIC 2 Regular Interest LTIA1, REMIC
2
Regular Interest LTIIA1, REMIC 2 Regular Interest LTIIA2, REMIC 2 Regular
Interest LTIIA3, REMIC 2 Regular Interest LTIIA4, REMIC 2 Regular Interest
LTM1,
REMIC 2 Regular Interest LTM2, REMIC 2 Regular Interest LTM3, REMIC 2 Regular
Interest LTM4, REMIC 2 Regular Interest LTM5, REMIC 2 Regular Interest LTM6,
REMIC 2 Regular Interest LTM7, REMIC 2 Regular Interest LTM8, REMIC 2 Regular
Interest LTM9, REMIC 2 Regular Interest LTB1, REMIC 2 Regular Interest LTB2
and
REMIC 2 Regular Interest LTB3 of and in the same proportion as principal
payments are allocated to the Corresponding Certificates, until the
Uncertificated Principal Balances of such REMIC 2 Regular Interests are reduced
to zero, and second, to the Holders of REMIC 2 Regular Interest LTZZ, until
the
Uncertificated Principal Balance of such REMIC 2 Regular Interest is reduced
to
zero; and
(c) any
remaining amount to the Holders of the Class R Certificates (in respect of
the
Class R-1 Interest);
provided,
however, that (i) 98.00% and (ii) 2.00% of any principal payments that are
attributable to an Overcollateralization Release Amount shall be allocated
to
Holders of (i) REMIC 2 Regular Interest LTAA and REMIC 2 Regular Interest LTP,
in that order and (ii) REMIC 2 Regular Interest LTZZ, respectively; provided
that REMIC 2 Regular Interest LTP shall not be reduced until the Distribution
Date immediately following the expiration of the latest Prepayment Charge as
identified on the Prepayment Charge Schedule or any Distribution Date
thereafter, at which point such amount shall be distributed to REMIC 2 Regular
Interest LTP, until $100 has been distributed pursuant to this
clause.
| SECTION 4.10 |
Allocation
of Realized Losses.
|
(a) All
Realized Losses on the Mortgage Loans allocated to any Regular Certificate
shall
be allocated by the Trustee on each Distribution Date as follows: first, to
Net
Monthly Excess Cashflow; second, to Net Swap Payments received under the
Interest Rate Swap Agreement; third, to the Class C Certificates, until the
Certificate Principal Balance thereof has been reduced to zero; fourth, to
the
Class B-3 Certificates, until the Certificate Principal Balance thereof has
been
reduced to zero, fifth to the Class B-2 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero; sixth, to the Class B-1
Certificates, until the Certificate Principal Balance thereof has been reduced
to zero; seventh, to the Class M-9 Certificates, until the Certificate Principal
Balance thereof has been reduced to zero; eighth, to the Class M-8 Certificates,
until the Certificate Principal Balance thereof has been reduced to zero; ninth,
to the Class M-7 Certificates, until the Certificate Principal Balance thereof
has been reduced to zero; tenth, to the Class M-6 Certificates, until the
Certificate Principal Balance thereof has been reduced to zero; eleventh, to
the
Class M-5 Certificates, until the Certificate Principal Balance thereof has
been
reduced to zero; twelvfth, to the Class M-4 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero; thirteenth, to the Class
M-3
Certificates, until the Certificate Principal Balance thereof has been reduced
to zero; fourteenth, to the Class M-2 Certificates, until the Certificate
Principal Balance thereof has been reduced to zero and fifteenth, to the Class
M-1 Certificates, until the Certificate Principal Balance thereof has been
reduced to zero. All Realized Losses to be allocated to the Certificate
Principal Balances of all Classes on any Distribution Date shall be so allocated
after the actual distributions to be made on such date as provided above. All
references above to the Certificate Principal Balance of any Class of
Certificates shall be to the Certificate Principal Balance of such Class
immediately prior to the relevant Distribution Date, before reduction thereof
by
any Realized Losses, in each case to be allocated to such Class of Certificates,
on such Distribution Date.
Any
allocation of Realized Losses to a Mezzanine Certificate or a Class B
Certificate on any Distribution Date shall be made by reducing the Certificate
Principal Balance thereof by the amount so allocated; any allocation of Realized
Losses to a Class C Certificates shall be made first by reducing the amount
otherwise payable in respect thereof pursuant to Section 4.01(d)(iv). No
allocations of any Realized Losses shall be made to the Certificate Principal
Balances of the Class A Certificates or the Class P Certificates.
(b) With
respect to the REMIC 1 Regular Interests, all Realized Losses on the Mortgage
Loans shall be allocated shall be allocated by the Securities Administrator
on
each Distribution Date, first to REMIC 1 Regular Interest I until the
Uncertificated Principal Balance has been reduced to zero, and second, to REMIC
1 Regular Interest I-1-A through REMIC 1 Regular Interest I-39-B, starting
with
the lowest numerical denomination until such REMIC 1 Regular Interest has been
reduced to zero, provided that, for REMIC 1 Regular Interests with the same
numerical denomination, such Realized Losses shall be allocated pro rata between
such REMIC 1 Regular Interests.
(c) With
respect to the REMIC 2 Regular Interests, all Realized Losses on the Mortgage
Loans shall be deemed to have been allocated in the specified percentages,
as
follows: first, to Uncertificated Accrued Interest payable to the REMIC 2
Regular Interest LTAA and REMIC 2 Regular Interest LTZZ up to an aggregate
amount equal to the REMIC 2 Interest Loss Allocation Amount, 98% and 2%,
respectively; second, to the Uncertificated Principal Balances of REMIC 2
Regular Interest LTAA and REMIC 2 Regular Interest LTZZ up to an aggregate
amount equal to the REMIC 2 Principal Loss Allocation Amount, 98% and 2%,
respectively; third, to the Uncertificated Principal Balances of REMIC 2 Regular
Interest LTAA, REMIC 2 Regular Interest LTB3 and REMIC 2 Regular Interest LTZZ,
98%, 1% and 1%, respectively, until the Uncertificated Principal Balance of
REMIC 2 Regular Interest LTB3 has been reduced to zero; fourth, to the
Uncertificated Principal Balances of REMIC 2 Regular Interest LTAA, REMIC 2
Regular Interest LTB2 and REMIC 2 Regular Interest LTZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Principal Balance of REMIC 2 Regular
Interest LTB2 has been reduced to zero; fifth, to the Uncertificated Principal
Balances of REMIC 2 Regular Interest LTAA, REMIC 2 Regular Interest LTB1 and
REMIC 2 Regular Interest LTZZ, 98%, 1% and 1%, respectively, until the
Uncertificated Principal Balance of REMIC 2 Regular Interest LTB1 has been
reduced to zero; sixth, to the Uncertificated Principal Balances of REMIC 2
Regular Interest LTAA, REMIC 2 Regular Interest LTM9 and REMIC 2 Regular
Interest LTZZ, 98%, 1% and 1%, respectively, until the Uncertificated Principal
Balance of REMIC 2 Regular Interest LTM9 has been reduced to zero; seventh,
to
the Uncertificated Principal Balances of REMIC 2 Regular Interest LTAA, REMIC
2
Regular Interest LTM8 and REMIC 2 Regular Interest LTZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Principal Balance of REMIC 2 Regular
Interest LTM8 has been reduced to zero; eighth, to the Uncertificated Principal
Balances of REMIC 2 Regular Interest LTAA, REMIC 2 Regular Interest LTM7 and
REMIC 2 Regular Interest LTZZ, 98%, 1% and 1%, respectively, until the
Uncertificated Principal Balance of REMIC 2 Regular Interest LTM7 has been
reduced to zero; ninth, to the Uncertificated Principal Balances of REMIC 2
Regular Interest LTAA, REMIC 2 Regular Interest LTM6 and REMIC 2 Regular
Interest LTZZ, 98%, 1% and 1%, respectively, until the Uncertificated Principal
Balance of REMIC 2 Regular Interest LTM6 has been reduced to zero; tenth, to
the
Uncertificated Principal Balances of REMIC 2 Regular Interest LTAA, REMIC 2
Regular Interest LTM5 and REMIC 2 Regular Interest LTZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Principal Balance of REMIC 2 Regular
Interest LTM5 has been reduced to zero; eleventh, to the Uncertificated
Principal Balances of REMIC 2 Regular Interest LTAA, REMIC 2 Regular Interest
LTM4 and REMIC 2 Regular Interest LTZZ, 98%, 1% and 1%, respectively, until
the
Uncertificated Principal Balance of REMIC 2 Regular Interest LTM4 has been
reduced to zero; twelfth, to the Uncertificated Principal Balances of REMIC
2
Regular Interest LTAA, REMIC 2 Regular Interest LTM3 and REMIC 2 Regular
Interest LTZZ, 98%, 1% and 1%, respectively, until the Uncertificated Principal
Balance of REMIC 2 Regular Interest LTM3 has been reduced to zero; thirteenth,
to the Uncertificated Principal Balances of REMIC 2 Regular Interest LTAA,
REMIC
2 Regular Interest LTM2 and REMIC 2 Regular Interest LTZZ, 98%, 1% and 1%,
respectively, until the Uncertificated Principal Balance of REMIC 2 Regular
Interest LTM2 has been reduced to zero; fourteenth, to the Uncertificated
Principal Balances of REMIC 2 Regular Interest LTAA, REMIC 2 Regular Interest
LTM1 and REMIC 2 Regular Interest LTZZ, 98%, 1% and 1%, respectively, until
the
Uncertificated Principal Balance of REMIC 2 Regular Interest LTM1 has been
reduced to zero.
ARTICLE
V
THE
CERTIFICATES
| SECTION 5.01 |
The
Certificates.
|
Each
of
the Class A Certificates, Class B Certificates, the Mezzanine Certificates,
the
Class B Certificates, the Class P Certificates, the Class C Certificates and
the
Residual Certificates shall be substantially in the forms annexed hereto as
exhibits, and shall, on original issue, be executed, authenticated and delivered
by the Trustee to or upon the order of the Depositor concurrently with the
sale
and assignment to the Trustee of the Trust Fund. The Fixed Rate Certificates
and
the Floating Rate Certificates shall be initially evidenced by one or more
Certificates representing a Percentage Interest with a minimum dollar
denomination of $25,000 and integral dollar multiples of $1.00 in excess
thereof, provided that the Fixed Rate Certificates and the Floating Rate
Certificates must be purchased in minimum total investments of $100,000 per
class, except that one Certificate of each such Class of Certificates may be
in
a different denomination so that the sum of the denominations of all outstanding
Certificates of such Class shall equal the Certificate Principal Balance of
such
Class on the Closing Date. The Class P Certificates, the Class C Certificates
and the Residual Certificates are issuable in any Percentage Interests;
provided, however, that the sum of all such percentages for each such Class
totals 100% and no more than ten Certificates of each Class may be issued and
outstanding at any one time.
The
Certificates shall be executed on behalf of the Trust by manual or facsimile
signature on behalf of the Trustee by a Responsible Officer. Certificates
bearing the manual or facsimile signatures of individuals who were, at the
time
when such signatures were affixed, authorized to sign on behalf of the Trustee
shall bind the Trust, notwithstanding that such individuals or any of them
have
ceased to be so authorized prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of such Certificate.
No
Certificate shall be entitled to any benefit under this Agreement or be valid
for any purpose, unless such Certificate shall have been manually authenticated
by the Trustee substantially in the form provided for herein, and such
authentication upon any Certificate 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.
Subject to Section 5.02(c), the Fixed Rate Certificates and the Floating Rate
Certificates shall be Book-Entry Certificates. The other Classes of Certificates
shall not be Book-Entry Certificates.
| SECTION 5.02 |
Registration
of Transfer and Exchange of
Certificates.
|
(a) The
Certificate Registrar shall cause to be kept at the Corporate Trust Office
a
Certificate Register in which, subject to such reasonable regulations as it
may
prescribe, the Certificate Registrar shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein provided.
The Trustee shall initially serve as Certificate Registrar for the purpose
of
registering Certificates and transfers and exchanges of Certificates as herein
provided.
Upon
surrender for registration of transfer of any Certificate at any office or
agency of the Certificate Registrar maintained for such purpose pursuant to
the
foregoing paragraph which office shall initially be the offices designated
by
the Trustee and, in the case of a Residual Certificate, upon satisfaction of
the
conditions set forth below, the Trustee on behalf of the Trust shall execute,
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Certificates of the same aggregate Percentage
Interest.
At
the
option of the Certificateholders, Certificates may be exchanged for other
Certificates in authorized denominations and the same aggregate Percentage
Interests, upon surrender of the Certificates to be exchanged at any such office
or agency. Whenever any Certificates are so surrendered for exchange, the
Trustee shall execute on behalf of the Trust and authenticate and deliver the
Certificates which the Certificateholder making the exchange is entitled to
receive. Every Certificate presented or surrendered for registration of transfer
or exchange shall (if so required by the Trustee or the Certificate Registrar)
be duly endorsed by, or be accompanied by a written instrument of transfer
satisfactory to the Trustee and the Certificate Registrar duly executed by,
the
Holder thereof or his attorney duly authorized in writing. In addition, (i)
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-1
Interest, the Class R-2 Interest and the Class R-3 Interest that was evidenced
by the Class R Certificate being exchanged and (ii) with respect to each Class
R-X Certificate, the holder thereof may exchange, in the manner described above,
such Class R-X Certificate for three separate certificates, each representing
such holder’s respective Percentage Interest in the Class R-4 Interest, the
Class R-5 Interest and the Class R-6 Interest that was evidenced by the Class
R-X Certificate being exchanged.
(b) Except
as
provided in paragraph (c) below, the Book-Entry Certificates shall at all times
remain registered in the name of the Depository or its nominee and at all times:
(i) registration of such Certificates may not be transferred by the Trustee
except to another Depository; (ii) the Depository shall maintain book-entry
records with respect to the Certificate Owners and with respect to ownership
and
transfers of such Certificates; (iii) ownership and transfers of registration
of
such Certificates on the books of the Depository shall be governed by applicable
rules established by the Depository; (iv) the Depository may collect its usual
and customary fees, charges and expenses from its Depository Participants;
(v)
the Trustee shall for all purposes deal with the Depository as representative
of
the Certificate Owners of the Certificates for purposes of exercising the rights
of Holders under this Agreement, and requests and directions for and votes
of
such representative shall not be deemed to be inconsistent if they are made
with
respect to different Certificate Owners; (vi) the Trustee may rely and shall
be
fully protected in relying upon information furnished by the Depository with
respect to its Depository Participants and furnished by the Depository
Participants with respect to indirect participating firms and Persons shown
on
the books of such indirect participating firms as direct or indirect Certificate
Owners; and (vii) the direct participants of the Depository shall have no rights
under this Agreement under or with respect to any of the Certificates held
on
their behalf by the Depository, and the Depository may be treated by the Trustee
and its agents, employees, officers and directors as the absolute owner of
the
Certificates for all purposes whatsoever.
All
transfers by Certificate Owners of Book-Entry Certificates shall be made in
accordance with the procedures established by the Depository Participant or
brokerage firm representing such Certificate Owners. Each Depository Participant
shall only transfer Book-Entry Certificates of Certificate Owners that it
represents or of brokerage firms for which it acts as agent in accordance with
the Depository’s normal procedures. The parties hereto are hereby authorized to
execute a Letter of Representations with the Depository or take such other
action as may be necessary or desirable to register a Book-Entry Certificate
to
the Depository. In the event of any conflict between the terms of any such
Letter of Representation and this Agreement, the terms of this Agreement shall
control.
(c) If
(i)(x)
the Depository or the Depositor advises the Trustee in writing that the
Depository is no longer willing or able to discharge properly its
responsibilities as Depository and (y) the Trustee or the Depositor is unable
to
locate a qualified successor or (ii) after the occurrence of a Servicer Event
of
Termination, the Certificate Owners of the Book-Entry Certificates representing
Percentage Interests of such Classes aggregating not less than 51% advise the
Trustee and Depository through the Financial Intermediaries and the Depository
Participants in writing that the continuation of a book-entry system through
the
Depository to the exclusion of definitive, fully registered certificates (the
“Definitive Certificates”) to Certificate Owners is no longer in the best
interests of the Certificate Owners. Upon surrender to the Certificate Registrar
of the Book-Entry Certificates by the Depository, accompanied by registration
instructions from the Depository for registration, the Trustee shall, in the
case of (i) and (ii) above, execute on behalf of the Trust and authenticate
the
Definitive Certificates. Neither the Depositor nor the Trustee shall be liable
for any delay in delivery of such instructions and may conclusively rely on,
and
shall be protected in relying on, such instructions. Upon the issuance of
Definitive Certificates, the Trustee, the Certificate Registrar, the Servicer,
any Paying Agent and the Depositor shall recognize the Holders of the Definitive
Certificates as Certificateholders hereunder.
(d) No
transfer, sale, pledge or other disposition of any Class B-1 Certificate, Class
B-2 Certificate, Class B-3 Certificate, Class C Certificate, Class P Certificate
or Residual Certificate (the “Private Certificates”) shall be made unless such
disposition is exempt from the registration requirements of the Securities
Act
of 1933, as amended (the “1933 Act”), and any applicable state securities laws
or is made in accordance with the 1933 Act and laws. In the event of any such
transfer (other than in connection with (i) the initial transfer of any such
Certificate by the Depositor to an Affiliate of the Depositor or, in the case
of
the Class R-X Certificates, the first transfer by an Affiliate of the Depositor
or the first transfer by the intial transferee of an Affiliate of the Depositor,
(ii) the transfer of any such Class C, Class P or Residual Certificate to the
issuer under the Indenture or the indenture trustee under the Indenture or
(iii)
a transfer of any such Class C, Class P or Residual Certificate from the issuer
under the Indenture or the indenture trustee under the Indenture to the
Depositor or an Affiliate of the Depositor), (i) unless such transfer is made
in
reliance upon Rule 144A (as evidenced by the investment letter delivered to
the
Trustee, in substantially the form attached hereto as Exhibit J) under the
1933
Act, the Trustee and the Depositor shall require a written Opinion of Counsel
(which may be in-house counsel) acceptable to and in form and substance
reasonably satisfactory to the Trustee and the Depositor that such transfer
may
be made pursuant to an exemption, describing the applicable exemption and the
basis therefor, from the 1933 Act or is being made pursuant to the 1933 Act,
which Opinion of Counsel shall not be an expense of the Trustee or the Depositor
or (ii) the Trustee shall require the transferor to execute a transferor
certificate (in substantially the form attached hereto as Exhibit L) and the
transferee to execute an investment letter (in substantially the form attached
hereto as Exhibit J) acceptable to and in form and substance reasonably
satisfactory to the Depositor and the Trustee certifying to the Depositor and
the Trustee the facts surrounding such transfer, which investment letter shall
not be an expense of the Trustee or the Depositor. The Holder of a Private
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, 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 transferor will be deemed to have made each of the transferor
representations and warranties set forth Exhibit L hereto in respect of such
interest as if it was evidenced by a Definitive Certificate and the transferee
will be deemed to have made each of the transferee representations and
warranties set forth Exhibit J 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 above in this
Section 5.02(d) will be required in connection with the transfer, on the Closing
Date, of any Residual Certificate by the Depositor to an “accredited investor”
within the meaning of Rule 501 of the 1933 Act.
No
transfer of a Class C, Class P or Residual Certificate or any interest therein
shall be made to any Plan, any Person acting, directly or indirectly, on behalf
of any such Plan or any Person acquiring such Certificates with “Plan Assets” of
a Plan within the meaning of the Department of Labor regulation promulgated
at
29 C.F.R. § 2510.3-101 (“Plan Assets”), as certified by such transferee in the
form of Exhibit M, unless the Trustee is provided with an Opinion of Counsel
for
the benefit of the Depositor, the Trustee and the Servicer and on which they
may
rely which establishes to the satisfaction of the Trustee that the purchase
of
such Certificates is permissible under applicable law, will not constitute
or
result in any prohibited transaction under ERISA or Section 4975 of the Code
and
will not subject the Depositor, the Servicer, the Trustee 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. Neither a certification nor an Opinion of Counsel
will be required 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 C, Class P or Residual Certificate to the issuer under the
Indenture or the indenture trustee under the Indenture or (iii) a transfer
of
any such Class C, Class P or Residual 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, the Depositor or any Affiliate
thereof shall have deemed to have represented that such Affiliate is not a
Plan
or a Person investing Plan Assets) and the Trustee shall be entitled to
conclusively rely upon a representation (which, upon the request of the Trustee,
shall be a written representation) from the Transferor of the status of such
transferee as an affiliate of the Depositor.
Prior
to
the termination of the Supplemental Interest Trust, each transferee of a Class
A, Mezzanine or Private Certificate shall be deemed to have represented by
virtue of its purchase or holding of such Certificate (or interest therein)
that
either (i) such transferee is not a Plan, or a Person acting on behalf of a
Plan
or purchasing such Certificate with Plan Assets, or (ii)(A) it is an accredited
investor within the meaning of Prohibited Transaction Exemption (“PTE”) 90-59,
55 Fed. Reg. 36724 (September 6, 1990), as amended by PTE 97-34, 62 Fed. Reg.
39021 (July 21, 1997), PTE 2000-58, 65 Fed. Reg. 67765 (November 13, 2000)
and
PTE 2002-41, 67 Fed. Reg. 54487 (August 22, 2002) (the “Exemption”) and (B) the
acquisition and holding of such Certificate and the separate right to receive
payments from the Supplemental Interest Trust are eligible for exemptive relief
under (I) PTE 95-60 or (II) except in the case of a Private Certificate, XXX
00-00, XXX 00-00, XXX 90-1, or PTE 96-23.
Subsequent
to the termination of the Supplemental Interest Trust, each Transferee of a
Mezzanine, Class B-1, Class B-2 or Class B-3 Certificate will be deemed to
have
represented by virtue of its purchase or holding of such Certificate (or
interest therein) that either (a) such Transferee is not a Plan, or a Person
acting on behalf of a Plan or purchasing such Certificate with Plan Assets,
(b)
except in the case of a Class B-1, Class B-2 or Class B-3 Certificate, it has
acquired and is holding such Certificate in reliance on the Exemption and that
it understands that there are certain conditions to the availability of the
Exemption including that such Certificate must be rated, at the time of
purchase, not lower than “BBB-” (or its equivalent) by a Rating Agency or (c)
the following conditions are satisfied: (i) such Transferee is an insurance
company, (ii) the source of funds used to purchase or hold such Certificate
(or
interest therein) is an “insurance company general account” as defined in PTE
95-60, and (iii) the conditions set forth in Sections I and III of PTE 95-60
have been satisfied.
If
any
Mezzanine Certificate or Private Certificate or any interest therein is acquired
or held in violation of the provisions of the three preceding paragraphs, 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 interest therein was effected in violation of the
provisions of the three preceding paragraphs shall indemnify and hold harmless
the Depositor, the Servicer, the NIMS Insurer, the Trustee and the Trust from
and against any and all liabilities, claims, costs or expenses incurred by
those
parties as a result of that acquisition or holding.
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
appointed the Depositor or its designee as its attorney-in-fact to negotiate
the
terms of any mandatory sale under clause (v) below and to execute all
instruments of transfer and to do all other things necessary in connection
with
any such sale, and the rights of each Person acquiring any Ownership Interest
in
a Residual Certificate are expressly subject to the following
provisions:
(i) 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.
(ii) No
Person
shall acquire an Ownership Interest in a Residual Certificate unless such
Ownership Interest is a pro
rata
undivided interest.
(iii) In
connection with any proposed transfer of any Ownership Interest in a Residual
Certificate, the Trustee shall as a condition to registration of the transfer,
require delivery to it, in form and substance satisfactory to it, of each of
the
following:
(A) an
affidavit in the form of Exhibit K hereto from the proposed transferee to the
effect that such transferee is a Permitted Transferee and 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 who
is
not a Permitted Transferee; and
(B) a
covenant of the proposed transferee to the effect that the proposed transferee
agrees to be bound by and to abide by the transfer restrictions applicable
to
the Residual Certificates.
(iv) Any
attempted or purported transfer of any Ownership Interest in a Residual
Certificate in violation of the provisions of this Section shall be absolutely
null and void and shall vest no rights in the purported transferee. If any
purported transferee shall, in violation of the provisions of this Section,
become a Holder of a Residual Certificate, then the prior Holder of such
Residual Certificate that is a Permitted Transferee shall, upon discovery that
the registration of transfer of such Residual Certificate was not in fact
permitted by this Section, be restored to all rights as Holder thereof
retroactive to the date of registration of 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 or for making any distributions due on such Residual Certificate
to the Holder thereof or taking any other action with respect to such Holder
under the provisions of this Agreement so long as the Trustee received the
documents specified in clause (iii). The Trustee shall be entitled to recover
from any Holder of a Residual Certificate that was in fact not a Permitted
Transferee at the time such distributions were made all distributions made
on
such Residual Certificate. Any such distributions so recovered by the Trustee
shall be distributed and delivered by the Trustee to the prior Holder of such
Residual Certificate that is a Permitted Transferee.
(v) If
any
Person other than a Permitted Transferee acquires any Ownership Interest in
a
Residual Certificate in violation of the restrictions in this Section, then
the
Trustee shall have the right but not the obligation, without notice to the
Holder of such Residual Certificate or any other Person having an Ownership
Interest therein, to notify the Depositor to arrange for the sale of such
Residual Certificate. The proceeds of such sale, net of commissions (which
may
include commissions payable to the Depositor or its affiliates in connection
with such sale), expenses and taxes due, if any, will be remitted by the Trustee
to the previous Holder of such Residual Certificate that is a Permitted
Transferee, except that in the event that the Trustee determines that the Holder
of such Residual Certificate may be liable for any amount due under this Section
or any other provisions of this Agreement, the Trustee may withhold a
corresponding amount from such remittance as security for such claim. The terms
and conditions of any sale under this clause (v) shall be determined in the
sole
discretion of the Trustee and it shall not be liable to any Person having an
Ownership Interest in a Residual Certificate as a result of its exercise of
such
discretion.
(vi) If
any
Person other than a Permitted Transferee acquires any Ownership Interest in
a
Residual Certificate in violation of the restrictions in this Section, then
the
Trustee upon receipt of reasonable compensation will provide to the Internal
Revenue Service, and to the persons specified in Sections 860E(e)(3) and (6)
of
the Code, information needed to compute the tax imposed under Section 860E(e)(5)
of the Code on transfers of residual interests to disqualified
organizations.
The
foregoing provisions of this Section shall cease to apply to transfers occurring
on or after the date on which there shall have been delivered to the Trustee
and
the NIMS Insurer, in form and substance satisfactory to the Trustee and the
NIMS
Insurer, (i) written notification from each Rating Agency that the removal
of
the restrictions on transfer set forth in this Section will not cause such
Rating Agency to downgrade its rating of the Certificates and (ii) an Opinion
of
Counsel to the effect that such removal will not cause any REMIC created
hereunder to fail to qualify as a REMIC.
(e) No
service charge shall be made for any registration of transfer or exchange of
Certificates of any Class, but the Certificate Registrar 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.
All
Certificates surrendered for registration of transfer or exchange shall be
canceled by the Certificate Registrar and disposed of pursuant to its standard
procedures.
| SECTION 5.03 |
Mutilated,
Destroyed, Lost or Stolen
Certificates.
|
If
(i)
any mutilated Certificate is surrendered to the Certificate Registrar or the
Certificate Registrar receives evidence to its satisfaction of the destruction,
loss or theft of any Certificate and (ii) there is delivered to the Trustee,
the
Depositor, the NIMS Insurer and the Certificate Registrar such security or
indemnity as may be required by them to save each of them harmless, then, in the
absence of notice to the Trustee or the Certificate Registrar that such
Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute on behalf of the Trust, authenticate and deliver, in exchange for or
in
lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like tenor and Percentage Interest. Upon the issuance of any
new
Certificate under this Section, the Trustee or the Certificate Registrar 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 and the Certificate Registrar) in
connection therewith. Any duplicate Certificate issued pursuant to this Section,
shall constitute complete and indefeasible evidence of ownership in the Trust,
as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
| SECTION 5.04 |
Persons
Deemed Owners.
|
The
Servicer, the Depositor, the Trustee, the NIMS Insurer, the Certificate
Registrar, any Paying Agent and any agent of the Servicer, the Depositor, the
Trustee, the NIMS Insurer, the Certificate Registrar or any Paying Agent may
treat the Person, including a Depository, 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 Servicer, the Trust, the Trustee nor any agent of any of them
shall be affected by notice to the contrary.
| SECTION 5.05 |
Appointment
of Paying Agent.
|
(a) The
Paying Agent shall make distributions to Certificateholders from the
Distribution Account pursuant to Section 4.01 and shall report the amounts
of
such distributions to the Trustee. The duties of the Paying Agent may include
the obligation (i) to withdraw funds from the Collection Account pursuant to
Section 3.11(a) and for the purpose of making the distributions referred to
above and (ii) to distribute statements and provide information to
Certificateholders as required hereunder. The Paying Agent hereunder shall
at
all times be an entity duly organized and validly existing under the laws of
the
United States of America or any state thereof, authorized under such laws to
exercise corporate trust powers and subject to supervision or examination by
federal or state authorities. The Paying Agent shall initially be the Trustee.
The Trustee may appoint a successor to act as Paying Agent, which appointment
shall be reasonably satisfactory to the Depositor and the NIMS
Insurer.
(b) The
Trustee shall cause the Paying Agent (if other than the Trustee) to execute
and
deliver to the Trustee an instrument in which such Paying Agent shall agree
with
the Trustee that such Paying Agent shall hold all sums, if any, held by it
for
payment to the Certificateholders in trust for the benefit of the
Certificateholders entitled thereto until such sums shall be paid to such
Certificateholders and shall agree that it shall comply with all requirements
of
the Code regarding the withholding of payments in respect of Federal income
taxes due from Certificate Owners and otherwise comply with the provisions
of
this Agreement applicable to it.
ARTICLE
VI
THE
SERVICER, THE DEPOSITOR
AND THE
CREDIT RISK MANAGER
| SECTION 6.01 |
Liability
of the Servicer and the Depositor.
|
The
Servicer shall be liable in accordance herewith only to the extent of the
obligations specifically imposed upon and undertaken by Servicer herein. The
Depositor shall be liable in accordance herewith only to the extent of the
obligations specifically imposed upon and undertaken by the
Depositor.
| SECTION 6.02 |
Merger
or Consolidation of, or Assumption of the Obligations of, the Servicer
or
the Depositor.
|
Any
entity into which the Servicer or Depositor may be merged or consolidated,
or
any entity resulting from any merger, conversion or consolidation to which
the
Servicer or the Depositor shall be a party, or any corporation succeeding to
the
business of the Servicer or the Depositor, shall be the successor of the
Servicer or the Depositor, 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 Servicer shall satisfy all the requirements of Section 7.02 with
respect to the qualifications of a successor Servicer.
| SECTION 6.03 |
Limitation
on Liability of the Servicer and
Others.
|
Neither
the Servicer nor the Depositor nor any of the directors or officers or employees
or agents of the Servicer or the Depositor shall be under any liability to
the
Trust or the Certificateholders for any action taken or for refraining from
the
taking of any action by the Servicer or the Depositor in good faith pursuant
to
this Agreement, or for errors in judgment; provided, however, that this
provision shall not protect the Servicer, the Depositor or any such Person
against any liability which would otherwise be imposed by reason of its willful
misfeasance, bad faith or negligence in the performance of duties of the
Servicer or the Depositor, as the case may be, or by reason of its reckless
disregard of its obligations and duties of the Servicer or the Depositor, as
the
case may be, hereunder. The Servicer and any director or officer or employee
or
agent of the Servicer 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. The Servicer and the Depositor, and any director or officer
or employee or agent of the Servicer or the Depositor, shall be indemnified
by
the Trust and held harmless against any loss, liability or expense incurred
in
connection with (i) any legal action relating to this Agreement or the
Certificates, other than any loss, liability or expense related to any specific
Mortgage Loan or Mortgage Loans (except as any such loss, liability or expense
shall be otherwise reimbursable pursuant to this Agreement) and any loss,
liability or expense incurred by reason of its willful misfeasance, bad faith
or
negligence or by reason of its reckless disregard of its obligations and duties
hereunder or by reason of its failure to perform its obligations or duties
hereunder and (ii) any breach of a representation or warranty regarding the
Mortgage Loans. The Servicer or the Depositor may initiate any such action
which
it may deem necessary or desirable in respect of this Agreement, and the rights
and duties of the parties hereto and the interests of the Certificateholders
hereunder. In such event, the reasonable legal expenses and costs of such action
and any liability resulting therefrom shall be expenses, costs and liabilities
of the Trust and the Servicer shall be entitled to be reimbursed therefor from
the Collection 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 Collection Account. The Servicer’s right to indemnity
or reimbursement pursuant to this Section shall survive any resignation or
termination of the Servicer pursuant to Section 6.04 or 7.01 with respect to
any
losses, expenses, costs or liabilities arising prior to such resignation or
termination (or arising from events that occurred prior to such resignation
or
termination). This paragraph shall apply to the Servicer solely in its capacity
as Servicer hereunder and in no other capacities. Without limiting the
foregoing, the Servicer shall undertake to defend any claims against the Trust
Fund, the Trustee and/or itself initiated by a Borrower or otherwise related
to
the servicing of any Mortgage Loan, the reasonable legal expenses and costs
of
such action and any liability resulting therefrom shall be expenses, costs
and
liabilities of the Trust and the Servicer shall be entitled to be reimbursed
therefor from the Collection 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 Collection Account.
The
Credit Risk Manager and any director, officer, employee or agent of the Credit
Risk Manager shall be indemnified and held harmless by the Trust Fund against
any loss, liability or expense (not including expenses, disbursements and
advances incurred or made by the Credit Risk Manager, including the compensation
and the expenses and disbursements of its agents and counsel, in the ordinary
course of its appointment as Credit Risk Manager or its performance of its
duties as such) incurred in connection with any claim or legal action or any
pending or threatened claim or legal action relating to this Agreement, the
Credit
Risk Management Agreement
or the
Certificates, other than any loss, liability or expense (i) resulting from
a
breach of the Servicer’s obligations and duties under the Pooling Agreement or
Credit Risk Management Agreement for which the Credit Risk Manager is
indemnified by the Servicer under the Credit Risk Management Agreement or (ii)
incurred by reason of willful misfeasance, bad faith or negligence in the
performance of duties under the Credit Risk Management Agreement or by reason
of
reckless disregard of obligations and duties thereunder.
| SECTION 6.04 |
Servicer
Not to Resign.
|
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. 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.
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, no Sub-Servicer shall be a third-party
beneficiary hereunder and the parties hereto shall not be required to recognize
any Subservicer as an indemnitee under this Agreement.
| SECTION 6.05 |
Delegation
of Duties.
|
In
the
ordinary course of business, the Servicer at any time may delegate any of its
duties hereunder to any Person, including any of its Affiliates, who agrees
to
conduct such duties in accordance with standards comparable to those set forth
in Section 3.01. Such delegation shall not relieve the Servicer of its
liabilities and responsibilities with respect to such duties and shall not
constitute a resignation within the meaning of Section 6.04. Except as provided
in Section 3.02, no such delegation is permitted that results in the delegee
subservicing any Mortgage Loans. The Servicer shall provide the Trustee and
the
NIMS Insurer with 60 days prior written notice prior to the delegation of any
of
its duties to any Person other than any of the Servicer’s Affiliates or their
respective successors and assigns.
| SECTION 6.06 |
[Reserved].
|
| SECTION 6.07 |
Inspection.
|
The
Servicer, in its capacity as Servicer, shall afford the Trustee and the NIMS
Insurer, upon reasonable notice, during normal business hours, access to all
records maintained by the Servicer in respect of its rights and obligations
hereunder and access to officers of the Servicer responsible for such
obligations.
| SECTION 6.08 |
Credit
Risk Manager.
|
For
and
on behalf of the Depositor, the Credit Risk Manager will provide reports and
recommendations concerning certain delinquent and defaulted Mortgage Loans,
and
as to the collection of any Prepayment Charges with respect to the Mortgage
Loans. Such reports and recommendations will be based upon information provided
to the Credit Risk Manager pursuant to the respective Credit Risk Management
Agreement, and the Credit Risk Manager shall look solely to the Servicer for
all
information and data (including loss and delinquency information and data)
relating to the servicing of the Mortgage Loans. Upon any termination of the
Credit Risk Manager or the appointment of a successor Credit Risk Manager,
the
Depositor shall give written notice thereof to the Servicer, the Trustee and
each Rating Agency. Notwithstanding the foregoing, the termination of the Credit
Risk Manager pursuant to this Section shall not become effective until the
appointment of a successor Credit Risk Manager.
| SECTION 6.09 |
Limitation
Upon Liability of the Credit Risk
Manager.
|
Neither
the Credit Risk Manager, nor any of its directors, officers, employees, or
agents shall be under any liability to the Trustee, the Certificateholders,
the
Servicer and/or the the Depositor for any action taken or for refraining from
the taking of any action made in good faith pursuant to this Agreement, in
reliance upon information provided by the Servicer under the Credit Risk
Management Agreement, or for errors in judgment; provided, however, that this
provision shall not protect the Credit Risk Manager or any such person against
liability that would otherwise be imposed by reason of willful malfeasance
or
bad faith in its performance of its duties. The Credit Risk Manager and any
director, officer, employee, or agent of the Credit Risk Manager may rely in
good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder, and may rely
in good faith upon the accuracy of information furnished by the Servicer
pursuant to the Credit Risk Management Agreement in the performance of its
duties thereunder and hereunder.
| SECTION 6.10 |
Removal
of the Credit Risk Manager.
|
The
Credit Risk Manager may be removed as Credit Risk Manager by Certificateholders
holding not less than 66 2/3% of the Voting Rights in the Trust Fund, in the
exercise of its or their sole discretion. The Certificateholders shall provide
written notice of the Credit Risk Manager’s removal to the Trustee. Upon receipt
of such notice, the Trustee shall provide written notice to the Credit Risk
Manager of its removal, which shall be effective upon receipt of such notice
by
the Credit Risk Manager.
ARTICLE
VII
DEFAULT
| SECTION 7.01 |
Servicer
Events of Termination.
|
(a) If
any
one of the following events (“Servicer Events of Termination”) shall occur and
be continuing:
(i) (A)
The
failure by the Servicer to make any Advance;
or (B)
any other failure by the Servicer to deposit in the Collection Account or the
Distribution Account any deposit required to be made under the terms of this
Agreement which continues unremedied for a period of one Business Day after
the
date upon which written notice at the addresses listed in Section 11.05 (such
written notice shall also be sent via facsimile) hereof of such failure shall
have been given to the Servicer by the Trustee or to the Servicer and the
Trustee by the NIMS Insurer or any Holders of a Regular Certificate evidencing
at least 25% of the Voting Rights; or
(ii) The
failure by the Servicer to make any required Servicing Advance which failure
continues unremedied for a period of 30 days, or the failure by the Servicer
duly to observe or perform, in any material respect, any other covenants,
obligations or agreements of the Servicer as set forth in this Agreement, which
failure 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), after the date (A) on which written notice
of
such failure, requiring the same to be remedied, shall have been given to the
Servicer by the Trustee or to the Trustee by the NIMS Insurer or any Holders
of
a Regular Certificate evidencing at least 25% of the Voting Rights or (B) of
actual knowledge of such failure by a Servicing Officer of the Servicer;
or
(iii) The
entry
against the Servicer of a decree or order by a court or agency or supervisory
authority having jurisdiction in the premises for the appointment of a trustee,
conservator, receiver or liquidator in any insolvency, conservatorship,
receivership, readjustment of debt, marshalling of assets and liabilities or
similar proceedings, or for the winding up or liquidation of its affairs, and
the continuance of any such decree or order unstayed and in effect for a period
of 60 days; or
(iv) The
Servicer shall voluntarily go into liquidation, consent to the appointment
of a
conservator or receiver or liquidator or similar person in any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings of or relating to the Servicer or of or relating to all or
substantially all of its property; or a decree or order of a court or agency
or
supervisory authority having jurisdiction in the premises for the appointment
of
a conservator, receiver, liquidator or similar person in any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings, 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, unbonded or unstayed for a period of 60 days; or 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.
(b) then,
and
in each and every such case, so long as a Servicer Event of Termination shall
not have been remedied within the applicable grace period, (x) with respect
solely to clause (i)(A) above, if such Advance is not made by 5:00 P.M., New
York time, on the Business Day immediately following the Servicer Remittance
Date (provided the Trustee shall give the Servicer notice of such failure to
advance by 5:00 P.M. New York time on the Servicer Remittance Date), the Trustee
shall, at the direction of the NIMS Insurer, terminate all of the rights and
obligations of the Servicer under this Agreement, to the extent permitted by
law, and in and to the Mortgage Loans and the proceeds thereof and the Trustee,
or a successor servicer appointed in accordance with Section 7.02, shall
immediately make such Advance and assume, pursuant to Section 7.02, the duties
of a successor Servicer and (y) in the case of (i)(B), (ii), (iii) or (iv)
above, the Trustee shall, at the direction of the NIMS Insurer or the Holders
of
each Class of Regular Certificates evidencing Percentage Interests aggregating
not less than 51%, by notice then given in writing to the Servicer (and to
the
Trustee if given by the NIMS Insurer or the Holders of Certificates), terminate
all of the rights and obligations of the Servicer as servicer under this
Agreement. Any such notice to the Servicer shall also be given to each Rating
Agency, the Depositor and the Servicer. On or after the receipt by the Servicer
(and by the Trustee if such notice is given by the Holders) of such written
notice, all authority and power of the Servicer under this Agreement, whether
with respect to the Certificates or the Mortgage Loans or otherwise, shall
pass
to and be vested in the Trustee pursuant to and under this Section; and, without
limitation, and the Trustee is hereby authorized and empowered to execute and
deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, 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 of each Mortgage
Loan and related documents or otherwise. The Servicer agrees to cooperate with
the Trustee (or the applicable successor Servicer) in effecting the termination
of the responsibilities and rights of the Servicer hereunder, including, without
limitation, the delivery to the Trustee of all documents and records requested
by it to enable it to assume the Servicer’s functions under this Agreement
within ten Business Days subsequent to such notice, the transfer within one
Business Day subsequent to such notice to the Trustee (or the applicable
successor Servicer) for the administration by it of all cash amounts that shall
at the time be held by the Servicer and to be deposited by it in the Collection
Account, the Distribution Account, any REO Account or any Servicing Account
or
that have been deposited by the Servicer in such accounts or thereafter received
by the Servicer with respect to the Mortgage Loans or any REO Property received
by the Servicer. All reasonable costs and expenses (including attorneys’ fees)
incurred in connection with transferring the Mortgage Files to the successor
Servicer and amending this Agreement to reflect such succession as Servicer
pursuant to this Section shall be paid by the predecessor Servicer (or if the
predecessor Servicer is the Trustee, the initial Servicer) upon presentation
of
reasonable documentation of such costs and expenses and to the extent not paid
by the Servicer, by the Trust.
| SECTION 7.02 |
Trustee
to Act; Appointment of Successor.
|
(a) From
the
time the Servicer (and the Trustee, if notice is sent by the Holders) receives
a
notice of termination pursuant to Section 7.01 or 6.04, the Trustee (or such
other successor Servicer as is approved in accordance with this Agreement)
shall
be 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
shall be subject to all the responsibilities, duties and liabilities relating
thereto placed on the Servicer by the terms and provisions hereof arising on
and
after its succession. Notwithstanding the foregoing, the parties hereto agree
that the Trustee, in its capacity as successor Servicer, immediately will assume
all of the obligations of the Servicer to make advances. Notwithstanding the
foregoing, the Trustee, in its capacity as successor Servicer, shall not be
responsible for the lack of information and/or documents that it cannot obtain
through reasonable efforts. It is understood and agreed by the parties hereto
that there will be a period of transition (not to exceed 90 days) before the
transition of servicing obligations is fully effective. As compensation
therefor, the Trustee (or such other successor Servicer) shall be entitled
to
such compensation as the Servicer would have been entitled to hereunder if
no
such notice of termination had been given. Notwithstanding the above, (i) if
the
Trustee is unwilling to act as successor Servicer or (ii) if the Trustee is
legally unable so to act, the Trustee shall appoint or petition a court of
competent jurisdiction to appoint, any established housing and home finance
institution, bank or other mortgage loan or home equity loan servicer having
a
net worth of not less than $50,000,000 as the successor to the Servicer
hereunder in the assumption of all or any part of the responsibilities, duties
or liabilities of the Servicer hereunder; provided, that the appointment of
any
such successor Servicer shall be approved by the NIMS Insurer (such approval
not
to be unreasonably withheld), as evidenced by the prior written consent of
the
NIMS Insurer, and will not result in the qualification, reduction or withdrawal
of the ratings assigned to the Certificates by the Rating Agencies as evidenced
by a letter to such effect from the Rating Agencies. Pending appointment of
a
successor to the Servicer hereunder, the Trustee shall act in such capacity
as
hereinabove provided. In connection with such appointment and assumption, the
successor shall be entitled to receive compensation out of payments on Mortgage
Loans in an amount equal to the compensation which the Servicer would otherwise
have received pursuant to Section 3.18 (or such other compensation as the
Trustee and such successor shall agree, not to exceed the Servicing Fee). The
appointment of a successor Servicer shall not affect any liability of the
predecessor Servicer which may have arisen under this Agreement prior to its
termination as Servicer to pay any deductible under an insurance policy pursuant
to Section 3.14, to reimburse the Trustee pursuant to Section 3.06 or to
indemnify the Trustee or the NIMS Insurer pursuant to Section 8.05(c)), nor
shall any successor Servicer be liable for any acts or omissions of the
predecessor Servicer or for any breach by such Servicer of any of its
representations or warranties contained herein or in any related document or
agreement. The Trustee and such successor shall take such action, consistent
with this Agreement, as shall be necessary to effectuate any such succession.
All Servicing Transfer Costs shall be paid by the predecessor Servicer upon
presentation of reasonable documentation of such costs, and if such predecessor
Servicer 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).
(b) Any
successor to the Servicer, including the Trustee, shall during the term of
its
service as servicer continue to service and administer the Mortgage Loans for
the benefit of Certificateholders, and maintain in force a policy or policies
of
insurance covering errors and omissions in the performance of its obligations
as
Servicer hereunder and a fidelity bond in respect of its officers, employees
and
agents to the same extent as the Servicer is so required pursuant to Section
3.14.
(c) In
connection with the resignation, removal or expiration of the term of the
Servicer hereunder, or in connection with the resignation or removal of any
successor to the Servicer (or any other successor to the Servicer appointed
hereunder) acting as successor Servicer hereunder, either (i) the successor
Servicer, (or any other successor to the Servicer appointed hereunder) acting
as
successor Servicer hereunder, shall represent and warrant that it is a member
of
MERS in good standing and shall agree to comply in all material respects with
the rules and procedures of MERS in connection with the servicing of the
Mortgage Loans that are registered with MERS, in which case the predecessor
Servicer shall cooperate with the successor Servicer in causing MERS to revise
its records to reflect the transfer of servicing to the successor Servicer
as
necessary under MERS’ rules and regulations or (ii) the predecessor Servicer
shall cooperate with the successor Servicer in causing MERS to execute and
deliver an assignment of Mortgage in recordable form to transfer the Mortgage
from MERS to the Trustee and to execute and deliver such other notices,
documents and other instruments as may be necessary or desirable to effect
a
transfer of such Mortgage Loan or servicing of such Mortgage Loan on the MERS®
System to the successor Servicer. The predecessor Servicer shall file or cause
to be filed any such assignment in the appropriate recording office. The
predecessor Servicer shall bear any and all fees of MERS, costs of preparing
any
assignments of Mortgage, and fees and costs of filing any assignments of
Mortgage that may be required under this paragraph.
| SECTION 7.03 |
Waiver
of Defaults.
|
The
Majority Certificateholders may, on behalf of all Certificateholders and with
the consent of the NIMS Insurer, waive any events permitting removal of the
Servicer as servicer pursuant to this Article VII, provided, however, that
the
Majority Certificateholders may not waive a default in making a required
distribution on a Certificate without the consent of the Holder of such
Certificate and the consent of the NIMS Insurer. Upon any waiver of a past
default, such default shall cease to exist and any Servicer Event of Termination
arising therefrom shall be deemed to have been remedied for every purpose of
this Agreement. No such waiver shall extend to any subsequent or other default
or impair any right consequent thereto except to the extent expressly so waived.
Notice of any such waiver shall be given by the Trustee to the Rating Agencies
and the NIMS Insurer.
| SECTION 7.04 |
Notification
to Certificateholders.
|
(a) Upon
any
termination or appointment of a successor to the Servicer pursuant to this
Article VII or Section 6.04, the Trustee shall give prompt written notice
thereof to the Certificateholders at their respective addresses appearing in
the
Certificate Register, the NIMS Insurer and each Rating Agency.
(b) No
later
than 60 days after the occurrence of any event which constitutes or which,
with
notice or a lapse of time or both, would constitute a Servicer Event of
Termination for five Business 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 Certificateholders and to the NIMS Insurer notice of such occurrence
unless such default or Servicer Event of Termination shall have been waived
or
cured.
| SECTION 7.05 |
Survivability
of Servicer Liabilities.
|
Notwithstanding
anything herein to the contrary, upon termination of the Servicer hereunder,
any
liabilities of the Servicer which accrued prior to such termination shall
survive such termination.
ARTICLE
VIII
THE
TRUSTEE
| SECTION 8.01 |
Duties
of Trustee.
|
The
Trustee, prior to the occurrence of a Servicer Event of Termination and after
the curing of all Servicer Events of Termination which may have occurred,
undertakes to perform such duties and only such duties as are specifically
set
forth in this Agreement. If a Servicer Event of Termination has occurred (which
has not been cured) of which a Responsible Officer has knowledge, 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 man would
exercise or use under the circumstances in the conduct of his own
affairs.
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 to the
requirements of this Agreement; provided, however, that the Trustee will not
be
responsible for the accuracy or content of any such resolutions, certificates,
statements, opinions, reports, documents or other instruments. If any such
instrument is found not to conform 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 the
Trustee’s satisfaction, the Trustee will provide notice thereof to the
Certificateholders and the NIMS Insurer.
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 Termination, and after the curing of
all
such Servicer Events of Termination 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 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 and conforming to the requirements of this Agreement;
(ii) the
Trustee shall not be personally liable for an error of judgment made in good
faith by a Responsible Officer of the Trustee, unless it shall be proved that
the Trustee was negligent in ascertaining the pertinent facts;
(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 NIMS Insurer or the Majority Certificateholders relating to
the
time, method and place of conducting any proceeding for any remedy available
to
the Trustee, or exercising or omitting to exercise any trust or power conferred
upon the Trustee, under this Agreement; and
(iv) the
Trustee shall not be charged with knowledge of any failure by the Servicer
to
comply with the obligations of the Servicer referred to in clauses (i) and
(ii)
of Section 7.01(a) or of the existence of any Servicer Event of Termination
unless a Responsible Officer of the Trustee at the Corporate Trust Office
obtains actual knowledge of such failure or the Trustee receives written notice
of such failure from the Depositor, the Servicer, the NIMS Insurer or the
Majority Certificateholders.
The
Trustee shall not be required to expend or risk its own funds or otherwise
incur
financial liability in the performance of any of its duties hereunder, or in
the
exercise of any of its rights or powers, if there is reasonable ground for
believing that the repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it, and none of the provisions
contained in this Agreement shall in any event require the Trustee to perform,
or be responsible for the manner of performance of, any of the obligations
of
the Servicer under this Agreement, except during such time, if any, as the
Trustee shall be the successor to, and be vested with the rights, duties, powers
and privileges of, the Servicer in accordance with the terms of this
Agreement.
| SECTION 8.02 |
Certain
Matters Affecting the Trustee.
|
(a) Except
as
otherwise provided in Section 8.01:
(i) the
Trustee may request and rely upon, and shall be protected in acting or
refraining from acting upon, any resolution, Officers’ Certificate, certificate
of auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond or other paper or document
reasonably believed by it to be genuine and to have been signed or presented
by
the proper party or parties, and the manner of obtaining consents and of
evidencing the authorization of the execution thereof by Certificateholders
shall be subject to such reasonable regulations as the Trustee may
prescribe;
(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 be under no obligation to exercise any of the rights 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 or the NIMS Insurer, pursuant to the provisions
of this Agreement, unless such Certificateholders or the NIMS Insurer, as
applicable shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which may be incurred therein or
thereby; the right of the Trustee to perform any discretionary act enumerated
in
this Agreement shall not be construed as a duty, and the Trustee shall not
be
answerable for other than its negligence or willful misconduct in the
performance of any such act;
(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 Termination and after the curing of all
Servicer Events of Termination 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 documents, unless
requested in writing to do so by the NIMS Insurer or the Majority
Certificateholder; 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 the security afforded to it by the terms
of
this Agreement, the Trustee may require reasonable indemnity against such cost,
expense or liability as a condition to such proceeding. The reasonable expense
of every such examination shall be paid by the Servicer or the NIMS Insurer
(if
requested by the NIMS Insurer) or, if paid by the Trustee, shall be reimbursed
by the Servicer or the NIMS Insurer (if requested by the NIMS Insurer) upon
demand and, if not reimbursed by the Servicer or the NIMS Insurer (if requested
by the NIMS Insurer), shall be reimbursed by the Trust. Nothing in this clause
(v) shall derogate from the obligation of the Servicer to observe any applicable
law prohibiting disclosure of information regarding the Mortgagors;
(vi) the
Trustee shall not be accountable, shall have no liability and makes no
representation as to any acts or omissions hereunder of the Servicer until
such
time as the Trustee may be required to act as Servicer pursuant to Section
7.02
and thereupon only for the acts or omissions of the Trustee as successor
Servicer;
(vii) the
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys, custodians
or
nominees;
(viii) the
right
of the Trustee to perform any discretionary act enumerated in this Agreement
shall not be construed as a duty, and the Trustee shall not be answerable for
other than its negligence or willful misconduct in the performance of such
act;
(ix) the
Trustee shall not be personally liable for any loss resulting from the
investment of funds held in the Collection Account or the REO Account made
at
the direction of the Servicer pursuant to Section 3.12; and
(x) the
Trustee or its Affiliates are permitted to receive 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, (ii) using
Affiliates to effect transactions in certain Permitted Investments and (iii)
effecting transactions in certain Permitted Investments. Such compensation
shall
not be considered an amount that is reimbursable or payable pursuant to Section
3.11.
In
order
to comply with its duties under the U.S. Patriot Act, the Trustee shall obtain
and verify certain information and documentation from the other parties hereto,
including, but not limited to, such parties’ name, address and other identifying
information.
In
order
to comply with laws, rules, regulations and executive orders in effect from
time
to time applicable to banking institutions, including those relating to the
funding of terrorist activities and money laundering (“Applicable Law”), the
Trustee is required to obtain, verify and record certain information relating
to
individuals and entities which maintain a business relationship with the
Trustee. Accordingly, each of the parties agrees to provide to the Trustee
upon
its requiest from time to time such identifying information and documentation
as
may be available for such party in oder to enable the Trustee to comply with
Applicable Law.
| SECTION 8.03 |
Trustee
Not Liable for Certificates or Mortgage
Loans.
|
The
recitals contained herein and in the Certificates (other than the authentication
of the Trustee on the Certificates) shall be taken as the statements of the
Depositor, and the Trustee assumes no responsibility for the correctness of
the
same. The Trustee makes no representations as to the validity or sufficiency
of
this Agreement or of the Certificates (other than the signature and
authentication of the Trustee on the Certificates) or of any Mortgage Loan
or
related document or MERS or the MERS System other than with respect to the
Trustee’s execution and authentication of the Certificates. The Trustee shall
not be accountable for the use or application by the Servicer, or for the use
or
application of any funds paid to the Servicer in respect of the Mortgage Loans
or deposited in or withdrawn from the Collection Account by the Servicer. The
Trustee shall at no time have any responsibility or liability for or with
respect to the legality, validity and enforceability of any Mortgage or any
Mortgage Loan, or the perfection and priority of any Mortgage or the maintenance
of any such perfection and priority, or for or with respect to the sufficiency
of the Trust or its ability to generate the payments to be distributed to
Certificateholders under this Agreement, including, without limitation: the
existence, condition and ownership of any Mortgaged Property; the existence
and
enforceability of any hazard insurance thereon (other than if the Trustee shall
assume the duties of the Servicer pursuant to Section 7.02); the validity of
the
assignment of any Mortgage Loan to the Trustee or of any intervening assignment;
the completeness of any Mortgage Loan; the performance or enforcement of any
Mortgage Loan (other than if the Trustee shall assume the duties of the Servicer
pursuant to Section 7.02); the compliance by the Depositor, the Originator
or
the Servicer with any warranty or representation made under this Agreement
or in
any related document or the accuracy of any such warranty or representation
prior to the Trustee’s receipt of notice or other discovery of any
non-compliance therewith or any breach thereof; any investment of monies by
or
at the direction of the Servicer or any loss resulting therefrom, it being
understood that the Trustee shall remain responsible for any Trust property
that
it may hold in its individual capacity; the acts or omissions of any of the
Servicer (other than if the Trustee shall assume the duties of the Servicer
pursuant to Section 7.02), any Sub-Servicer or any Mortgagor; any action of
the
Servicer (other than if the Trustee shall assume the duties of the Servicer
pursuant to Section 7.02), or any Sub- Servicer taken in the name of the
Trustee; the failure of the Servicer or any Sub-Servicer to act or perform
any
duties required of it as agent of the Trustee hereunder; or any action by the
Trustee taken at the instruction of the Servicer (other than if the Trustee
shall assume the duties of the Servicer pursuant to Section 7.02); provided,
however, that the foregoing shall not relieve the Trustee of its obligation
to
perform its duties under this Agreement, including, without limitation, the
Trustee’s duty to review the Mortgage Files pursuant to Section 2.01. The
Trustee shall have no responsibility for filing any financing or continuation
statement in any public office at any time or to otherwise perfect or maintain
the perfection of any security interest or lien granted to it hereunder (unless
the Trustee shall have become the successor Servicer).
| SECTION 8.04 |
Trustee
May Own Certificates.
|
The
Trustee in its individual or any other capacity may become the owner or pledgee
of Certificates with the same rights as it would have if it were not Trustee
and
may transact any banking and trust business with the Originator, the Servicer,
the Depositor or their Affiliates.
| SECTION 8.05 |
Trustee
Compensation and Expenses.
|
(a) On
each
Distribution Date, prior to making any distributions to Certificateholders,
the
Trustee shall withdraw from the Distribution Account and pay to itself the
Trustee Compensation payable on such Distribution Date consisting of all income
earned on amounts on deposit in the Distribution Account. The Trustee shall
deposit in the Distribution Account the amount of any loss of principal incurred
in respect of any Permitted Investment made with funds in the Distribution
Account immediately upon realization of such loss.
(b) 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 and disbursements 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
arising out of or in connection with the acceptance or administration of its
obligations and duties under this 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 Trustee is indemnified under Section 8.05(b)
or (ii) any loss, liability or expense incurred by reason of willful
misfeasance, bad faith or negligence of the Trustee in
the
performance of its duties hereunder or by reason of the Trustee’s reckless
disregard of obligations and duties hereunder
or as a
result of a breach of the Trustee’s obligations under Article X hereof. Any
amounts payable to the Trustee, or any director, officer, employee or agent
of
the Trustee, in respect of the indemnification provided by this Section 8.05(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
Distribution Account at any time. The foregoing indemnity shall survive the
resignation or removal of the Trustee.
(c) The
Servicer agrees to indemnify the Trustee, the NIMS Insurer, the Custodian or
any
director, officer, employee or agent of the Trustee, the NIMS Insurer or
Custodian from, and hold it harmless against, any loss, liability or expense
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 and the Servicer for
actions prior to such resignation or removal. 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.
| SECTION 8.06 |
Eligibility
Requirements for Trustee.
|
The
Trustee hereunder shall at all times be an entity duly organized and validly
existing under the laws of the United States of America or any state thereof,
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 entity publishes reports
of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section 8.06, the combined capital and surplus of such entity shall be deemed
to
be its combined capital and surplus as set forth in its most recent report
of
condition so published. The principal office of the Trustee (other than the
initial Trustee) shall be in a state with respect to which an Opinion of Counsel
has been delivered to such Trustee and the NIMS Insurer at the time such Trustee
is appointed Trustee to the effect that the Trust will not be a taxable entity
under the laws of such state. In case at any time the Trustee shall cease to
be
eligible in accordance with the provisions of this Section 8.06, the Trustee
shall resign immediately in the manner and with the effect specified in Section
8.07.
| SECTION 8.07 |
Resignation
or Removal of Trustee.
|
The
Trustee may at any time resign and be discharged from the trusts hereby created
by giving written notice thereof to the NIMS Insurer, the Depositor, the
Servicer and each Rating Agency. Upon receiving such notice of resignation,
the
Depositor shall promptly appoint a successor Trustee acceptable to the NIMS
Insurer by written instrument, in duplicate, one copy of which instrument shall
be delivered to the resigning Trustee and one copy to the successor Trustee.
If
no successor Trustee shall have been so appointed and having accepted
appointment within 30 days after the giving of such notice of resignation,
the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If
at any
time the Trustee shall cease to be eligible in accordance with the provisions
of
Section 8.06 and shall fail to resign after written request therefor by the
Depositor or the NIMS Insurer if at any time the Trustee shall be legally unable
to act, or shall be adjudged a 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, the Servicer
or the NIMS Insurer may remove the Trustee. If the Depositor, the Servicer
or
the NIMS Insurer removes the Trustee under the authority of the immediately
preceding sentence, the Depositor, with the consent of the NIMS Insurer, shall
promptly appoint a successor Trustee by written instrument, in duplicate, one
copy of which instrument shall be delivered to the Trustee so removed and one
copy to the successor trustee.
The
Majority Certificateholders (or the NIMS Insurer upon the failure of the Trustee
to perform its obligations hereunder) may at any time remove the Trustee by
written instrument or instruments delivered to the Servicer, the Depositor
and
the Trustee; the Depositor shall thereupon use its best efforts to appoint
a
successor trustee acceptable to the NIMS Insurer in accordance with this
Section.
Any
resignation or removal of the Trustee and appointment of a successor Trustee
pursuant to any of the provisions of this Section 8.07 shall not become
effective until acceptance of appointment by the successor Trustee as provided
in Section 8.08.
| SECTION 8.08 |
Successor
Trustee.
|
Any
successor Trustee appointed as provided in Section 8.07 shall execute,
acknowledge and deliver to the NIMS Insurer, the Depositor, the Servicer 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 like effect as if originally
named as Trustee. The Depositor, the Servicer and the predecessor Trustee shall
execute and deliver such instruments and do such other things as may reasonably
be required for 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 8.08
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 the Regular 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
8.08, the successor Trustee shall mail notice of the appointment of a successor
Trustee hereunder to all Holders of Certificates at their addresses as shown
in
the Certificate Register and to each Rating Agency.
| SECTION 8.09 |
Merger
or Consolidation of Trustee.
|
Any
entity into which the Trustee may be merged or converted or with which it may
be
consolidated, or any entity resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any entity succeeding
to
the business of the Trustee, shall be the successor of the Trustee hereunder,
provided such entity shall be eligible under the provisions of Section 8.06
and
8.08, 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.
|
Notwithstanding
any other provisions of this Agreement, at any time, for the purpose of meeting
any legal requirements of any jurisdiction in which any part of the Trust or
any
Mortgaged Property may at the time be located, the Depositor 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 and the
NIMS
Insurer to act as co-trustee or co-trustees, jointly with the Trustee, or
separate trustee or separate trustees, of all or any part of the Trust, and
to
vest in such Person or Persons, in such capacity and for the benefit of the
Certificateholders, such title to the Trust, 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 and the NIMS Insurer. If the Servicer and
the
NIMS Insurer shall not have joined in such appointment within 15 days after
the
receipt by it of a request so to do, or in the case a Servicer Event of
Termination 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, and no notice to Certificateholders of the appointment of any
co-trustee or separate trustee shall be required under Section 8.08. The
Servicer shall be responsible for the fees of any co-trustee or separate trustee
appointed hereunder.
Every
separate trustee and co-trustee shall, to the extent permitted by law, be
appointed and act subject to the following provisions and
conditions:
(i) 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 (it being understood that such
separate trustee or co-trustee is not authorized to act separately without
the
Trustee joining in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed (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 the
Trust or any portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at the
direction of the Trustee;
(ii) no
trustee hereunder shall be held personally liable by reason of any act or
omission of any other trustee hereunder; and
(iii) the
Servicer and the Trustee, acting jointly and with the consent of the NIMS
Insurer, may at any time accept the resignation of or remove any separate
trustee or co-trustee except that following the occurrence of a Servicer Event
of Termination, the Trustee acting alone may accept the resignation or remove
any separate trustee or co-trustee.
Any
notice, request or other writing given to the Trustee shall be deemed to have
been given to each of the then separate trustees and co-trustees, as effectively
as if given to each of them. Every instrument appointing any separate trustee
or
co-trustee shall refer to this Agreement and the conditions of this Article
VIII. Each separate trustee and co-trustee, upon its acceptance of the trusts
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, the Servicer and the NIMS Insurer.
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 |
Limitation
of Liability.
|
The
Certificates are executed by the Trustee, not in its individual capacity but
solely as Trustee of the Trust, in the exercise of the powers and authority
conferred and vested in it by the Trust Agreement. Each of the undertakings
and
agreements made on the part of the Trustee in the Certificates is made and
intended not as a personal undertaking or agreement by the Trustee but is made
and intended for the purpose of binding only the Trust.
| SECTION 8.12 |
Trustee
May Enforce Claims Without Possession of
Certificates.
|
(a) All
rights of action and claims under this Agreement or the Certificates may be
prosecuted and enforced by the Trustee without the possession of any of the
Certificates or the production thereof in any proceeding relating thereto,
and
such proceeding instituted by the Trustee shall be brought in its own name
or in
its capacity as Trustee for the benefit of all Holders of such Certificates,
subject to the provisions of this Agreement. Any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursement and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Certificateholders in respect of which such judgment
has
been recovered.
(b) The
Trustee shall afford the Originator, the Depositor, the Servicer, the NIMS
Insurer and each Certificateholder upon reasonable prior notice during normal
business hours, access to all records maintained by the Trustee in respect
of
its duties hereunder and access to officers of the Trustee responsible for
performing such duties. Upon request, the Trustee shall furnish the Depositor,
the Servicer, the NIMS Insurer and any requesting Certificateholder with its
most recent financial statements. The Trustee shall cooperate fully with the
Originator, the Servicer, the NIM Insurer, the Depositor and such
Certificateholder and shall make available to the Originator, the Servicer,
the
Depositor, the NIMS Insurer and such Certificateholder for review and copying
such books, documents or records as may be requested with respect to the
Trustee’s duties hereunder. The Originator, the Depositor, the Servicer and the
Certificateholders shall not have any responsibility or liability for any action
or failure to act by the Trustee and are not obligated to supervise the
performance of the Trustee under this Agreement or otherwise.
| SECTION 8.13 |
Suits
for Enforcement.
|
In
case a
Servicer Event of Termination or other default by the Servicer or the Depositor
hereunder shall occur and be continuing, the Trustee, shall, at the direction
of
the Majority Certificateholders or the NIMS Insurer, or may, proceed to protect
and enforce its rights and the rights of the Certificateholders or the NIMS
Insurer under this Agreement by a suit, action or proceeding in equity or at
law
or otherwise, whether for the specific performance of any covenant or agreement
contained in this Agreement or in aid of the execution of any power granted
in
this Agreement or for the enforcement of any other legal, equitable or other
remedy, as the Trustee, being advised by counsel, and subject to the foregoing,
shall deem most effectual to protect and enforce any of the rights of the
Trustee, the NIMS Insurer and the Certificateholders.
| SECTION 8.14 |
Waiver
of Bond Requirement.
|
The
Trustee shall be relieved of, and each Certificateholder hereby waives, any
requirement of any jurisdiction in which the Trust, or any part thereof, may
be
located that the Trustee post a bond or other surety with any court, agency
or
body whatsoever.
| SECTION 8.15 |
Waiver
of Inventory, Accounting and Appraisal
Requirement.
|
The
Trustee shall be relieved of, and each Certificateholder hereby waives, any
requirement of any jurisdiction in which the Trust, or any part thereof, may
be
located that the Trustee file any inventory, accounting or appraisal of the
Trust with any court, agency or body at any time or in any manner
whatsoever.
| SECTION 8.16 |
[Reserved].
|
ARTICLE
IX
REMIC
ADMINISTRATION
| SECTION 9.01 |
REMIC
Administration.
|
(a) REMIC
elections as set forth in the Preliminary Statement shall be made by the Trustee
on Form 1066 or other appropriate federal tax or information return for the
taxable year ending on the last day of the calendar year in which the
Certificates are issued. The regular interests and residual interest in each
REMIC shall be as designated in the Preliminary Statement. For the purposes
of
the REMIC elections in respect of the Trust Fund, (i) the REMIC 1 Regular
Interests will represent the “regular interests” in REMIC 1, the Class R-1
Interest will constitute the sole class of “residual interests” in REMIC 1, (ii)
the REMIC 2 Regular Interests will represent the “regular interests” in REMIC 2,
the Class R-2 Interest will constitute the sole class of “residual interests” in
REMIC 2, (iii) the Class A Certificates, the Class M Certificates and the Class
B Certificates (exclusive of any right to receive distributions from the Net
WAC
Rate Carryover Reserve Account in respect of the Net WAC Rate Carryover Amount
or the Swap Account or any obligation to make payments to the Swap Account),
the
Class C Interest, the Class IO Interest and the Class P Interest shall be
designated as the “regular interests” in REMIC 3 and the Class R-3 Interest will
constitute the sole class of “residual interests” in REMIC 3, (iv) the Class C
Certificates (exclusive of any obligation to make payments to the Net WAC Rate
Carryover Reserve Account in respect of the Net WAC Rate Carryover Amount)
will
represent ownership of “regular interests” in REMIC 4 and the Class R-4 Interest
will constitute the sole class of “residual interests” in REMIC 4, (v) the Class
P Certificates will represent ownership of “regular interests” in REMIC 5 and
the Class R-5 Interest will constitute the sole class of “residual interests” in
REMIC 5, (vi) the REMIC 6 Regular Interest SWAP IO will represent ownership
of
“regular interests” in REMIC 6 and the Class R-6 Interest will constitute the
sole class of “residual interests” in REMIC 6, (vii) the Class R Certificates
will evidence ownership of the Class R-1 Interest, Class R-2 Interest and Class
R-3 Interest and (viii) the Class R-X Certificates will evidence ownership
of
the Class R-4 Interest, the Class R-5 Interest and the Class R-6 Interest.
The
Securities Administrator and the Trustee shall not permit the creation of any
“interests” (within the meaning of Section 860G of the Code) in any REMIC
created hereunder other than (a) the REMIC 1 Regular Interests, the REMIC 2
Regular Interests, the REMIC 3 Regular Interests, the REMIC 4 Regular Interests,
the REMIC 5 Regular Interests or the REMIC 6 Regular Interests, the ownership
of
which is represented by the Class A Certificates, the Class M Certificates,
the
Class B Certificates, the REMIC 6 Regular Interest SWAP IO, the Class C
Certificates and the Class P Certificates and (b) the Class R-1 Interest, the
Class R-2 Interest, the Class R-3 Interest, the Class R-4 Interest, the Class
R-5 Interest and the Class R-6 Interest. The Securities Administrator will
apply
for an Employee Identification Number from the IRS via form SS-4 or any other
acceptable method for each Trust REMIC
(b) The
Closing Date is hereby designated as the “Startup Day” of each REMIC within the
meaning of section 860G(a)(9) of the Code.
(c) The
Trustee shall pay any and all expenses relating to any tax audit of any REMIC
(including, but not limited to, any professional fees or any administrative
or
judicial proceedings with respect to any Trust REMIC that involve the Internal
Revenue Service or state tax authorities), including the expense of obtaining
any tax related Opinion of Counsel. The Trustee shall be entitled to
reimbursement of expenses incurred pursuant to this Section 9.01(c) to the
extent provided in Section 8.05.
(d) The
Trustee shall prepare, sign and file, all of the REMICs’ federal and state tax
and information returns (including Form 8811) as the direct representative
each
REMIC created hereunder. The expenses of preparing and filing such returns
shall
be borne by the Trustee.
(e) The
Holder of the Class R Certificate at any time holding the largest Percentage
Interest thereof shall be the “tax matters person” as defined in the REMIC
Provisions (the related “Tax Matters Person”) with respect to REMIC 1, REMIC 2
and REMIC 3 and shall act as Tax Matters Person for REMIC 1, REMIC 2 and REMIC
3. The Holder of the Class R-X Certificate at any time holding the largest
Percentage Interest thereof shall be the Tax Matters Person with respect to
REMIC 4, REMIC 5 and REMIC 6 and shall act as Tax Matters Person for REMIC
4,
REMIC 5 and REMIC 6. The Trustee, as agent for the Tax Matters Person, shall
perform on behalf of each 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, if required by the Code,
the
REMIC Provisions, or other such guidance, the Trustee, as agent for the Tax
Matters Person, shall provide (i) to the Treasury or other governmental
authority such information as is necessary for the application of any tax
relating to the transfer of a Residual Certificate to any disqualified person
or
organization and (ii) to the Certificateholders such information or reports
as
are required by the Code or REMIC Provisions. The Trustee, as agent for the
Tax
Matters Person, shall represent each REMIC in any administrative or judicial
proceedings relating to an examination or audit by any governmental taxing
authority, request an administrative adjustment as to any taxable year of any
REMIC, enter into settlement agreements with any government taxing agency,
extend any statute of limitations relating to any item of any REMIC and
otherwise act on behalf of any REMIC in relation to any tax matter involving
the
Trust.
(f) The
Trustee, the Servicer and the Holders of Certificates shall take any action
or
cause the REMIC to take any action necessary to create or maintain the status
of
each REMIC as a REMIC under the REMIC Provisions and shall assist each other
as
necessary to create or maintain such status. Neither the Trustee, the Servicer
nor the Holder of any Residual Certificate shall take any action, cause any
REMIC created hereunder 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 such REMIC as a REMIC or
(ii)
result in the imposition of a tax upon such REMIC (including but not limited
to
the tax on prohibited transactions as defined in Code Section 860F(a)(2) and
the
tax on prohibited contributions set forth on Section 860G(d) of the Code)
(either such event, an “Adverse REMIC Event”) unless the Trustee, the NIMS
Insurer and the Servicer have received an Opinion of Counsel (at the expense
of
the party seeking to take such action) to the effect that the contemplated
action will not endanger such status or result in the imposition of such a
tax.
In addition, prior to taking any action with respect to any REMIC created
hereunder or the assets therein, or causing such REMIC to take any action,
which
is not expressly permitted under the terms of this Agreement, any Holder of
a
Residual Certificate will consult with the Trustee, the NIMS Insurer and the
Servicer, or their respective designees, in writing, with respect to whether
such action could cause an Adverse REMIC Event to occur with respect to any
REMIC, and no such Person shall take any such action or cause any REMIC to
take
any such action as to which the Trustee, the NIMS Insurer or the Servicer has
advised it in writing that an Adverse REMIC Event could occur.
(g) Each
Holder of a Residual Certificate shall pay when due any and all taxes imposed
on
each REMIC created hereunder by federal or state governmental authorities.
To
the extent that such Trust taxes are not paid by a Residual Certificateholder,
the Trustee shall pay any remaining REMIC taxes out of current or future amounts
otherwise distributable to the Holder of the Residual Certificate in the REMICs
or, if no such amounts are available, out of other amounts held in the
Distribution Account, and shall reduce amounts otherwise payable to Holders
of
regular interests in the related REMIC. Subject to the foregoing, in the event
that a REMIC incurs a state or local tax, including franchise taxes, as a result
of a determination that such REMIC is domiciled in the State of California
for
state tax purposes by virtue of the location of the Servicer, the Servicer
agrees to pay on behalf of such REMIC when due, any and all state and local
taxes imposed as a result of such a determination, in the event that the Holder
of the related Residual Certificate fails to pay such taxes, if any, when
imposed.
(h) The
Trustee, as agent for the Tax Matters Person, shall, for federal income tax
purposes, maintain books and records with respect to each REMIC created
hereunder on a calendar year and on an accrual basis.
(i) No
additional contributions of assets shall be made to any REMIC created hereunder,
except as expressly provided in this Agreement with respect to eligible
substitute mortgage loans.
(j) Neither
the Trustee nor the Servicer shall enter into any arrangement by which any
REMIC
created hereunder will receive a fee or other compensation for
services.
(k) On
or
before April 15 of each calendar year beginning in 2007, the Servicer shall
deliver to the NIMS Insurer, the Trustee and each Rating Agency an Officers’
Certificate stating the Servicer’s compliance with the provisions of this
Section 9.01.
(l) The
Trustee will apply for an Employee Identification Number from the Internal
Revenue Service via a Form SS-4 or other acceptable method for all tax entities
and shall complete the Form 8811.
| SECTION 9.02 |
Prohibited
Transactions and Activities.
|
Neither
the Depositor, the Servicer nor the Trustee shall sell, dispose of, or
substitute for any of the Mortgage Loans, except in a disposition pursuant
to
(i) the foreclosure of a Mortgage Loan, (ii) the bankruptcy of the Trust Fund,
(iii) the termination of any REMIC created hereunder pursuant to Article X
of
this Agreement, (iv) a substitution pursuant to Article II of this Agreement
or
(v) a repurchase of Mortgage Loans pursuant to Article II of this Agreement,
nor
acquire any assets for any REMIC, nor sell or dispose of any investments in
the
Distribution Account for gain, nor accept any contributions to either REMIC
after the Closing Date, unless it and the NIMS Insurer have received an Opinion
of Counsel (at the expense of the party causing such sale, disposition, or
substitution) that such disposition, acquisition, substitution, or acceptance
will not (a) affect adversely the status of any REMIC created hereunder as
a
REMIC or of the interests therein other than the Residual Certificates as the
regular interests therein, (b) affect the distribution of interest or principal
on the Certificates, (c) result in the encumbrance of the assets transferred
or
assigned to the Trust Fund (except pursuant to the provisions of this Agreement)
or (d) cause any REMIC created hereunder to be subject to a tax on prohibited
transactions or prohibited contributions pursuant to the REMIC
Provisions.
| SECTION 9.03 |
Indemnification
with Respect to Certain Taxes and Loss of REMIC
Status.
|
(a) In
the
event that any REMIC fails to qualify as a REMIC, loses its status as a REMIC,
or incurs federal, state or local taxes as a result of a prohibited transaction
or prohibited contribution under the REMIC Provisions due to the negligent
performance by the Servicer of its duties and obligations set forth herein,
the
Servicer shall indemnify the NIMS Insurer, the Trustee and the Trust Fund
against any and all losses, claims, damages, liabilities or expenses (“Losses”)
resulting from such negligence; provided, however, that the Servicer shall
not
be liable for any such Losses attributable to the action or inaction of the
Trustee, the Depositor or the Holder of such Residual Certificate, as
applicable, nor for any such Losses resulting from misinformation provided
by
the Holder of such Residual Certificate on which the Servicer has relied. The
foregoing shall not be deemed to limit or restrict the rights and remedies
of
the Holder of such Residual Certificate now or hereafter existing at law or
in
equity. Notwithstanding the foregoing, however, in no event shall the Servicer
have any liability (1) for any action or omission that is taken in accordance
with and in compliance with the express terms of, or which is expressly
permitted by the terms of, this Agreement, (2) for any Losses other than arising
out of a negligent performance by the Servicer of its duties and obligations
set
forth herein, and (3) for any special or consequential damages to
Certificateholders (in addition to payment of principal and interest on the
Certificates).
(b) In
the
event that any REMIC fails to qualify as a REMIC, loses its status as a REMIC,
or incurs federal, state or local taxes as a result of a prohibited transaction
or prohibited contribution under the REMIC Provisions due to the negligent
performance by the Trustee of its duties and obligations set forth herein,
the
Trustee shall indemnify the Trust Fund against any and all Losses resulting
from
such negligence; provided, however, that the Trustee shall not be liable for
any
such Losses attributable to the action or inaction of the Servicer, the
Depositor or the Holder of such Residual Certificate, as applicable, nor for
any
such Losses resulting from misinformation provided by the Holder of such
Residual Certificate on which the Trustee has relied. The foregoing shall not
be
deemed to limit or restrict the rights and remedies of the Holder of such
Residual Certificate now or hereafter existing at law or in equity.
Notwithstanding the foregoing, however, in no event shall the Trustee have
any
liability (1) for any action or omission that is taken in accordance with and
in
compliance with the express terms of, or which is expressly permitted by the
terms of, this Agreement, (2) for any Losses other than arising out of a
negligent performance by the Trustee of its duties and obligations set forth
herein, and (3) for any special or consequential damages to Certificateholders
(in addition to payment of principal and interest on the
Certificates).
ARTICLE
X
TERMINATION
| SECTION 10.01 |
Termination.
|
(a) The
respective obligations and responsibilities of the Servicer, the Depositor
and
the Trustee created hereby (other than the obligation of the Trustee to make
certain payments to Certificateholders after the final Distribution Date and
the
obligation of the Servicer to send certain notices as hereinafter set forth)
shall terminate upon notice to the Trustee upon the earliest of (i) the
Distribution Date on which the Certificate Principal Balances of the Regular
Certificates have been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan in the Trust, (iii) the optional purchase
by the Terminator of the Mortgage Loans as described below and (iv) the Assumed
Final Maturity Date as defined in the Preliminary Statement. Notwithstanding
the
foregoing, in no event shall the trust created hereby continue beyond 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.
James’s, living on the date hereof.
The
Servicer (in such context, the “Terminator”), may, at its option, terminate this
Agreement on any date on which the aggregate Stated Principal Balance of the
Mortgage Loans (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) on such date is equal to or less than 10% of the aggregate Stated
Principal Balance of the Mortgage Loans on the Cut-off Date, by purchasing,
on
the next succeeding Distribution Date, all of the outstanding Mortgage Loans
and
REO Properties at a price equal to the greater of (i) the Stated Principal
Balance of the Mortgage Loans (after giving effect to scheduled payments of
principal due during the related Due Period, to the extent received or advanced,
and unscheduled collections of principal received during the related Prepayment
Period) and the appraised value of the REO Properties and (ii) fair market
value
of the Mortgage Loans and REO Properties (as determined and as agreed upon
in
their good faith business judgment (determined as provided in the last sentence
of this paragraph) 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 10.01(c) by (x) the Terminator,
(y) the Holders of a majority in Percentage Interest in the Class C Certificates
and (z) if the Fixed Rate Certificates and the Floating-Rate Certificates will
not receive all amounts owed to it as a result of the termination, the Trustee
(provided that if this clause (z) applies to such determination, such
determination shall, notwithstanding anything to the contrary herein, be based
solely upon an appraisal obtained as provided in the last sentence of this
paragraph)), plus accrued and unpaid interest thereon at the weighted average
of
the Mortgage Rates through the end of the Due Period preceding the final
Distribution Date plus unreimbursed Servicing Advances, Advances, any unpaid
Servicing Fees allocable to such Mortgage Loans and REO Properties, any accrued
and unpaid Net WAC Rate Carryover Amounts and any Swap Termination Payment
payable to the Swap Provider then remaining unpaid or which is due to the
exercise of such option (the “Termination Price”); provided, however, such
option may only be exercised if the Termination Price is sufficient to result
in
the payment of all interest accrued on, as well as amounts necessary to retire
the principal balance of, each class of notes issued pursuant to the Indenture
and any amounts owed to the NIMS Insurer (as it notifies the Trustee and
Servicer in writing). If the determination of the fair market value of the
Mortgage Loans and REO Properties shall be required to be made and agreed upon
by the Terminator, the Holders of a majority in Percentage Interest in the
Class
C Certificates and the Trustee as provided in (ii) above in their good faith
business judgment, such determination shall be based on an appraisal of the
value of the Mortgage Loans and REO Properties conducted by an independent
appraiser mutually agreed upon by the Terminator, the Holders of a majority
in
Percentage Interest in the Class C Certificates and the Trustee in their
reasonable discretion, and (A) such appraisal shall be obtained at no expense
to
the Trustee and (B) notwithstanding anything to the contrary above, the Trustee
may solely and conclusively rely on, and shall be protected in relying on,
such
appraisal in making such determination.
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 C
Certificates.
In
connection with any such purchase pursuant to the preceding paragraph, the
Terminator shall deposit in the Distribution Account all amounts then on deposit
in the Collection Account, which deposit shall be deemed to have occurred
immediately preceding such purchase.
Any
such
purchase shall be accomplished by deposit into the Distribution Account on
the
Determination Date before such Distribution Date of the Termination
Price.
(b) Notice
of
any termination, specifying the Distribution Date (which shall be a date that
would otherwise be a Distribution Date) upon which the Certificateholders may
surrender their Certificates to the Trustee for payment of the final
distribution and cancellation, shall be given promptly by the Trustee upon
the
Trustee receiving notice of such date from the Terminator, by letter to the
Certificateholders mailed not earlier than the 15th
day and
not later than the 25th
day of
the month next preceding the month of such final distribution specifying (1)
the
Distribution Date upon which final distribution of the Certificates will be
made
upon presentation and surrender of such Certificates at the office or agency
of
the Trustee therein designated, (2) the amount of any such final distribution
and (3) that the Record Date otherwise applicable to such Distribution Date
is
not applicable, distributions being made only upon presentation and surrender
of
the Certificates at the office or agency of the Trustee therein
specified.
(c) Upon
presentation and surrender of the Certificates, the Trustee shall cause to
be
distributed to the Holders of the Certificates on the Distribution Date for
such
final distribution, in proportion to the Percentage Interests of their
respective Class and to the extent that funds are available for such purpose,
an
amount equal to the amount required to be distributed to such Holders in
accordance with the provisions of Section 4.01 for such Distribution Date.
By
acceptance of the Residual Certificates, the Holders of the Residual
Certificates agree, in connection with any termination hereunder, to assign
and
transfer any amounts in excess of the par value of the Mortgage Loans, and
to
the extent received in respect of such termination, to pay any such amounts
to
the Holders of the Class C Certificates.
(d) In
the
event that all Certificateholders shall not surrender their Certificates for
final payment and cancellation on or before such final Distribution Date, the
Trustee shall promptly following such date cause all funds in the Distribution
Account not distributed in final distribution to Certificateholders to be
withdrawn therefrom and credited to the remaining Certificateholders by
depositing such funds in a separate Servicing Account for the benefit of such
Certificateholders, and the Servicer (if the Servicer has exercised its right
to
purchase the Mortgage Loans) or the Trustee (in any other case) shall give
a
second written notice to the remaining Certificateholders, to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within nine months after the second notice all the Certificates
shall not have been surrendered for cancellation, the Residual
Certificateholders shall be entitled to all unclaimed funds and other assets
which remain subject hereto, and the Trustee upon transfer of such funds shall
be discharged of any responsibility for such funds, and the Certificateholders
shall look to the Residual Certificateholders for payment.
| SECTION 10.02 |
Additional
Termination Requirements.
|
(a) In
the
event that the Terminator exercises its purchase option as provided in Section
10.01, each REMIC shall be terminated in accordance with the following
additional requirements, unless the Trustee shall have been furnished with
an
Opinion of Counsel to the effect that the failure of the Trust to comply with
the requirements of this Section will not (i) result in the imposition of taxes
on “prohibited transactions” of the Trust as defined in Section 860F of the Code
or (ii) cause any REMIC constituting part of the Trust Fund to fail to qualify
as a REMIC at any time that any Certificates are outstanding:
(i) Within
90
days prior to the final Distribution Date, the Terminator shall adopt and the
Trustee shall sign a plan of complete liquidation of each REMIC created
hereunder meeting the requirements of a “Qualified Liquidation” under Section
860F of the Code and any regulations thereunder; and
(ii) At
or
after the time of adoption of such a plan of complete liquidation and at or
prior to the final Distribution Date, the Trustee shall sell all of the assets
of the Trust Fund to the Terminator for cash pursuant to the terms of the plan
of complete liquidation.
(b) By
their
acceptance of Certificates, the Holders thereof hereby agree to appoint the
Trustee as their attorney in fact to: (i) adopt such a plan of complete
liquidation (and the Certificateholders hereby appoint the Trustee as their
attorney in fact to sign such plan) as appropriate and (ii) to take such other
action in connection therewith as may be reasonably required to carry out such
plan of complete liquidation all in accordance with the terms
hereof.
ARTICLE
XI
MISCELLANEOUS
PROVISIONS
| SECTION 11.01 |
Amendment.
|
This
Agreement may be amended from time to time by the Depositor, the Servicer and
the Trustee with the consent of the NIMS Insurer and without the consent of
the
Certificateholders (i) to cure any ambiguity, (ii) to correct or supplement
any
provisions herein which may be defective or inconsistent with any other
provisions herein or (iii) 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 such action shall not, 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 each Rating
Agency 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, adversely affect in any material respect the interests of any
Certificateholder. 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.
In
addition, this Agreement may be amended from time to time by the Depositor,
the
Servicer and the Trustee with the consent of the NIMS Insurer, the Swap Provider
and the Majority Certificateholders 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 or waiver shall (x) reduce in any
manner the amount of, or delay the timing of, payments on the Certificates
or
distributions which are required to be made on any Certificate without the
consent of the Holder of such Certificate, (y) adversely affect in any material
respect the interests of the Swap Provider or Holders of any Class of
Certificates (as evidenced by either (i) an Opinion of Counsel delivered to
the
Trustee or (ii) written notice to the Depositor, the Servicer and the Trustee
from each Rating Agency 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 clause
(x) above, without the consent of the Holders of Certificates of such Class
evidencing at least a 66% Percentage Interest in such Class, or (z) reduce
the
percentage of Voting Rights required by clause (y) above without the consent
of
the Holders of all Certificates of such Class then outstanding. Upon approval
of
an amendment, a copy of such amendment shall be sent to the Rating
Agencies.
Notwithstanding
any provision of this Agreement to the contrary, the Trustee shall not consent
to any amendment to this Agreement unless it shall have first received an
Opinion of Counsel, delivered by (and at the expense of) the Person seeking
such
Amendment and satisfactory to the NIMS Insurer, to the effect that such
amendment will not result in the imposition of a tax on any REMIC created
hereunder constituting part of the Trust Fund pursuant to the REMIC Provisions
or cause any REMIC created hereunder constituting part of the Trust to fail
to
qualify as a REMIC at any time that any Certificates are outstanding and that
the amendment is being made in accordance with the terms hereof.
Notwithstanding
any of the other provisions of this Section 11.01, none of the Depositor, the
Servicer or the Trustee shall enter into any amendment to Section 4.05 or
Section 11.10 of this Agreement without the prior written consent of the Swap
Provider.
Promptly
after the execution of any such amendment the Trustee shall furnish, at the
expense of the Person that requested the amendment if such Person is the
Servicer (but in no event at the expense of the Trustee), otherwise at the
expense of the Trust, a copy of such amendment and the Opinion of Counsel
referred to in the immediately preceding paragraph to the Servicer, the NIMS
Insurer and each Rating Agency.
It
shall
not be necessary for the consent of Certificateholders under this Section 11.01
to approve the particular form of any proposed amendment; instead it shall
be
sufficient if such consent shall approve the substance thereof. The manner
of
obtaining such consents and of evidencing the authorization of the execution
thereof by Certificateholders shall be subject to such reasonable regulations
as
the Trustee may prescribe.
The
Trustee may, but shall not be obligated to, enter into any amendment pursuant
to
this Section 11.01 that affects its rights, duties and immunities under this
Agreement or otherwise.
| SECTION 11.02 |
Recordation
of Agreement; Counterparts.
|
To
the
extent permitted by applicable law, this Agreement is subject to recordation
in
all appropriate public offices for real property records in all the counties
or
other comparable jurisdictions in which any or all of the properties subject
to
the Mortgages are situated, and in any other appropriate public recording office
or elsewhere, such recordation to be effected by the Servicer at the expense
of
the Trust, but only upon direction of Certificateholders accompanied by an
Opinion of Counsel to the effect that such recordation materially and
beneficially affects the interests of the Certificateholders.
For
the
purpose of facilitating the recordation of this Agreement as herein provided
and
for other purposes, this Agreement may be executed simultaneously in any number
of counterparts, each of which counterparts shall be deemed to be an original,
and such counterparts shall together constitute but one and the same
instrument.
| SECTION 11.03 |
Limitation
on Rights of Certificateholders.
|
The
death
or incapacity of any Certificateholder shall not (i) operate to terminate this
Agreement or the Trust, (ii) entitle such Certificateholder’s legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust, or (iii)
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
Except
as
expressly provided for herein, no Certificateholder shall have any right to
vote
or in any manner otherwise control the operation and management of the Trust,
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 person
by
reason of any action taken by the parties to this Agreement pursuant to any
provision hereof.
No
Certificateholder shall have any right by virtue of any provision of this
Agreement to institute any suit, action or proceeding in equity or at law upon
or under or with respect to this Agreement, unless such Holder previously shall
have given to the Trustee a written notice of default and of the continuance
thereof, as hereinbefore provided, and unless also the Holders of Certificates
entitled to at least 25% of the Voting Rights shall have made written request
upon the Trustee to institute such action, suit or proceeding in its own name
as
Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to
be
incurred therein or thereby, and the Trustee for 15 days after its receipt
of
such notice, request and offer of indemnity, shall have neglected or refused
to
institute any such action, suit or proceeding. It is understood and intended,
and expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue of any provision of this
Agreement to affect, disturb or prejudice the rights of the Holders of any
other
of such Certificates, or to obtain or seek to obtain priority over or preference
to any other such Holder, which priority or preference is not otherwise provided
for herein, or to enforce any right under this Agreement, except in the manner
herein provided and for the equal, ratable and common benefit of all
Certificateholders. For the protection and enforcement of the provisions of
this
Section 11.03 each and every Certificateholder and the Trustee shall be entitled
to such relief as can be given either at law or in equity.
| SECTION 11.04 |
Governing
Law; Jurisdiction.
|
This
Agreement shall be construed in accordance with the laws of the State of New
York, and the obligations, rights and remedies of the parties hereunder shall
be
determined in accordance with such laws. With respect to any claim arising
out
of this Agreement, each party irrevocably submits to the exclusive jurisdiction
of the courts of the State of New York and the United States District Court
located in the Borough of Manhattan in The City of New York, and each party
irrevocably waives any objection which it may have at any time to the laying
of
venue of any suit, action or proceeding arising out of or relating hereto
brought in any such courts, irrevocably waives any claim that any such suit,
action or proceeding brought in any such court has been brought in any
inconvenient forum and further irrevocably waives the right to object, with
respect to such claim, suit, action or proceeding brought in any such court,
that such court does not have jurisdiction over such party, provided that
service of process has been made by any lawful means.
| SECTION 11.05 |
Notices.
|
All
directions, demands and notices hereunder 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, by facsimile or by express delivery service, to
(a)
in the case of the Servicer, in the case of the Servicer, 0 Xxxx Xxxxxx, Xxx
Xxxxxx, XX 00000-0000, Attention: Xxxx X. Xxxxx, MAC X 2401-042, (telecopy
number: (000) 000-0000), with a copy to General Counsel, 0 Xxxx Xxxxxx, Xxx
Xxxxxx, XX 00000-0000, MAC X 2401-06T, (telecopy number: (000) 000-0000), or
such other address or telecopy number as may hereafter be furnished to the
Depositor and the Trustee in writing by the Servicer, (b) in the case of the
Trustee, Deutsche Bank National Trust Company, 0000 Xxxx Xx. Xxxxxx Xxxxx,
Xxxxx
Xxx, Xxxxxxxxxx 00000-0000, Attention: Trust Administration - GC06F1 (telecopy
number: (000) 000-0000) and with respect to any notices, reports or other
information to be sent to the Trustee pursuant to Section 4.07 by electronic
mail, to XXXXX.xxxxxxxxxxxxx@XX.xxx,
or such
other address or telecopy number as may hereafter be furnished to the Depositor,
the NIMS Insurer and the Servicer in writing by the Trustee (c) in the case
of
the Depositor, Financial Asset Securities Corp., 000 Xxxxxxxxx Xxxx, Xxxxxxxxx,
Xxxxxxxxxxx 00000, Attention: Legal, or such other address as may be furnished
to the Servicer, the NIMS Insurer and the Trustee in writing by the Depositor
and (d) in the case of the NIMS Insurer, such address furnished to the
Depositor, the Servicer and the Trustee in writing by the NIMS Insurer, or
such
other address or telecopy number as may hereafter be furnished to the Depositor,
the Servicer and the Trustee in writing by the NIMS Insurer. Any notice required
or permitted to be mailed to a Certificateholder shall be given by first class
mail, postage prepaid, at the address of such Holder as shown in the Certificate
Register. Notice of any Servicer Event of Termination shall be given by telecopy
and by certified mail. Any notice so mailed within the time prescribed in this
Agreement shall be conclusively presumed to have duly been given when mailed,
whether or not the Certificateholder receives such notice. A copy of any notice
required to be telecopied hereunder shall also be mailed to the appropriate
party in the manner set forth above.
| SECTION 11.06 |
Severability
of Provisions.
|
If
any
one or more of the covenants, agreements, provisions or terms of this Agreement
shall for any reason whatsoever be 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 11.07 |
Article
and Section References.
|
All
article and section references used in this Agreement, unless otherwise
provided, are to articles and sections in this Agreement.
| SECTION 11.08 |
Notice
to the Rating Agencies and the NIMS
Insurer.
|
(a) Each
of
the Trustee and the Servicer shall be obligated to use its best reasonable
efforts promptly to provide notice to the Rating Agencies and the NIMS Insurer
with respect to each of the following of which a Responsible Officer of the
Trustee or Servicer, as the case may be, has actual knowledge:
(i) any
material change or amendment to this Agreement;
(ii) the
occurrence of any Servicer Event of Termination that has not been cured or
waived;
(iii) the
resignation or termination of the Servicer or the Trustee;
(iv) the
final
payment to Holders of the Certificates of any Class;
(v) any
change in the location of any Account; and
(vi) if
the
Trustee is acting as successor Servicer pursuant to Section 7.02 hereof, any
event that would result in the inability of the Trustee to make
Advances.
(b) In
addition, the Trustee shall promptly make available to each Rating Agency copies
of each Statement to Certificateholders described in Sections 4.03 and 3.19
hereof and the Servicer shall promptly furnish to each Rating Agency copies
of
the following:
(i) each
annual statement as to compliance described in Section 3.20 hereof;
(ii) each
annual independent public accountants’ servicing report described in Section
3.21 hereof; and
(iii) each
notice delivered pursuant to Section 7.01(a) hereof which relates to the fact
that the Servicer has not made an Advance.
Any
such
notice pursuant to this Section 11.08 shall be in writing and shall be deemed
to
have been duly given if personally delivered or mailed by first class mail,
postage prepaid, or by express delivery service to (i) Fitch Ratings, 0 Xxxxx
Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 and (ii) Standard & Poor’s, a
division of The XxXxxx-Xxxx Companies, Inc., 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, XX 00000, Attention: Residential Mortgage Surveillance Group.
| SECTION 11.09 |
Further
Assurances.
|
Notwithstanding
any other provision of this Agreement, neither the Regular Certificateholders
nor the Trustee shall have any obligation to consent to any amendment or
modification of this Agreement unless they have been provided reasonable
security or indemnity against their out-of-pocket expenses (including reasonable
attorneys’ fees) to be incurred in connection therewith.
| SECTION 11.10 |
Third
Party Rights.
|
The
NIMS
Insurer and the Swap Provider shall each be deemed third-party beneficiaries
of
this Agreement to the same extent as if they were parties hereto, and shall
have
the right to enforce the provisions of this Agreement.
| SECTION 11.11 |
Benefits
of Agreement.
|
Nothing
in this Agreement or in the Certificates, expressed or implied, shall give
to
any Person, other than the Certificateholders, the NIMS Insurer and the parties
hereto and their successors hereunder, any benefit or any legal or equitable
right, remedy or claim under this Agreement.
| SECTION 11.12 |
Acts
of Certificateholders.
|
(a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Agreement to be given or taken by the Certificateholders
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Certificateholders in person or by agent duly
appointed in writing, and such action shall become effective when such
instrument or instruments are delivered to the Trustee and the Servicer. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the “act” of the Certificateholders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for
any
purpose of this Agreement and conclusive in favor of the Trustee and the Trust,
if made in the manner provided in this Section 11.11.
(b) The
fact
and date of the execution by any Person of any such instrument or writing may
be
proved by the affidavit of a witness of such execution or by the certificate
of
a notary public or other officer authorized by law to take acknowledgments
of
deeds, certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Whenever such execution is by a
signer acting in a capacity other than his or her individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority.
(c) Any
request, demand, authorization, direction, notice, consent, waiver or other
action by any Certificateholder shall bind every future Holder of such
Certificate and the Holder of every Certificate issued upon the registration
of
transfer thereof or in exchange therefor or in lieu thereof, in respect of
anything done, omitted or suffered to be done by the Trustee or the Trust in
reliance thereon, whether or not notation of such action is made upon such
Certificate.
| SECTION 11.13 |
Intention
of the Parties and Interpretation.
|
Each
of
the parties acknowledges and agrees that the purpose of Sections 3.20, 3.21
and
4.07 of this Agreement is to facilitate compliance by the Depositor with the
provisions of Regulation AB promulgated by the SEC under the 1934 Act (17 C.F.R.
§§ 229.1100-229.1123), as such may be amended from time to time and subject to
clarification and interpretive advice as may be issued by the staff of the
SEC
from time to time. Therefore, each of the parties agrees that (a) the
obligations of the parties hereunder shall be interpreted in such a manner
as to
accomplish that purpose, (b) the parties’ obligations hereunder will be
supplemented and modified as necessary to be consistent with any such
amendments, interpretive advice or guidance, convention or consensus among
active participants in the asset-backed securities markets, advice of counsel,
or otherwise in respect of the requirements of Regulation AB, (c) the parties
shall comply with requests made by the Depositor for delivery of additional
or
different information as the Depositor may determine in good faith is necessary
to comply with the provisions of Regulation AB, and (d) no amendment of this
Agreement shall be required to effect any such changes in the parties’
obligations as are necessary to accommodate evolving interpretations of the
provisions of Regulation AB.
IN
WITNESS WHEREOF, the Depositor, the Servicer and the Trustee have caused their
names to be signed hereto by their respective officers thereunto duly
authorized, all as of the day and year first above written.
FINANCIAL
ASSET SECURITIES CORP.,
as
Depositor
By:
/s/ Xxx Xxxxxxxxxx
Name:
Xxx Xxxxxxxxxx
Title:
Vice President
XXXXX
FARGO BANK, N.A..,
as
Servicer
By:
/s/ Xxxxxx XxXxxxxx
Name:
Xxxxxx XxXxxxxx
Title:
Vice President
DEUTSCHE
BANK NATIONAL TRUST COMPANY, as Trustee
By:
/s/ Xxxx Xxxxxxx
Name:
Xxxx Xxxxxxx
Title:
Associate
By:
/s/ Xxxxxxx Xxxxx
Name:
Xxxxxxx Xxxxx
Title:
Vice President
|
STATE
OF CONNECTICUT
|
)
|
|
)
ss.:
|
|
|
COUNTY
OF
|
)
|
On
the
____ day of April, 2006 before me, a notary public in and for said State,
personally appeared ___________________known to me to be a ____________________
of Financial Asset Securities Corp., a Delaware corporation that executed the
within instrument, and also known to me to be the person who executed it on
behalf of said corporation, and acknowledged to me that such corporation
executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
_____________________________
Notary
Public
|
STATE
OF
|
)
|
|
)
ss.:
|
|
|
COUNTY
OF
|
)
|
On
the____ day of April, 2006 before me, a notary public in and for said State,
personally appeared ________________________known to me to be a
___________________ of Xxxxx Fargo Bank, N.A., a corporation that executed
the
within instrument, and also known to me to be the person who executed it on
behalf of said corporation, and acknowledged to me that such corporation
executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
_____________________________
Notary
Public
|
STATE
OF CALIFORNIA
|
)
|
|
)
ss.:
|
|
|
COUNTY
OF ORANGE
|
)
|
On
the
___ day of April, 2006 before me, a notary public in and for said State,
personally appeared_______________________, known to me to be
a(n)________________________ and ________________________, known to me to be
a(n) ________________________of Deutsche Bank National Trust Company, 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 association, and acknowledged to me
that such corporation executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
_____________________________
Notary
Public
EXHIBIT
A-1
FORM
OF
CLASS I-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,
AS
AMENDED (THE “CODE”).
PRIOR
TO
THE TERMINATION OF THE SUPPLEMENTAL INTEREST TRUST, ANY TRANSFEREE OF THIS
CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATION IN SECTION 5.02(D)
OF THE POOLING AND SERVICING AGREEMENT.
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
April
1, 2006
|
|
First
Distribution Date
|
:
|
May
25, 2006
|
|
Initial
Certificate Principal Balance
of
this Certificate (“Denomination”)
|
:
|
$
334,852,000.00
|
|
Original
Class Certificate
Principal
Balance of this Class
|
:
|
$
334,852,000.00
|
|
Percentage
Interest
|
:
|
100%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
35729P
NX 4
|
|
Class
|
:
|
I-A-1
|
|
Assumed
Maturity Date
|
:
|
April
2036
|
Asset-Backed
Certificates,
Series
2006-1
CLASS
I-A-1
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first lien
adjustable rate and fixed rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class I-A-1 Certificate
at any time may be less than the Initial Certificate Principal Balance set
forth
on the face hereof, as described herein. This Class I-A-1 Certificate does
not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, or the Trustee referred to below or any of their
respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class I-A-1 Certificate (obtained by dividing the Denomination
of this Class I-A-1 Certificate by the Original Class Certificate Principal
Balance) in certain monthly distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of April 1, 2006 (the “Agreement”) among the Depositor, Xxxxx
Fargo Bank, N.A., as servicer (the “Servicer”), and Deutsche Bank National Trust
Company, a national banking association, as trustee (the “Trustee”). To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Agreement. This Class I-A-1 Certificate is issued under and
is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Class I-A-1 Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Reference
is hereby made to the further provisions of this Class I-A-1 Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This
Class I-A-1 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this Certificate
to be duly executed.
Dated:
April __, 2006
|
FREMONT
HOME LOAN TRUST 0000-0
XXXXXXXX
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
|
||
|
By:
|
||
This
is
one of the Certificates referenced
in
the
within-mentioned Agreement
By:__________________________________________
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
[Reverse
of Class I-A-1 Certificate]
Asset-Backed
Certificates,
SERIES
2006-1
This
Certificate is one of a duly authorized issue of Certificates designated as
Fremont Home Loan Trust 2006-1, Asset-Backed Certificates, Series 2006-1 (herein
collectively called the “Certificates”), and representing a beneficial ownership
interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable 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 Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register or
by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee
or
the Trustee’s agent specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee and of Holders of the requisite
percentage of the Percentage Interests of each Class of Certificates affected
by
such amendment, as specified in the Agreement. 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 therefor 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
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trustee as provided in the Pooling
and Servicing Agreement accompanied by a written instrument of transfer in
form
satisfactory to the Trustee and the Certificate Registrar 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 and evidencing the same aggregate Percentage Interest in the
Trust
will be issued to the designated transferee or transferees.
Prior
to
the termination of the Supplemental Interest Trust, any transferee of this
Certificate shall be deemed to have made the representation in Section 5.02(d)
of the Agreement.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
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,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer and 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
Trustee, the Servicer or any such agent shall be affected by any notice to
the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the Principal Balance of
the
Original Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in
whole, from the Trust the Mortgage Loans at a purchase price determined as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trustee upon the earliest of (i) the Distribution
Date on which the Certificate Principal Balances of the Regular Certificates
have been reduced to zero, (ii) the final payment or other liquidation of the
last Mortgage Loan in the Trust, (iii) the optional purchase by the Servicer
of
the Mortgage Loans as described in the Agreement and (iv) the Distribution
Date
in April 2036.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-2
FORM
OF
CLASS II-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,
AS
AMENDED (THE “CODE”).
PRIOR
TO
THE TERMINATION OF THE SUPPLEMENTAL INTEREST TRUST, ANY TRANSFEREE OF THIS
CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATION IN SECTION 5.02(D)
OF THE POOLING AND SERVICING AGREEMENT.
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
April
1, 2006
|
|
First
Distribution Date
|
:
|
May
25, 2006
|
|
Initial
Certificate Principal Balance
of
this Certificate (“Denomination”)
|
:
|
$
165,310,000.00
|
|
Original
Class Certificate
Principal
Balance of this Class
|
:
|
$
165,310,000.00
|
|
Percentage
Interest
|
:
|
100%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
35729P
NY 2
|
|
Class
|
:
|
II-A-1
|
|
Assumed
Maturity Date
|
:
|
April
2036
|
Asset-Backed
Certificates,
Series
2006-1
CLASS
II-A-1
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first lien
adjustable rate and fixed rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class II-A-1 Certificate
at any time may be less than the Initial Certificate Principal Balance set
forth
on the face hereof, as described herein. This Class II-A-1 Certificate does
not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, or the Trustee referred to below or any of their
respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class II-A-1 Certificate (obtained by dividing the
Denomination of this Class II-A-1 Certificate by the Original Class Certificate
Principal Balance) in certain monthly distributions with respect to a Trust
consisting primarily of the Mortgage Loans deposited by Financial Asset
Securities Corp. (the “Depositor”). The Trust was created pursuant to a Pooling
and Servicing Agreement dated as of April 1, 2006 (the “Agreement”) among the
Depositor, Xxxxx Fargo Bank, N.A., as servicer (the “Servicer”), and Deutsche
Bank National Trust Company, a national banking association, as trustee (the
“Trustee”). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Class II-A-1 Certificate
is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Class II-A-1 Certificate by
virtue of the acceptance hereof assents and by which such Holder is
bound.
Reference
is hereby made to the further provisions of this Class II-A-1 Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This
Class II-A-1 Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this Certificate
to be duly executed.
Dated:
April __, 2006
|
FREMONT
HOME LOAN TRUST 0000-0
XXXXXXXX
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
|
||
|
By:
|
||
This
is
one of the Certificates referenced
in
the
within-mentioned Agreement
By:__________________________________________
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
[Reverse
of Class II-A-1 Certificate]
Asset-Backed
Certificates,
SERIES
2006-1
This
Certificate is one of a duly authorized issue of Certificates designated as
Fremont Home Loan Trust 2006-1, Asset-Backed Certificates, Series 2006-1 (herein
collectively called the “Certificates”), and representing a beneficial ownership
interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable 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 Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register or
by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee
or
the Trustee’s agent specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee and of Holders of the requisite
percentage of the Percentage Interests of each Class of Certificates affected
by
such amendment, as specified in the Agreement. 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 therefor 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
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trustee as provided in the Pooling
and Servicing Agreement accompanied by a written instrument of transfer in
form
satisfactory to the Trustee and the Certificate Registrar 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 and evidencing the same aggregate Percentage Interest in the
Trust
will be issued to the designated transferee or transferees.
Prior
to
the termination of the Supplemental Interest Trust, any transferee of this
Certificate shall be deemed to have made the representation in Section 5.02(d)
of the Agreement.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
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,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer and 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
Trustee, the Servicer or any such agent shall be affected by any notice to
the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the Principal Balance of
the
Original Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in
whole, from the Trust the Mortgage Loans at a purchase price determined as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trustee upon the earliest of (i) the Distribution
Date on which the Certificate Principal Balances of the Regular Certificates
have been reduced to zero, (ii) the final payment or other liquidation of the
last Mortgage Loan in the Trust, (iii) the optional purchase by the Servicer
of
the Mortgage Loans as described in the Agreement and (iv) the Distribution
Date
in April 2036.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-3
FORM
OF
CLASS II-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,
AS
AMENDED (THE “CODE”).
PRIOR
TO
THE TERMINATION OF THE SUPPLEMENTAL INTEREST TRUST, ANY TRANSFEREE OF THIS
CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATION IN SECTION 5.02(D)
OF THE POOLING AND SERVICING AGREEMENT.
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
April
1, 2006
|
|
First
Distribution Date
|
:
|
May
25, 2006
|
|
Initial
Certificate Principal Balance
of
this Certificate (“Denomination”)
|
:
|
$
105,996,000.00
|
|
Original
Class Certificate
Principal
Balance of this Class
|
:
|
$
105,996,000.00
|
|
Percentage
Interest
|
:
|
100%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
35729P
NZ 9
|
|
Class
|
:
|
II-A-2
|
|
Assumed
Maturity Date
|
:
|
April
2036
|
Fremont
Home Loan Trust 2006-1
Asset-Backed
Certificates,
Series
2006-1
CLASS
II-A-2
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first lien
adjustable rate and fixed rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class II-A-2 Certificate
at any time may be less than the Initial Certificate Principal Balance set
forth
on the face hereof, as described herein. This Class II-A-2 Certificate does
not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, or the Trustee referred to below or any of their
respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class II-A-2 Certificate (obtained by dividing the
Denomination of this Class II-A-2 Certificate by the Original Class Certificate
Principal Balance) in certain monthly distributions with respect to a Trust
consisting primarily of the Mortgage Loans deposited by Financial Asset
Securities Corp. (the “Depositor”). The Trust was created pursuant to a Pooling
and Servicing Agreement dated as of April 1, 2006 (the “Agreement”) among the
Depositor, Xxxxx Fargo Bank, N.A., as servicer (the “Servicer”), and Deutsche
Bank National Trust Company, a national banking association, as trustee (the
“Trustee”). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Class II-A-2 Certificate
is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Class II-A-2 Certificate by
virtue of the acceptance hereof assents and by which such Holder is
bound.
Reference
is hereby made to the further provisions of this Class II-A-2 Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This
Class II-A-2 Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this Certificate
to be duly executed.
Dated:
April __, 2006
|
FREMONT
HOME LOAN TRUST 0000-0
XXXXXXXX
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
|
||
|
By:
|
||
This
is
one of the Certificates referenced
in
the
within-mentioned Agreement
By:__________________________________________
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
[Reverse
of Class II-A-2 Certificate]
Fremont
Home Loan Trust 2006-1
Asset-Backed
Certificates,
SERIES
2006-1
This
Certificate is one of a duly authorized issue of Certificates designated as
Fremont Home Loan Trust 2006-1, Asset-Backed Certificates, Series 2006-1 (herein
collectively called the “Certificates”), and representing a beneficial ownership
interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable 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 Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register or
by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee
or
the Trustee’s agent specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee and of Holders of the requisite
percentage of the Percentage Interests of each Class of Certificates affected
by
such amendment, as specified in the Agreement. 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 therefor 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
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trustee as provided in the Pooling
and Servicing Agreement accompanied by a written instrument of transfer in
form
satisfactory to the Trustee and the Certificate Registrar 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 and evidencing the same aggregate Percentage Interest in the
Trust
will be issued to the designated transferee or transferees.
Prior
to
the termination of the Supplemental Interest Trust, any transferee of this
Certificate shall be deemed to have made the representation in Section 5.02(d)
of the Agreement.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
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,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer and 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
Trustee, the Servicer or any such agent shall be affected by any notice to
the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the Principal Balance of
the
Original Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in
whole, from the Trust the Mortgage Loans at a purchase price determined as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trustee upon the earliest of (i) the Distribution
Date on which the Certificate Principal Balances of the Regular Certificates
have been reduced to zero, (ii) the final payment or other liquidation of the
last Mortgage Loan in the Trust, (iii) the optional purchase by the Servicer
of
the Mortgage Loans as described in the Agreement and (iv) the Distribution
Date
in April 2036.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-4
FORM
OF
CLASS II-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,
AS
AMENDED (THE “CODE”).
PRIOR
TO
THE TERMINATION OF THE SUPPLEMENTAL INTEREST TRUST, ANY TRANSFEREE OF THIS
CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATION IN SECTION 5.02(D)
OF THE POOLING AND SERVICING AGREEMENT.
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
April
1, 2006
|
|
First
Distribution Date
|
:
|
May
25, 2006
|
|
Initial
Certificate Principal Balance
of
this Certificate (“Denomination”)
|
:
|
$
126,597,000.00
|
|
Original
Class Certificate
Principal
Balance of this Class
|
:
|
$
126,597,000.00
|
|
Percentage
Interest
|
:
|
100%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
35729P
PA 2
|
|
Class
|
:
|
II-A-3
|
|
Assumed
Maturity Date
|
:
|
April
2036
|
Fremont
Home Loan Trust 2006-1
Asset-Backed
Certificates,
Series
2006-1
CLASS
II-A-3
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first lien
adjustable rate and fixed rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class II-A-3 Certificate
at any time may be less than the Initial Certificate Principal Balance set
forth
on the face hereof, as described herein. This Class II-A-3 Certificate does
not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, or the Trustee referred to below or any of their
respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class II-A-3 Certificate (obtained by dividing the
Denomination of this Class II-A-3 Certificate by the Original Class Certificate
Principal Balance) in certain monthly distributions with respect to a Trust
consisting primarily of the Mortgage Loans deposited by Financial Asset
Securities Corp. (the “Depositor”). The Trust was created pursuant to a Pooling
and Servicing Agreement dated as of April 1, 2006 (the “Agreement”) among the
Depositor, Xxxxx Fargo Bank, N.A., as servicer (the “Servicer”), and Deutsche
Bank National Trust Company, a national banking association, as trustee (the
“Trustee”). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Class II-A-3 Certificate
is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Class II-A-3 Certificate by
virtue of the acceptance hereof assents and by which such Holder is
bound.
Reference
is hereby made to the further provisions of this Class II-A-3 Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This
Class II-A-3 Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this Certificate
to be duly executed.
Dated:
April __, 2006
|
FREMONT
HOME LOAN TRUST 0000-0
XXXXXXXX
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
|
||
|
By:
|
||
This
is
one of the Certificates referenced
in
the
within-mentioned Agreement
By:__________________________________________
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
[Reverse
of Class II-A-3 Certificate]
Fremont
Home Loan Trust 2006-1
Asset-Backed
Certificates,
SERIES
2006-1
This
Certificate is one of a duly authorized issue of Certificates designated as
Fremont Home Loan Trust 2006-1, Asset-Backed Certificates, Series 2006-1 (herein
collectively called the “Certificates”), and representing a beneficial ownership
interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable 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 Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register or
by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee
or
the Trustee’s agent specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee and of Holders of the requisite
percentage of the Percentage Interests of each Class of Certificates affected
by
such amendment, as specified in the Agreement. 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 therefor 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
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trustee as provided in the Pooling
and Servicing Agreement accompanied by a written instrument of transfer in
form
satisfactory to the Trustee and the Certificate Registrar 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 and evidencing the same aggregate Percentage Interest in the
Trust
will be issued to the designated transferee or transferees.
Prior
to
the termination of the Supplemental Interest Trust, any transferee of this
Certificate shall be deemed to have made the representation in Section 5.02(d)
of the Agreement.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
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,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer and 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
Trustee, the Servicer or any such agent shall be affected by any notice to
the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the Principal Balance of
the
Original Mortgage Loans as of the Cut-off Date the Servicer may purchase, in
whole, from the Trust the Mortgage Loans at a purchase price determined as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trustee upon the earliest of (i) the Distribution
Date on which the Certificate Principal Balances of the Regular Certificates
have been reduced to zero, (ii) the final payment or other liquidation of the
last Mortgage Loan in the Trust, (iii) the optional purchase by the Servicer
of
the Mortgage Loans as described in the Agreement and (iv) the Distribution
Date
in April 2036.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-5
FORM
OF
CLASS II-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,
AS
AMENDED (THE “CODE”).
PRIOR
TO
THE TERMINATION OF THE SUPPLEMENTAL INTEREST TRUST, ANY TRANSFEREE OF THIS
CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATION IN SECTION 5.02(D)
OF THE POOLING AND SERVICING AGREEMENT.
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
April
1, 2006
|
|
First
Distribution Date
|
:
|
May
25, 2006
|
|
Initial
Certificate Principal Balance
of
this Certificate (“Denomination”)
|
:
|
$
38,870,000.00
|
|
Original
Class Certificate
Principal
Balance of this Class
|
:
|
$
38,870,000.00
|
|
Percentage
Interest
|
:
|
100%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
35729P
PB 0
|
|
Class
|
:
|
II-A-4
|
|
Assumed
Maturity Date
|
:
|
April
2036
|
Fremont
Home Loan Trust 2006-1
Asset-Backed
Certificates,
Series
2006-1
CLASS
II-A-4
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first lien
adjustable rate and fixed rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class II-A-4 Certificate
at any time may be less than the Initial Certificate Principal Balance set
forth
on the face hereof, as described herein. This Class II-A-4 Certificate does
not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, or the Trustee referred to below or any of their
respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class II-A-4 Certificate (obtained by dividing the
Denomination of this Class II-A-4 Certificate by the Original Class Certificate
Principal Balance) in certain monthly distributions with respect to a Trust
consisting primarily of the Mortgage Loans deposited by Financial Asset
Securities Corp. (the “Depositor”). The Trust was created pursuant to a Pooling
and Servicing Agreement dated as of April 1, 2006 (the “Agreement”) among the
Depositor, Xxxxx Fargo Bank, N.A., as servicer (the “Servicer”), and Deutsche
Bank National Trust Company, a national banking association, as trustee (the
“Trustee”). To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Class II-A-4 Certificate
is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Class II-A-4 Certificate by
virtue of the acceptance hereof assents and by which such Holder is
bound.
Reference
is hereby made to the further provisions of this Class II-A-4 Certificate set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
This
Class II-A-4 Certificate shall not be entitled to any benefit under the
Agreement or be valid for any purpose unless manually countersigned by an
authorized signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this Certificate
to be duly executed.
Dated:
April __, 2006
|
FREMONT
HOME LOAN TRUST 0000-0
XXXXXXXX
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
|
||
|
By:
|
||
This
is
one of the Certificates referenced
in
the
within-mentioned Agreement
By:__________________________________________
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
[Reverse
of Class II-A-4 Certificate]
Fremont
Home Loan Trust 2006-1
Asset-Backed
Certificates,
SERIES
2006-1
This
Certificate is one of a duly authorized issue of Certificates designated as
Fremont Home Loan Trust 2006-1, Asset-Backed Certificates, Series 2006-1 (herein
collectively called the “Certificates”), and representing a beneficial ownership
interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable 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 Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register or
by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee
or
the Trustee’s agent specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee and of Holders of the requisite
percentage of the Percentage Interests of each Class of Certificates affected
by
such amendment, as specified in the Agreement. 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 therefor 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
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trustee as provided in the Pooling
and Servicing Agreement accompanied by a written instrument of transfer in
form
satisfactory to the Trustee and the Certificate Registrar 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 and evidencing the same aggregate Percentage Interest in the
Trust
will be issued to the designated transferee or transferees.
Prior
to
the termination of the Supplemental Interest Trust, any transferee of this
Certificate shall be deemed to have made the representation in Section 5.02(d)
of the Agreement.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
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,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer and 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
Trustee, the Servicer or any such agent shall be affected by any notice to
the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the Principal Balance of
the
Original Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in
whole, from the Trust the Mortgage Loans at a purchase price determined as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trustee upon the earliest of (i) the Distribution
Date on which the Certificate Principal Balances of the Regular Certificates
have been reduced to zero, (ii) the final payment or other liquidation of the
last Mortgage Loan in the Trust, (iii) the optional purchase by the Servicer
of
the Mortgage Loans as described in the Agreement and (iv) the Distribution
Date
in April 2036.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-6
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.
THIS
CERTIFICATE IS SUBORDINATE TO THE SENIOR CERTIFICATES TO THE EXTENT DESCRIBED
IN
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
ANY
TRANSFEREE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATION
IN SECTION 5.02(D) OF THE POOLING AND SERVICING AGREEMENT.
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,
AS
AMENDED (THE “CODE”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
April
1, 2006
|
|
First
Distribution Date
|
:
|
May
25, 2006
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$
75,244,000.00
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$
75,244,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
35729P
PC 8
|
|
Class
|
:
|
M-1
|
|
Assumed
Maturity Date
|
:
|
April
2036
|
Fremont
Home Loan Trust 2006-1
Asset-Backed
Certificates,
Series
2006-1
CLASS
M-1
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first lien
adjustable rate and fixed rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class M-1 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class M-1 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, or the Trustee referred to below or any of their
respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class M-1 Certificate (obtained by dividing the Denomination
of this Class M-1 Certificate by the Original Class Certificate Principal
Balance) in certain monthly distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of April 1, 2006 (the “Agreement”) among the Depositor, Xxxxx
Fargo Bank, N.A., as servicer (the “Servicer”), and Deutsche Bank National Trust
Company, a national banking association, as trustee (the “Trustee”). To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Agreement. This Class M-1 Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Class M-1 Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Any
transferee of this Certificate shall be deemed to have made the representation
in Section 5.02(d) of the Agreement.
Reference
is hereby made to the further provisions of this Class M-1 Certificate set
forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Class M-1 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this Certificate
to be duly executed.
Dated:
April __, 2006
|
FREMONT
HOME LOAN TRUST 0000-0
XXXXXXXX
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
|
||
|
By:
|
||
This
is
one of the Certificates referenced
in
the
within-mentioned Agreement
By:__________________________________________
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
[Reverse
of Class M-1 Certificate]
Fremont
Home Loan Trust 2006-1
Asset-Backed
Certificates,
SERIES
2006-1
This
Certificate is one of a duly authorized issue of Certificates designated as
Fremont Home Loan Trust 2006-1, Asset-Backed Certificates, Series 2006-1 herein
collectively called the “Certificates”), and representing a beneficial ownership
interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable 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 Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register or
by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee
or
the Trustee’s agent specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee and of Holders of the requisite
percentage of the Percentage Interests of each Class of Certificates affected
by
such amendment, as specified in the Agreement. 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 therefor 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
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trustee as provided in the Pooling
and Servicing Agreement accompanied by a written instrument of transfer in
form
satisfactory to the Trustee and the Certificate Registrar 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 and evidencing the same aggregate Percentage Interest in the
Trust
will be issued to the designated transferee or transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
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,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer and 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
Trustee, the Servicer or any such agent shall be affected by any notice to
the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the Principal Balance of
the
Original Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in
whole, from the Trust the Mortgage Loans at a purchase price determined as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trustee upon the earliest of (i) the Distribution
Date on which the Certificate Principal Balances of the Regular Certificates
have been reduced to zero, (ii) the final payment or other liquidation of the
last Mortgage Loan in the Trust, (iii) the optional purchase by the Servicer
of
the Mortgage Loans as described in the Agreement and (iv) the Distribution
Date
in April 2036.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-7
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.
THIS
CERTIFICATE IS SUBORDINATE TO THE SENIOR
CERTIFICATES
AND THE
CLASS M-1 CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
ANY
TRANSFEREE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATION
IN SECTION 5.02(D) OF THE POOLING AND SERVICING AGREEMENT.
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,
AS
AMENDED (THE “CODE”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
April
1, 2006
|
|
First
Distribution Date
|
:
|
May
25, 2006
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$
22,724,000.00
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$
22,724,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
35729P
PD 6
|
|
Class
|
:
|
M-2
|
|
Assumed
Maturity Date
|
:
|
April
2036
|
Fremont
Home Loan Trust 2006-1
Asset-Backed
Certificates,
Series
2006-1
CLASS
M-2
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first lien
adjustable rate and fixed rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class M-2 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class M-2 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, or the Trustee referred to below or any of their
respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class M-2 Certificate (obtained by dividing the Denomination
of this Class M-2 Certificate by the Original Class Certificate Principal
Balance) in certain monthly distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of April 1, 2006 (the “Agreement”) among the Depositor, Xxxxx
Fargo Bank, N.A., as servicer (the “Servicer”), and Deutsche Bank National Trust
Company, a national banking association, as trustee (the “Trustee”). To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Agreement. This Class M-2 Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Class M-2 Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Any
transferee of this Certificate shall be deemed to have made the representation
in Section 5.02(d) of the Agreement.
Reference
is hereby made to the further provisions of this Class M-2 Certificate set
forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Class M-2 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this Certificate
to be duly executed.
Dated:
April __, 2006
|
FREMONT
HOME LOAN TRUST 0000-0
XXXXXXXX
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
|
||
|
By:
|
||
This
is
one of the Certificates referenced
in
the
within-mentioned Agreement
By:__________________________________________
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
[Reverse
of Class M-2 Certificate]
Fremont
Home Loan Trust 2006-1
Asset-Backed
Certificates,
SERIES
2006-1
This
Certificate is one of a duly authorized issue of Certificates designated as
Fremont Home Loan Trust 2006-1, Asset-Backed Certificates, Series 2006-1 herein
collectively called the “Certificates”), and representing a beneficial ownership
interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable 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 Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register or
by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee
or
the Trustee’s agent specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee and of Holders of the requisite
percentage of the Percentage Interests of each Class of Certificates affected
by
such amendment, as specified in the Agreement. 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 therefor 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
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trustee as provided in the Pooling
and Servicing Agreement accompanied by a written instrument of transfer in
form
satisfactory to the Trustee and the Certificate Registrar 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 and evidencing the same aggregate Percentage Interest in the
Trust
will be issued to the designated transferee or transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
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,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer and 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
Trustee, the Servicer or any such agent shall be affected by any notice to
the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the Principal Balance of
the
Original Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in
whole, from the Trust the Mortgage Loans at a purchase price determined as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trustee upon the earliest of (i) the Distribution
Date on which the Certificate Principal Balances of the Regular Certificates
have been reduced to zero, (ii) the final payment or other liquidation of the
last Mortgage Loan in the Trust, (iii) the optional purchase by the Servicer
of
the Mortgage Loans as described in the Agreement and (iv) the Distribution
Date
in April 2036.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-8
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.
THIS
CERTIFICATE IS SUBORDINATE TO THE SENIOR 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.
ANY
TRANSFEREE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATION
IN SECTION 5.02(D) OF THE POOLING AND SERVICING AGREEMENT.
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,
AS
AMENDED (THE “CODE”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
April
1, 2006
|
|
First
Distribution Date
|
:
|
May
25, 2006
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$
19,695,000.00
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$
19,695,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
35729P
PE 4
|
|
Class
|
:
|
M-3
|
|
Assumed
Maturity Date
|
:
|
April
2036
|
Fremont
Home Loan Trust 2006-1
Asset-Backed
Certificates,
Series
2006-1
CLASS
M-3
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first lien
adjustable rate and fixed rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class M-3 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class M-3 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, or the Trustee referred to below or any of their
respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class M-3 Certificate (obtained by dividing the Denomination
of this Class M-3 Certificate by the Original Class Certificate Principal
Balance) in certain monthly distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of April 1, 2006 (the “Agreement”) among the Depositor, Xxxxx
Fargo Bank, N.A., as servicer (the “Servicer”), and Deutsche Bank National Trust
Company, a national banking association, as trustee (the “Trustee”). To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Agreement. This Class M-3 Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Class M-3 Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Any
transferee of this Certificate shall be deemed to have made the representation
in Section 5.02(d) of the Agreement.
Reference
is hereby made to the further provisions of this Class M-3 Certificate set
forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Class M-3 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this Certificate
to be duly executed.
Dated:
April __, 2006
|
FREMONT
HOME LOAN TRUST 0000-0
XXXXXXXX
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
|
||
|
By:
|
||
This
is
one of the Certificates referenced
in
the
within-mentioned Agreement
By:__________________________________________
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
[Reverse
of Class M-3 Certificate]
Fremont
Home Loan Trust 2006-1
Asset-Backed
Certificates,
SERIES
2006-1
This
Certificate is one of a duly authorized issue of Certificates designated as
Fremont Home Loan Trust 2006-1, Asset-Backed Certificates, Series 2006-1 herein
collectively called the “Certificates”), and representing a beneficial ownership
interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable 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 Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register or
by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee
or
the Trustee’s agent specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee and of Holders of the requisite
percentage of the Percentage Interests of each Class of Certificates affected
by
such amendment, as specified in the Agreement. 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 therefor 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
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trustee as provided in the Pooling
and Servicing Agreement accompanied by a written instrument of transfer in
form
satisfactory to the Trustee and the Certificate Registrar 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 and evidencing the same aggregate Percentage Interest in the
Trust
will be issued to the designated transferee or transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
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,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer and 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
Trustee, the Servicer or any such agent shall be affected by any notice to
the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the Principal Balance of
the
Original Mortgage Loans as of the Cut-off Date the Servicer may purchase, in
whole, from the Trust the Mortgage Loans at a purchase price determined as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trustee upon the earliest of (i) the Distribution
Date on which the Certificate Principal Balances of the Regular Certificates
have been reduced to zero, (ii) the final payment or other liquidation of the
last Mortgage Loan in the Trust, (iii) the optional purchase by the Servicer
of
the Mortgage Loans as described in the Agreement and (iv) the Distribution
Date
in April 2036.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-9
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.
THIS
CERTIFICATE IS SUBORDINATE TO THE SENIOR 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.
ANY
TRANSFEREE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATION
IN SECTION 5.02(D) OF THE POOLING AND SERVICING AGREEMENT.
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,
AS
AMENDED (THE “CODE”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
April
1, 2006
|
|
First
Distribution Date
|
:
|
May
25, 2006
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$
18,685,000.00
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$
18,685,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
35729P
PF 1
|
|
Class
|
:
|
M-4
|
|
Assumed
Maturity Date
|
:
|
April
2036
|
Fremont
Home Loan Trust 2006-1
Asset-Backed
Certificates,
Series
2006-1
CLASS
M-4
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first lien
adjustable rate and fixed rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class M-4 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class M-4 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, or the Trustee referred to below or any of their
respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class M-4 Certificate (obtained by dividing the Denomination
of this Class M-4 Certificate by the Original Class Certificate Principal
Balance) in certain monthly distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of April 1, 2006 (the “Agreement”) among the Depositor, Xxxxx
Fargo Bank, N.A., as servicer (the “Servicer”), and Deutsche Bank National Trust
Company, a national banking association, as trustee (the “Trustee”). To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Agreement. This Class M-4 Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Class M-4 Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Any
transferee of this Certificate shall be deemed to have made the representation
in Section 5.02(d) of the Agreement.
Reference
is hereby made to the further provisions of this Class M-4 Certificate set
forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Class M-4 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this Certificate
to be duly executed.
Dated:
April __, 2006
|
FREMONT
HOME LOAN TRUST 0000-0
XXXXXXXX
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
|
||
|
By:
|
||
This
is
one of the Certificates referenced
in
the
within-mentioned Agreement
By:__________________________________________
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
[Reverse
of Class M-4 Certificate]
Fremont
Home Loan Trust 2006-1
Asset-Backed
Certificates,
SERIES
2006-1
This
Certificate is one of a duly authorized issue of Certificates designated as
Fremont Home Loan Trust 2006-1, Asset-Backed Certificates, Series 2006-1 herein
collectively called the “Certificates”), and representing a beneficial ownership
interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable 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 Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register or
by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee
or
the Trustee’s agent specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee and of Holders of the requisite
percentage of the Percentage Interests of each Class of Certificates affected
by
such amendment, as specified in the Agreement. 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 therefor 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
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trustee as provided in the Pooling
and Servicing Agreement accompanied by a written instrument of transfer in
form
satisfactory to the Trustee and the Certificate Registrar 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 and evidencing the same aggregate Percentage Interest in the
Trust
will be issued to the designated transferee or transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
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,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer and 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
Trustee, the Servicer or any such agent shall be affected by any notice to
the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the Principal Balance of
the
Original Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in
whole, from the Trust the Mortgage Loans at a purchase price determined as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trustee upon the earliest of (i) the Distribution
Date on which the Certificate Principal Balances of the Regular Certificates
have been reduced to zero, (ii) the final payment or other liquidation of the
last Mortgage Loan in the Trust, (iii) the optional purchase by the Servicer
of
the Mortgage Loans as described in the Agreement and (iv) the Distribution
Date
in April 2036.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-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.
THIS
CERTIFICATE IS SUBORDINATE TO THE SENIOR 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.
ANY
TRANSFEREE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATION
IN SECTION 5.02(D) OF THE POOLING AND SERVICING AGREEMENT.
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,
AS
AMENDED (THE “CODE”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
April
1, 2006
|
|
First
Distribution Date
|
:
|
May
25, 2006
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$
16,160,000.00
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$
16,160,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
35729P
PG 9
|
|
Class
|
:
|
M-5
|
|
Assumed
Maturity Date
|
:
|
April
2036
|
Fremont
Home Loan Trust 2006-1
Asset-Backed
Certificates,
Series
2006-1
CLASS
M-5
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first lien
adjustable rate and fixed rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class M-5 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class M-5 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, or the Trustee referred to below or any of their
respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class M-5 Certificate (obtained by dividing the Denomination
of this Class M-5 Certificate by the Original Class Certificate Principal
Balance) in certain monthly distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of April 1, 2006 (the “Agreement”) among the Depositor, Xxxxx
Fargo Bank, N.A., as servicer (the “Servicer”), and Deutsche Bank National Trust
Company, a national banking association, as trustee (the “Trustee”). To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Agreement. This Class M-5 Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Class M-5 Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Any
transferee of this Certificate shall be deemed to have made the representation
in Section 5.02(d) of the Agreement.
Reference
is hereby made to the further provisions of this Class M-5 Certificate set
forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Class M-5 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this Certificate
to be duly executed.
Dated:
April __, 2006
|
FREMONT
HOME LOAN TRUST 0000-0
XXXXXXXX
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
|
||
|
By:
|
||
This
is
one of the Certificates referenced
in
the
within-mentioned Agreement
By:__________________________________________
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
[Reverse
of Class M-5 Certificate]
Fremont
Home Loan Trust 2006-1
Asset-Backed
Certificates,
SERIES
2006-1
This
Certificate is one of a duly authorized issue of Certificates designated as
Fremont Home Loan Trust 2006-1, Asset-Backed Certificates, Series 2006-1 herein
collectively called the “Certificates”), and representing a beneficial ownership
interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable 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 Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register or
by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee
or
the Trustee’s agent specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee and of Holders of the requisite
percentage of the Percentage Interests of each Class of Certificates affected
by
such amendment, as specified in the Agreement. 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 therefor 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
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trustee as provided in the Pooling
and Servicing Agreement accompanied by a written instrument of transfer in
form
satisfactory to the Trustee and the Certificate Registrar 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 and evidencing the same aggregate Percentage Interest in the
Trust
will be issued to the designated transferee or transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
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,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer and 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
Trustee, the Servicer or any such agent shall be affected by any notice to
the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the Principal Balance of
the
Original Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in
whole, from the Trust the Mortgage Loans at a purchase price determined as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trustee upon the earliest of (i) the Distribution
Date on which the Certificate Principal Balances of the Regular Certificates
have been reduced to zero, (ii) the final payment or other liquidation of the
last Mortgage Loan in the Trust, (iii) the optional purchase by the Servicer
of
the Mortgage Loans as described in the Agreement and (iv) the Distribution
Date
in April 2036.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-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.
THIS
CERTIFICATE IS SUBORDINATE TO THE SENIOR 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.
ANY
TRANSFEREE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATION
IN SECTION 5.02(D) OF THE POOLING AND SERVICING AGREEMENT.
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,
AS
AMENDED (THE “CODE”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
April
1, 2006
|
|
First
Distribution Date
|
:
|
May
25, 2006
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$
16,160,000.00
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$
16,160,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
35729P
PH 7
|
|
Class
|
:
|
M-6
|
|
Assumed
Maturity Date
|
:
|
April
2036
|
Fremont
Home Loan Trust 2006-1
Asset-Backed
Certificates,
Series
2006-1
CLASS
M-6
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first lien
adjustable rate and fixed rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class M-6 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class M-6 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, or the Trustee referred to below or any of their
respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class M-6 Certificate (obtained by dividing the Denomination
of this Class M-6 Certificate by the Original Class Certificate Principal
Balance) in certain monthly distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of April 1, 2006 (the “Agreement”) among the Depositor, Xxxxx
Fargo Bank, N.A., as servicer (the “Servicer”), and Deutsche Bank National Trust
Company, a national banking association, as trustee (the “Trustee”). To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Agreement. This Class M-6 Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Class M-6 Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Any
transferee of this Certificate shall be deemed to have made the representation
in Section 5.02(d) of the Agreement.
Reference
is hereby made to the further provisions of this Class M-6 Certificate set
forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Class M-6 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this Certificate
to be duly executed.
Dated:
April __, 2006
|
FREMONT
HOME LOAN TRUST 0000-0
XXXXXXXX
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
|
||
|
By:
|
||
This
is
one of the Certificates referenced
in
the
within-mentioned Agreement
By:__________________________________________
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
[Reverse
of Class M-6 Certificate]
Fremont
Home Loan Trust 2006-1
Asset-Backed
Certificates,
SERIES
2006-1
This
Certificate is one of a duly authorized issue of Certificates designated as
Fremont Home Loan Trust 2006-1, Asset-Backed Certificates, Series 2006-1 herein
collectively called the “Certificates”), and representing a beneficial ownership
interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable 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 Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register or
by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee
or
the Trustee’s agent specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee and of Holders of the requisite
percentage of the Percentage Interests of each Class of Certificates affected
by
such amendment, as specified in the Agreement. 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 therefor 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
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trustee as provided in the Pooling
and Servicing Agreement accompanied by a written instrument of transfer in
form
satisfactory to the Trustee and the Certificate Registrar 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 and evidencing the same aggregate Percentage Interest in the
Trust
will be issued to the designated transferee or transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
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,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer and 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
Trustee, the Servicer or any such agent shall be affected by any notice to
the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the Principal Balance of
the
Original Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in
whole, from the Trust the Mortgage Loans at a purchase price determined as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trustee upon the earliest of (i) the Distribution
Date on which the Certificate Principal Balances of the Regular Certificates
have been reduced to zero, (ii) the final payment or other liquidation of the
last Mortgage Loan in the Trust, (iii) the optional purchase by the Servicer
of
the Mortgage Loans as described in the Agreement and (iv) the Distribution
Date
in April 2036.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-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.
THIS
CERTIFICATE IS SUBORDINATE TO THE SENIOR 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 CLASS M-6 CERTIFICATES
TO
THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
ANY
TRANSFEREE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATION
IN SECTION 5.02(D) OF THE POOLING AND SERVICING AGREEMENT.
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,
AS
AMENDED (THE “CODE”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
April
1, 2006
|
|
First
Distribution Date
|
:
|
May
25, 2006
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$
13,635,000.00
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$
13,635,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
35729P
PJ 3
|
|
Class
|
:
|
M-7
|
|
Assumed
Maturity Date
|
:
|
April
2036
|
Fremont
Home Loan Trust 2006-1
Asset-Backed
Certificates,
Series
2006-1
CLASS
M-7
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first lien
adjustable rate and fixed rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class M-7 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class M-7 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, or the Trustee referred to below or any of their
respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class M-7 Certificate (obtained by dividing the Denomination
of this Class M-7 Certificate by the Original Class Certificate Principal
Balance) in certain monthly distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of April 1, 2006 (the “Agreement”) among the Depositor, Xxxxx
Fargo Bank, N.A., as servicer (the “Servicer”), and Deutsche Bank National Trust
Company, a national banking association, as trustee (the “Trustee”). To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Agreement. This Class M-7 Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Class M-7 Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Any
transferee of this Certificate shall be deemed to have made the representation
in Section 5.02(d) of the Agreement.
Reference
is hereby made to the further provisions of this Class M-7 Certificate set
forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Class M-7 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this Certificate
to be duly executed.
Dated:
April __, 2006
|
FREMONT
HOME LOAN TRUST 0000-0
XXXXXXXX
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
|
||
|
By:
|
||
This
is
one of the Certificates referenced
in
the
within-mentioned Agreement
By:__________________________________________
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
[Reverse
of Class M-7 Certificate]
Fremont
Home Loan Trust 2006-1
Asset-Backed
Certificates,
SERIES
2006-1
This
Certificate is one of a duly authorized issue of Certificates designated as
Fremont Home Loan Trust 2006-1, Asset-Backed Certificates, Series 2006-1 herein
collectively called the “Certificates”), and representing a beneficial ownership
interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable 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 Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register or
by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee
or
the Trustee’s agent specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee and of Holders of the requisite
percentage of the Percentage Interests of each Class of Certificates affected
by
such amendment, as specified in the Agreement. 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 therefor 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
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trustee as provided in the Pooling
and Servicing Agreement accompanied by a written instrument of transfer in
form
satisfactory to the Trustee and the Certificate Registrar 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 and evidencing the same aggregate Percentage Interest in the
Trust
will be issued to the designated transferee or transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
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,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer and 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
Trustee, the Servicer or any such agent shall be affected by any notice to
the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the Principal Balance of
the
Original Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in
whole, from the Trust the Mortgage Loans at a purchase price determined as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trustee upon the earliest of (i) the Distribution
Date on which the Certificate Principal Balances of the Regular Certificates
have been reduced to zero, (ii) the final payment or other liquidation of the
last Mortgage Loan in the Trust, (iii) the optional purchase by the Servicer
of
the Mortgage Loans as described in the Agreement and (iv) the Distribution
Date
in April 2036.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-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.
THIS
CERTIFICATE IS SUBORDINATE TO THE SENIOR 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.
ANY
TRANSFEREE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATION
IN SECTION 5.02(D) OF THE POOLING AND SERVICING AGREEMENT.
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,
AS
AMENDED (THE “CODE”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
April
1, 2006
|
|
First
Distribution Date
|
:
|
May
25, 2006
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$
9,090,000.00
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$
9,090,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
35729P
PK 0
|
|
Class
|
:
|
M-8
|
|
Assumed
Maturity Date
|
:
|
April
2036
|
Fremont
Home Loan Trust 2006-1
Asset-Backed
Certificates,
Series
2006-1
CLASS
M-8
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first lien
adjustable rate and fixed rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class M-8 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class M-8 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, or the Trustee referred to below or any of their
respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class M-8 Certificate (obtained by dividing the Denomination
of this Class M-8 Certificate by the Original Class Certificate Principal
Balance) in certain monthly distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of April 1, 2006 (the “Agreement”) among the Depositor, Xxxxx
Fargo Bank, N.A., as servicer (the “Servicer”), and Deutsche Bank National Trust
Company, a national banking association, as trustee (the “Trustee”). To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Agreement. This Class M-8 Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Class M-8 Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Any
transferee of this Certificate shall be deemed to have made the representation
in Section 5.02(d) of the Agreement.
Reference
is hereby made to the further provisions of this Class M-8 Certificate set
forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Class M-8 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this Certificate
to be duly executed.
Dated:
April __, 2006
|
FREMONT
HOME LOAN TRUST 0000-0
XXXXXXXX
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
|
||
|
By:
|
||
This
is
one of the Certificates referenced
in
the
within-mentioned Agreement
By:__________________________________________
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
[Reverse
of Class M-8 Certificate]
Fremont
Home Loan Trust 2006-1
Asset-Backed
Certificates,
SERIES
2006-1
This
Certificate is one of a duly authorized issue of Certificates designated as
Fremont Home Loan Trust 2006-1, Asset-Backed Certificates, Series 2006-1 herein
collectively called the “Certificates”), and representing a beneficial ownership
interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable 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 Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register or
by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee
or
the Trustee’s agent specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee and of Holders of the requisite
percentage of the Percentage Interests of each Class of Certificates affected
by
such amendment, as specified in the Agreement. 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 therefor 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
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trustee as provided in the Pooling
and Servicing Agreement accompanied by a written instrument of transfer in
form
satisfactory to the Trustee and the Certificate Registrar 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 and evidencing the same aggregate Percentage Interest in the
Trust
will be issued to the designated transferee or transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
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,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer and 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
Trustee, the Servicer or any such agent shall be affected by any notice to
the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the Principal Balance of
the
Original Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in
whole, from the Trust the Mortgage Loans at a purchase price determined as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trustee upon the earliest of (i) the Distribution
Date on which the Certificate Principal Balances of the Regular Certificates
have been reduced to zero, (ii) the final payment or other liquidation of the
last Mortgage Loan in the Trust, (iii) the optional purchase by the Servicer
of
the Mortgage Loans as described in the Agreement and (iv) the Distribution
Date
in April 2036.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-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.
THIS
CERTIFICATE IS SUBORDINATE TO THE SENIOR 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 THE CLASS M-8 CERTIFICATES TO THE EXTENT DESCRIBED
IN
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
ANY
TRANSFEREE OF THIS CERTIFICATE SHALL BE DEEMED TO HAVE MADE THE REPRESENTATION
IN SECTION 5.02(D) OF THE POOLING AND SERVICING AGREEMENT.
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,
AS
AMENDED (THE “CODE”).
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
April
1, 2006
|
|
First
Distribution Date
|
:
|
May
25, 2006
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$
8,080,000.00
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$
8,080,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
35729P
PL 8
|
|
Class
|
:
|
M-9
|
|
Assumed
Maturity Date
|
:
|
April
2036
|
Fremont
Home Loan Trust 2006-1
Asset-Backed
Certificates,
Series
2006-1
CLASS
M-9
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first lien
adjustable rate and fixed rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class M-9 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class M-9 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, or the Trustee referred to below or any of their
respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class M-9 Certificate (obtained by dividing the Denomination
of this Class M-9 Certificate by the Original Class Certificate Principal
Balance) in certain monthly distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of April 1, 2006 (the “Agreement”) among the Depositor, Xxxxx
Fargo Bank, N.A., as servicer (the “Servicer”), and Deutsche Bank National Trust
Company, a national banking association, as trustee (the “Trustee”). To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Agreement. This Class M-10 Certificate is issued under and
is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Class M-9 Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
No
transfer of a Certificate of this Class shall be made unless such transfer
is
made pursuant to an effective registration statement under the Act and any
applicable state securities laws or is exempt from the registration requirements
under said Act and such laws. In the event that a transfer is to be made in
reliance upon an exemption from the Act and such laws, in order to assure
compliance with the Act and such laws, the Certificateholder desiring to effect
such transfer and such Certificateholder’s prospective transferee shall each
certify to the Trustee and the Depositor in writing the facts surrounding the
transfer. The Holder hereof 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.
Any
transferee of this Certificate shall be deemed to have made the representation
in Section 5.02(d) of the Agreement.
Reference
is hereby made to the further provisions of this Class M-9 Certificate set
forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Class M-9 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this Certificate
to be duly executed.
Dated:
April __, 2006
|
FREMONT
HOME LOAN TRUST 0000-0
XXXXXXXX
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
|
||
|
By:
|
||
This
is
one of the Certificates referenced
in
the
within-mentioned Agreement
By:__________________________________________
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
[Reverse
of Class M-9 Certificate]
Fremont
Home Loan Trust 2006-1
Asset-Backed
Certificates,
SERIES
2006-1
This
Certificate is one of a duly authorized issue of Certificates designated as
Fremont Home Loan Trust 2006-1, Asset-Backed Certificates, Series 2006-1 herein
collectively called the “Certificates”), and representing a beneficial ownership
interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable 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 Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register or
by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee
or
the Trustee’s agent specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee and of Holders of the requisite
percentage of the Percentage Interests of each Class of Certificates affected
by
such amendment, as specified in the Agreement. 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 therefor 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
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trustee as provided in the Pooling
and Servicing Agreement accompanied by a written instrument of transfer in
form
satisfactory to the Trustee and the Certificate Registrar 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 and evidencing the same aggregate Percentage Interest in the
Trust
will be issued to the designated transferee or transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
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,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer and 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
Trustee, the Servicer or any such agent shall be affected by any notice to
the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the Principal Balance of
the
Original Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in
whole, from the Trust the Mortgage Loans at a purchase price determined as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trustee upon the earliest of (i) the Distribution
Date on which the Certificate Principal Balances of the Regular Certificates
have been reduced to zero, (ii) the final payment or other liquidation of the
last Mortgage Loan in the Trust, (iii) the optional purchase by the Servicer
of
the Mortgage Loans as described in the Agreement and (iv) the Distribution
Date
in April 2036.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-15
FORM
OF
CLASS B-1 CERTIFICATES
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.
THIS
CERTIFICATE IS SUBORDINATE TO THE SENIOR CERTIFICATES AND THE MEZZANINE
CERTIFICATES, TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
NO
TRANSFER OF THIS CERTIFICATE SHALL BE MADE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986 (THE “CODE”), EXCEPT IN ACCORDANCE WITH SECTION 5.02(D) OF
THE AGREEMENT.
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 CODE.
THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT TO A PERSON THAT IS
A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A,
IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
IN
WHICH THE TRANSFEREE MAKES OR IS DEEMED TO MAKE CERTAIN REPRESENTATIONS AND
UNDERTAKINGS SET FORTH IN THE AGREEMENT AND IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
April
1, 2006
|
|
First
Distribution Date
|
:
|
May
25, 2006
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$
10,100,000.00
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$
10,100,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
35729P
PM 6
|
|
Class
|
:
|
B-1
|
|
Assumed
Maturity Date
|
:
|
April
2036
|
Fremont
Home Loan Trust 2006-1
Asset-Backed
Certificates,
Series
2006-1
CLASS
B-1
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first lien
adjustable rate and fixed rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class B-1 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class B-1 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, or the Trustee referred to below or any of their
respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class B-1 Certificate (obtained by dividing the Denomination
of this Class B-1 Certificate by the Original Class Certificate Principal
Balance) in certain monthly distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of April 1, 2006 (the “Agreement”) among the Depositor, Xxxxx
Fargo Bank, N.A., as servicer (the “Servicer”), and Deutsche Bank National Trust
Company, a national banking association, as trustee (the “Trustee”). To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Agreement. This Class M-10 Certificate is issued under and
is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Class B-1 Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
No
transfer of a Certificate of this Class shall be made unless such transfer
is
made pursuant to an effective registration statement under the Act and any
applicable state securities laws or is exempt from the registration requirements
under said Act and such laws. In the event that a transfer is to be made in
reliance upon an exemption from the Act and such laws, in order to assure
compliance with the Act and such laws, the Certificateholder desiring to effect
such transfer and such Certificateholder’s prospective transferee shall each
certify to the Trustee and the Depositor in writing the facts surrounding the
transfer. The Holder hereof 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.
No
transfer of this Certificate shall be made to a Plan subject to ERISA or Section
4975 of the Code, any Person acting, directly or indirectly, on behalf of any
such Plan or any person using Plan Assets to acquire this Certificate except
in
accordance with Section 5.02(d) of the Agreement.
Reference
is hereby made to the further provisions of this Class B-1 Certificate set
forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Class B-1 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this Certificate
to be duly executed.
Dated:
April __, 2006
|
FREMONT
HOME LOAN TRUST 0000-0
|
||
|
XXXXXXXX
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
|
||
|
By:
|
||
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
|
|
By:
|
|
|
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
|
|
[Reverse
of Class B-1 Certificate]
Fremont
Home Loan Trust 2006-1
Asset-Backed
Certificates,
SERIES
2006-1
This
Certificate is one of a duly authorized issue of Certificates designated as
Fremont Home Loan Trust 2006-1, Asset-Backed Certificates, Series 2006-1 herein
collectively called the “Certificates”), and representing a beneficial ownership
interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable 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 Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register or
by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee
or
the Trustee’s agent specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee and of Holders of the requisite
percentage of the Percentage Interests of each Class of Certificates affected
by
such amendment, as specified in the Agreement. 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 therefor 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
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trustee as provided in the Pooling
and Servicing Agreement accompanied by a written instrument of transfer in
form
satisfactory to the Trustee and the Certificate Registrar 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 and evidencing the same aggregate Percentage Interest in the
Trust
will be issued to the designated transferee or transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
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,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer and 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
Trustee, the Servicer or any such agent shall be affected by any notice to
the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the Principal Balance of
the
Original Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in
whole, from the Trust the Mortgage Loans at a purchase price determined as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trustee upon the earliest of (i) the Distribution
Date on which the Certificate Principal Balances of the Regular Certificates
have been reduced to zero, (ii) the final payment or other liquidation of the
last Mortgage Loan in the Trust, (iii) the optional purchase by the Servicer
of
the Mortgage Loans as described in the Agreement and (iv) the Distribution
Date
in April 2036.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:______
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-16
FORM
OF
CLASS B-2 CERTIFICATES
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.
THIS
CERTIFICATE IS SUBORDINATE TO THE SENIOR CERTIFICATES AND THE MEZZANINE
CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
NO
TRANSFER OF THIS CERTIFICATE SHALL BE MADE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986 (THE “CODE”), EXCEPT IN ACCORDANCE WITH SECTION 5.02(D) OF
THE AGREEMENT.
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 CODE.
THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT TO A PERSON THAT IS
A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A,
IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
IN
WHICH THE TRANSFEREE MAKES OR IS DEEMED TO MAKE CERTAIN REPRESENTATIONS AND
UNDERTAKINGS SET FORTH IN THE AGREEMENT AND IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
April
1, 2006
|
|
First
Distribution Date
|
:
|
May
25, 2006
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$
6,565,000.00
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$
6,565,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
Variable
|
|
CUSIP
|
:
|
35729P
PN 4
|
|
Class
|
:
|
B-2
|
|
Assumed
Maturity Date
|
:
|
April
2036
|
Fremont
Home Loan Trust 2006-1
Asset-Backed
Certificates,
Series
2006-1
CLASS
B-2
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first lien
adjustable rate and fixed rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class B-2 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class B-2 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, or the Trustee referred to below or any of their
respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class B-2 Certificate (obtained by dividing the Denomination
of this Class B-2 Certificate by the Original Class Certificate Principal
Balance) in certain monthly distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of April 1, 2006 (the “Agreement”) among the Depositor, Xxxxx
Fargo Bank, N.A., as servicer (the “Servicer”), and Deutsche Bank National Trust
Company, a national banking association, as trustee (the “Trustee”). To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Agreement. This Class M-10 Certificate is issued under and
is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Class B-2 Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
No
transfer of a Certificate of this Class shall be made unless such transfer
is
made pursuant to an effective registration statement under the Act and any
applicable state securities laws or is exempt from the registration requirements
under said Act and such laws. In the event that a transfer is to be made in
reliance upon an exemption from the Act and such laws, in order to assure
compliance with the Act and such laws, the Certificateholder desiring to effect
such transfer and such Certificateholder’s prospective transferee shall each
certify to the Trustee and the Depositor in writing the facts surrounding the
transfer. The Holder hereof 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.
No
transfer of this Certificate shall be made to a Plan subject to ERISA or Section
4975 of the Code, any Person acting, directly or indirectly, on behalf of any
such Plan or any person using Plan Assets to acquire this Certificate except
in
accordance with Section 5.02(d) of the Agreement.
Reference
is hereby made to the further provisions of this Class B-2 Certificate set
forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Class B-2 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this Certificate
to be duly executed.
Dated:
April __, 2006
|
FREMONT
HOME LOAN TRUST 0000-0
|
||
|
XXXXXXXX
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
|
||
|
By:
|
||
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
|
|
By:
|
|
|
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
|
|
[Reverse
of Class B-2 Certificate]
Fremont
Home Loan Trust 2006-1
Asset-Backed
Certificates,
SERIES
2006-1
This
Certificate is one of a duly authorized issue of Certificates designated as
Fremont Home Loan Trust 2006-1, Asset-Backed Certificates, Series 2006-1 herein
collectively called the “Certificates”), and representing a beneficial ownership
interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable 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 Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register or
by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee
or
the Trustee’s agent specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee and of Holders of the requisite
percentage of the Percentage Interests of each Class of Certificates affected
by
such amendment, as specified in the Agreement. 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 therefor 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
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trustee as provided in the Pooling
and Servicing Agreement accompanied by a written instrument of transfer in
form
satisfactory to the Trustee and the Certificate Registrar 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 and evidencing the same aggregate Percentage Interest in the
Trust
will be issued to the designated transferee or transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
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,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer and 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
Trustee, the Servicer or any such agent shall be affected by any notice to
the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the Principal Balance of
the
Original Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in
whole, from the Trust the Mortgage Loans at a purchase price determined as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trustee upon the earliest of (i) the Distribution
Date on which the Certificate Principal Balances of the Regular Certificates
have been reduced to zero, (ii) the final payment or other liquidation of the
last Mortgage Loan in the Trust, (iii) the optional purchase by the Servicer
of
the Mortgage Loans as described in the Agreement and (iv) the Distribution
Date
in April 2036.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:______
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-17
FORM
OF
CLASS B-3 CERTIFICATES
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.
THIS
CERTIFICATE IS SUBORDINATE TO THE SENIOR CERTIFICATES AND THE MEZZANINE
CERTIFICATES, TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
NO
TRANSFER OF THIS CERTIFICATE SHALL BE MADE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986 (THE “CODE”), EXCEPT IN ACCORDANCE WITH SECTION 5.02(D) OF
THE AGREEMENT.
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 CODE.
THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT TO A PERSON THAT IS
A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A,
IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
IN
WHICH THE TRANSFEREE MAKES OR IS DEEMED TO MAKE CERTAIN REPRESENTATIONS AND
UNDERTAKINGS SET FORTH IN THE AGREEMENT AND IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
April
1, 2006
|
|
First
Distribution Date
|
:
|
May
25, 2006
|
|
Initial
Certificate Principal Balance of this Certificate
(“Denomination”)
|
:
|
$
7,575,000.00
|
|
Original
Class Certificate Principal Balance of this Class
|
:
|
$
7,575,000.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Pass-Through
Rate
|
:
|
5.0000%
per annum
|
|
CUSIP
|
:
|
35729P
PP 9
|
|
Class
|
:
|
B-3
|
|
Assumed
Maturity Date
|
:
|
April
2036
|
Fremont
Home Loan Trust 2006-1
Asset-Backed
Certificates,
Series
2006-1
CLASS
B-3
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first lien
adjustable rate and fixed rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class B-3 Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class B-3 Certificate does not
evidence an obligation of, or an interest in, and is not guaranteed by the
Depositor, the Servicer, or the Trustee referred to below or any of their
respective affiliates.
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class B-3 Certificate (obtained by dividing the Denomination
of this Class B-3 Certificate by the Original Class Certificate Principal
Balance) in certain monthly distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of April 1, 2006 (the “Agreement”) among the Depositor, Xxxxx
Fargo Bank, N.A., as servicer (the “Servicer”), and Deutsche Bank National Trust
Company, a national banking association, as trustee (the “Trustee”). To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Agreement. This Class M-10 Certificate is issued under and
is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Class B-3 Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
No
transfer of a Certificate of this Class shall be made unless such transfer
is
made pursuant to an effective registration statement under the Act and any
applicable state securities laws or is exempt from the registration requirements
under said Act and such laws. In the event that a transfer is to be made in
reliance upon an exemption from the Act and such laws, in order to assure
compliance with the Act and such laws, the Certificateholder desiring to effect
such transfer and such Certificateholder’s prospective transferee shall each
certify to the Trustee and the Depositor in writing the facts surrounding the
transfer. The Holder hereof 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.
No
transfer of this Certificate shall be made to a Plan subject to ERISA or Section
4975 of the Code, any Person acting, directly or indirectly, on behalf of any
such Plan or any person using Plan Assets to acquire this Certificate except
in
accordance with Section 5.02(d) of the Agreement.
Reference
is hereby made to the further provisions of this Class B-3 Certificate set
forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Class B-3 Certificate shall not be entitled to any benefit under the Agreement
or be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this Certificate
to be duly executed.
Dated:
April __, 2006
|
FREMONT
HOME LOAN TRUST 0000-0
|
||
|
XXXXXXXX
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
|
||
|
By:
|
||
|
This
is one of the Certificates referenced
in
the within-mentioned Agreement
|
|
|
By:
|
|
|
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
|
|
[Reverse
of Class B-3 Certificate]
Fremont
Home Loan Trust 2006-1
Asset-Backed
Certificates,
SERIES
2006-1
This
Certificate is one of a duly authorized issue of Certificates designated as
Fremont Home Loan Trust 2006-1, Asset-Backed Certificates, Series 2006-1 herein
collectively called the “Certificates”), and representing a beneficial ownership
interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable 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 Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register or
by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee
or
the Trustee’s agent specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee and of Holders of the requisite
percentage of the Percentage Interests of each Class of Certificates affected
by
such amendment, as specified in the Agreement. 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 therefor 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
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trustee as provided in the Pooling
and Servicing Agreement accompanied by a written instrument of transfer in
form
satisfactory to the Trustee and the Certificate Registrar 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 and evidencing the same aggregate Percentage Interest in the
Trust
will be issued to the designated transferee or transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
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,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer and 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
Trustee, the Servicer or any such agent shall be affected by any notice to
the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the Principal Balance of
the
Original Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in
whole, from the Trust the Mortgage Loans at a purchase price determined as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trustee upon the earliest of (i) the Distribution
Date on which the Certificate Principal Balances of the Regular Certificates
have been reduced to zero, (ii) the final payment or other liquidation of the
last Mortgage Loan in the Trust, (iii) the optional purchase by the Servicer
of
the Mortgage Loans as described in the Agreement and (iv) the Distribution
Date
in April 2036.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
|
FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
|
|
|
unto
|
|
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-18
FORM
OF
CLASS C CERTIFICATES
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,
AS
AMENDED (THE “CODE”).
THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “ACT”). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT REGISTRATION
THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE PROVISIONS
OF
THE AGREEMENT REFERRED TO HEREIN.
THIS
CERTIFICATE IS SUBORDINATE TO THE SENIOR CERTIFICATES AND THE MEZZANINE
CERTIFICATES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “ACT”). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT REGISTRATION
THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE PROVISIONS
OF
THE AGREEMENT REFERRED TO HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE CODE SHALL BE MADE
EXCEPT IN COMPLIANCE WITH THE PROCEDURES DESCRIBED HEREIN.
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
April
1, 2006
|
|
First
Distribution Date
|
:
|
May
25, 2006
|
|
Initial
Certificate Principal Balance
of
this Certificate (“Denomination”)
|
:
|
$
14,644,461.81
|
|
Original
Class Certificate
Principal
Balance of this Class
|
:
|
$
14,644,461.81
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Class
|
:
|
C
|
Fremont
Home Loan Trust 2006-1
Asset-Backed
Certificates,
Series
2006-1
CLASS
C
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first lien
adjustable rate and fixed rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class C Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class C Certificate does not evidence
an obligation of, or an interest in, and is not guaranteed by the Depositor,
the
Servicer, or the Trustee referred to below or any of their respective
affiliates.
This
certifies that GREENWICH CAPITAL MARKETS, INC. is the registered owner of the
Percentage Interest evidenced by this Class C Certificate (obtained by dividing
the Denomination of this Class C Certificate by the Original Class Certificate
Principal Balance) in certain distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of April 1, 2006 (the “Agreement”) among the Depositor, Xxxxx
Fargo Bank, N.A., as servicer (the “Servicer”), and Deutsche Bank National Trust
Company, a national banking association, as trustee (the “Trustee”). To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Agreement. This Class C Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Class C Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
No
transfer of a Certificate of this Class shall be made unless such transfer
is
made pursuant to an effective registration statement under the Act and any
applicable state securities laws or is exempt from the registration requirements
under said Act and such laws. In the event that a transfer is to be made in
reliance upon an exemption from the Act and such laws, in order to assure
compliance with the Act and such laws, the Certificateholder desiring to effect
such transfer and such Certificateholder’s prospective transferee shall each
certify to the Trustee and the Depositor in writing the facts surrounding the
transfer. In the event that such a transfer is not to be made pursuant to Rule
144A of the Act, there shall be delivered to the Trustee and the Depositor
of an
Opinion of Counsel that such transfer may be made pursuant to an exemption
from
the Act, which Opinion of Counsel shall not be obtained at the expense of the
Trustee, the Servicer or the Depositor; or there shall be delivered to the
Trustee and the Depositor a transferor certificate by the transferor and an
investment letter shall be executed by the transferee. The Holder hereof
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.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any person using Plan Assets to acquire this Certificate shall be made except
in
accordance with Section 5.02(d) of the Agreement.
Reference
is hereby made to the further provisions of this Class C Certificate set forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Class C Certificate shall not be entitled to any benefit under the Agreement
or
be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this Certificate
to be duly executed.
Dated:
April __, 2006
|
FREMONT
HOME LOAN TRUST 0000-0
XXXXXXXX
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
|
||
|
By:
|
||
This
is
one of the Certificates referenced
in
the
within-mentioned Agreement
By:__________________________________________
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
[Reverse
of Class C Certificate]
Fremont
Home Loan Trust 2006-1
Asset-Backed
Certificates,
SERIES
2006-1
This
Certificate is one of a duly authorized issue of Certificates designated as
Fremont Home Loan Trust 2006-1, Asset-Backed Certificates, Series 2006-1 (herein
collectively called the “Certificates”), and representing a beneficial ownership
interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable 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 Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register or
by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee
or
the Trustee’s agent specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee and of Holders of the requisite
percentage of the Percentage Interests of each Class of Certificates affected
by
such amendment, as specified in the Agreement. 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 therefor 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
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trustee as provided in the Pooling
and Servicing Agreement accompanied by a written instrument of transfer in
form
satisfactory to the Trustee and the Certificate Registrar 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 and evidencing the same aggregate Percentage Interest in the
Trust
will be issued to the designated transferee or transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
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,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer and 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
Trustee, the Servicer or any such agent shall be affected by any notice to
the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the Principal Balance of
the
Original Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in
whole, from the Trust the Mortgage Loans at a purchase price determined as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trustee upon the earliest of (i) the Distribution
Date on which the Certificate Principal Balances of the Regular Certificates
have been reduced to zero, (ii) the final payment or other liquidation of the
last Mortgage Loan in the Trust, (iii) the optional purchase by the Servicer
of
the Mortgage Loans as described in the Agreement and (iv) the Distribution
Date
in April 2036.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-19
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,
AS
AMENDED (THE “CODE”).
THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “ACT”). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT REGISTRATION
THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE PROVISIONS
OF
THE AGREEMENT REFERRED TO HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE CODE SHALL BE MADE
EXCEPT IN COMPLIANCE WITH THE PROCEDURES DESCRIBED HEREIN.
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
April
1, 2006
|
|
First
Distribution Date
|
:
|
May
25, 2006
|
|
Initial
Certificate Principal Balance
of
this Certificate (“Denomination”)
|
:
|
$100.00
|
|
Original
Class Certificate
Principal
Balance of this Class
|
:
|
$100.00
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Class
|
:
|
P
|
Fremont
Home Loan Trust 2006-1
Asset-Backed
Certificates,
Series
2006-1
CLASS
P
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting of first lien
adjustable rate and fixed rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
Principal
in respect of this Certificate is distributable monthly as set forth herein.
Accordingly, the Certificate Principal Balance of this Class P Certificate
at
any time may be less than the Initial Certificate Principal Balance set forth
on
the face hereof, as described herein. This Class P Certificate does not evidence
an obligation of, or an interest in, and is not guaranteed by the Depositor,
the
Servicer, or the Trustee referred to below or any of their respective
affiliates.
This
certifies that GREENWICH CAPITAL MARKETS, INC. is the registered owner of the
Percentage Interest evidenced by this Class P Certificate (obtained by dividing
the Denomination of this Class P Certificate by the Original Class Certificate
Principal Balance) in certain distributions with respect to a Trust consisting
primarily of the Mortgage Loans deposited by Financial Asset Securities Corp.
(the “Depositor”). The Trust was created pursuant to a Pooling and Servicing
Agreement dated as of April 1, 2006 (the “Agreement”) among the Depositor, Xxxxx
Fargo Bank, N.A., as servicer (the “Servicer”), and Deutsche Bank National Trust
Company, a national banking association, as trustee (the “Trustee”). To the
extent not defined herein, the capitalized terms used herein have the meanings
assigned in the Agreement. This Class P Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Class P Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
This
Certificate does not have a pass-through rate and will be entitled to
distributions only to the extent set forth in the Agreement.
No
transfer of a Certificate of this Class shall be made unless such transfer
is
made pursuant to an effective registration statement under the Act and any
applicable state securities laws or is exempt from the registration requirements
under said Act and such laws. In the event that a transfer is to be made in
reliance upon an exemption from the Act and such laws, in order to assure
compliance with the Act and such laws, the Certificateholder desiring to effect
such transfer and such Certificateholder’s prospective transferee shall each
certify to the Trustee and the Depositor in writing the facts surrounding the
transfer. In the event that such a transfer is not to be made pursuant to Rule
144A of the Act, there shall be delivered to the Trustee and the Depositor
of an
Opinion of Counsel that such transfer may be made pursuant to an exemption
from
the Act, which Opinion of Counsel shall not be obtained at the expense of the
Trustee, the Servicer or the Depositor; or there shall be delivered to the
Trustee and the Depositor a transferor certificate by the transferor and an
investment letter shall be executed by the transferee. The Holder hereof
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.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any person using Plan Assets to acquire this Certificate shall be made except
in
accordance with Section 5.02(d) of the Agreement.
Reference
is hereby made to the further provisions of this Class P Certificate set forth
on the reverse hereof, which further provisions shall for all purposes have
the
same effect as if set forth at this place.
This
Class P Certificate shall not be entitled to any benefit under the Agreement
or
be valid for any purpose unless manually countersigned by an authorized
signatory of the Trustee.
IN
WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this Certificate
to be duly executed.
Dated:
April __, 2006
|
FREMONT
HOME LOAN TRUST 0000-0
XXXXXXXX
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
|
||
|
By:
|
||
This
is
one of the Certificates referenced
in
the
within-mentioned Agreement
By:__________________________________________
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
[Reverse
of Class P Certificate]
Fremont
Home Loan Trust 2006-1
Asset-Backed
Certificates,
SERIES
2006-1
This
Certificate is one of a duly authorized issue of Certificates designated as
Fremont Home Loan Trust 2006-1, Asset-Backed Certificates, Series 2006-1 (herein
collectively called the “Certificates”), and representing a beneficial ownership
interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable 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 Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register or
by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee
or
the Trustee’s agent specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee and of Holders of the requisite
percentage of the Percentage Interests of each Class of Certificates affected
by
such amendment, as specified in the Agreement. 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 therefor 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
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trustee as provided in the Pooling
and Servicing Agreement accompanied by a written instrument of transfer in
form
satisfactory to the Trustee and the Certificate Registrar 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 and evidencing the same aggregate Percentage Interest in the
Trust
will be issued to the designated transferee or transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
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,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer and 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
Trustee, the Servicer or any such agent shall be affected by any notice to
the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the Principal Balance of
the
Original Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in
whole, from the Trust the Mortgage Loans at a purchase price determined as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trustee upon the earliest of (i) the Distribution
Date on which the Certificate Principal Balances of the Regular Certificates
have been reduced to zero, (ii) the final payment or other liquidation of the
last Mortgage Loan in the Trust, (iii) the optional purchase by the Servicer
of
the Mortgage Loans as described in the Agreement and (iv) the Distribution
Date
in April 2036.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-20
FORM
OF
CLASS R CERTIFICATE
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “RESIDUAL 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,
AS
AMENDED (THE “CODE”).
THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “ACT”). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT REGISTRATION
THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE PROVISIONS
OF
THE AGREEMENT REFERRED TO HEREIN.
THIS
CLASS R CERTIFICATE HAS NO PRINCIPAL BALANCE, DOES NOT BEAR INTEREST AND WILL
NOT RECEIVE ANY DISTRIBUTIONS EXCEPT AS PROVIDED HEREIN.
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED
TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE WITH
THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE CODE SHALL BE MADE
EXCEPT IN COMPLIANCE WITH THE PROCEDURES DESCRIBED HEREIN.
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
April
1, 2006
|
|
First
Distribution Date
|
:
|
May
25, 2006
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Class
|
:
|
R
|
Fremont
Home Loan Trust 2006-1
Asset-Backed
Certificates,
Series
2006-1
CLASS
R
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting primarily of
a
pool of first lien adjustable rate and fixed rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Servicer or the Trustee referred to below
or
any of their respective affiliates.
This
certifies that GREENWICH CAPITAL MARKETS, INC. is the registered owner of the
Percentage Interest evidenced by this Certificate specified above in the
interest represented by all Certificates of the Class to which this Certificate
belongs in a Trust consisting primarily of the Mortgage Loans deposited by
Financial Asset Securities Corp. (the “Depositor”). The Trust was created
pursuant to a Pooling and Servicing Agreement dated as of April 1, 2006 (the
“Agreement”) among the Depositor, Xxxxx Fargo Bank, N.A., as servicer (the
“Servicer”), and Deutsche Bank National Trust Company, a national banking
association, as trustee (the “Trustee”). 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.
This
Certificate does not have a principal balance or pass-through rate and will
be
entitled to distributions only to the extent set forth in the Agreement. In
addition, any distribution of the proceeds of any remaining assets of the Trust
will be made only upon presentment and surrender of this Certificate at the
Office or the office or agency maintained by the Trustee.
No
transfer of a Certificate of this Class shall be made unless such transfer
is
made pursuant to an effective registration statement under the Act and any
applicable state securities laws or is exempt from the registration requirements
under said Act and such laws. In the event that a transfer is to be made in
reliance upon an exemption from the Act and such laws, in order to assure
compliance with the Act and such laws, the Certificateholder desiring to effect
such transfer and such Certificateholder’s prospective transferee shall each
certify to the Trustee and the Depositor in writing the facts surrounding the
transfer. In the event that such a transfer is not to be made pursuant to Rule
144A of the Act, there shall be delivered to the Trustee and the Depositor
of an
Opinion of Counsel that such transfer may be made pursuant to an exemption
from
the Act, which Opinion of Counsel shall not be obtained at the expense of the
Trustee, the Servicer or the Depositor; or there shall be delivered to the
Trustee and the Depositor a transferor certificate by the transferor and an
investment letter shall be executed by the transferee. The Holder hereof
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.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any person using Plan Assets to acquire this Certificate shall be made except
in
accordance with Section 5.02(d) of the Agreement.
Each
Holder of this Certificate will be deemed to have agreed to be bound by the
restrictions of the Agreement, including but not limited to the restrictions
that (i) each person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee, (ii) no Ownership Interest in this
Certificate may be transferred without delivery to the Trustee of (a) a transfer
affidavit of the proposed transferee and (b) a transfer certificate of the
transferor, each of such documents to be in the form described in the Agreement,
(iii) each person holding or acquiring any Ownership Interest in this
Certificate must agree to require a transfer affidavit and to deliver a transfer
certificate to the Trustee as required pursuant to the Agreement, (iv) each
person holding or acquiring an Ownership Interest in this Certificate must
agree
not to transfer an Ownership Interest in this Certificate if it has actual
knowledge that the proposed transferee is not a Permitted Transferee and (v)
any
attempted or purported transfer of any Ownership Interest in this Certificate
in
violation of such restrictions will be absolutely null and void and will vest
no
rights in the purported transferee. Pursuant to the Agreement, The Trustee
will
provide the Internal Revenue Service and any pertinent persons with the
information needed to compute the tax imposed under the applicable tax laws
on
transfers of residual interests to disqualified organizations, if any person
other than a Permitted Transferee acquires an Ownership Interest on a Class
R
Certificate in violation of the restrictions mentioned above.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually countersigned by an authorized officer of the
Trustee.
IN
WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this Certificate
to be duly executed.
Dated:
April __, 2006
|
FREMONT
HOME LOAN TRUST 0000-0
XXXXXXXX
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
|
||
|
By:
|
||
This
is
one of the Certificates referenced
in
the
within-mentioned Agreement
By:__________________________________________
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
[Reverse
of Class R Certificate]
Fremont
Home Loan Trust 2006-1
Asset-Backed
Certificates,
SERIES
2006-1
This
Certificate is one of a duly authorized issue of Certificates designated as
Fremont Home Loan Trust 2006-1 Asset-Backed Certificates, Series 2006-1 (herein
collectively called the “Certificates”), and representing a beneficial ownership
interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable 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 Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register or
by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee
or
the Trustee’s agent specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee and of Holders of the requisite
percentage of the Percentage Interests of each Class of Certificates affected
by
such amendment, as specified in the Agreement. 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 therefor 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
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trustee as provided in the Pooling
and Servicing Agreement accompanied by a written instrument of transfer in
form
satisfactory to the Trustee and the Certificate Registrar 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 and evidencing the same aggregate Percentage Interest in the
Trust
will be issued to the designated transferee or transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
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,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer and 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
Trustee, the Servicer or any such agent shall be affected by any notice to
the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the Principal Balance of
the
Original Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in
whole, from the Trust the Mortgage Loans at a purchase price determined as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trustee upon the earliest of (i) the Distribution
Date on which the Certificate Principal Balances of the Regular Certificates
have been reduced to zero, (ii) the final payment or other liquidation of the
last Mortgage Loan in the Trust, (iii) the optional purchase by the Servicer
of
the Mortgage Loans as described in the Agreement and (iv) the Distribution
Date
in April 2036.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
A-21
FORM
OF
CLASS R-X CERTIFICATES
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “RESIDUAL 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,
AS
AMENDED (THE “CODE”).
THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “ACT”). ANY RESALE OR TRANSFER OF THIS CERTIFICATE WITHOUT REGISTRATION
THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPTED FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE PROVISIONS
OF
THE AGREEMENT REFERRED TO HEREIN.
THIS
CLASS R-X CERTIFICATE HAS NO PRINCIPAL BALANCE, DOES NOT BEAR INTEREST AND
WILL
NOT RECEIVE ANY DISTRIBUTIONS EXCEPT AS PROVIDED HEREIN.
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED
TRANSFEREE DELIVERS TO THE TRUSTEE A TRANSFER AFFIDAVIT IN ACCORDANCE WITH
THE
PROVISIONS OF THE AGREEMENT REFERRED TO HEREIN.
NO
TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT (EACH A “PLAN”) SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE CODE SHALL BE MADE
EXCEPT IN COMPLIANCE WITH THE PROCEDURES DESCRIBED HEREIN.
|
Certificate
No.
|
:
|
1
|
|
Cut-off
Date
|
:
|
April
1, 2006
|
|
First
Distribution Date
|
:
|
May
25, 2006
|
|
Percentage
Interest
|
:
|
100.00%
|
|
Class
|
:
|
R-X
|
Fremont
Home Loan Trust 2006-1
Asset-Backed
Certificates,
Series
2006-1
CLASS
R-X
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust consisting primarily of
a
pool of first lien adjustable rate and fixed rate mortgage loans (the “Mortgage
Loans”)
FINANCIAL
ASSET SECURITIES CORP., AS DEPOSITOR
This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Servicer or the Trustee referred to below
or
any of their respective affiliates.
This
certifies that GREENWICH CAPITAL MARKETS, INC. is the registered owner of the
Percentage Interest evidenced by this Certificate specified above in the
interest represented by all Certificates of the Class to which this Certificate
belongs in a Trust consisting primarily of the Mortgage Loans deposited by
Financial Asset Securities Corp. (the “Depositor”). The Trust was created
pursuant to a Pooling and Servicing Agreement dated as of April 1, 2006 (the
“Agreement”) among the Depositor, Xxxxx Fargo Bank, N.A., as servicer (the
“Servicer”), and Deutsche Bank National Trust Company, a national banking
association, as trustee (the “Trustee”). 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.
This
Certificate does not have a principal balance or pass-through rate and will
be
entitled to distributions only to the extent set forth in the Agreement. In
addition, any distribution of the proceeds of any remaining assets of the Trust
will be made only upon presentment and surrender of this Certificate at the
Office or the office or agency maintained by the Trustee.
No
transfer of a Certificate of this Class shall be made unless such transfer
is
made pursuant to an effective registration statement under the Act and any
applicable state securities laws or is exempt from the registration requirements
under said Act and such laws. In the event that a transfer is to be made in
reliance upon an exemption from the Act and such laws, in order to assure
compliance with the Act and such laws, the Certificateholder desiring to effect
such transfer and such Certificateholder’s prospective transferee shall each
certify to the Trustee and the Depositor in writing the facts surrounding the
transfer. In the event that such a transfer is not to be made pursuant to Rule
144A of the Act, there shall be delivered to the Trustee and the Depositor
of an
Opinion of Counsel that such transfer may be made pursuant to an exemption
from
the Act, which Opinion of Counsel shall not be obtained at the expense of the
Trustee, the Servicer or the Depositor; or there shall be delivered to the
Trustee and the Depositor a transferor certificate by the transferor and an
investment letter shall be executed by the transferee. The Holder hereof
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.
No
transfer of this Certificate to a Plan subject to ERISA or Section 4975 of
the
Code, any Person acting, directly or indirectly, on behalf of any such Plan
or
any person using Plan Assets to acquire this Certificate shall be made except
in
accordance with Section 5.02(d) of the Agreement.
Each
Holder of this Certificate will be deemed to have agreed to be bound by the
restrictions of the Agreement, including but not limited to the restrictions
that (i) each person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee, (ii) no Ownership Interest in this
Certificate may be transferred without delivery to the Trustee of (a) a transfer
affidavit of the proposed transferee and (b) a transfer certificate of the
transferor, each of such documents to be in the form described in the Agreement,
(iii) each person holding or acquiring any Ownership Interest in this
Certificate must agree to require a transfer affidavit and to deliver a transfer
certificate to the Trustee as required pursuant to the Agreement, (iv) each
person holding or acquiring an Ownership Interest in this Certificate must
agree
not to transfer an Ownership Interest in this Certificate if it has actual
knowledge that the proposed transferee is not a Permitted Transferee and (v)
any
attempted or purported transfer of any Ownership Interest in this Certificate
in
violation of such restrictions will be absolutely null and void and will vest
no
rights in the purported transferee. Pursuant to the Agreement, The Trustee
will
provide the Internal Revenue Service and any pertinent persons with the
information needed to compute the tax imposed under the applicable tax laws
on
transfers of residual interests to disqualified organizations, if any person
other than a Permitted Transferee acquires an Ownership Interest on a Class
R-X
Certificate in violation of the restrictions mentioned above.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually countersigned by an authorized officer of the
Trustee.
IN
WITNESS WHEREOF, the Trustee on behalf of the Trust has caused this Certificate
to be duly executed.
Dated:
April __, 2006
|
FREMONT
HOME LOAN TRUST 0000-0
XXXXXXXX
BANK NATIONAL TRUST COMPANY, not in its individual capacity, but
solely as
Trustee
|
||
|
By:
|
||
This
is
one of the Certificates referenced
in
the
within-mentioned Agreement
By:__________________________________________
Authorized
Signatory of
Deutsche
Bank National Trust Company,
as
Trustee
[Reverse
of Class R-X Certificate]
Fremont
Home Loan Trust 2006-1
Asset-Backed
Certificates,
SERIES
2006-1
This
Certificate is one of a duly authorized issue of Certificates designated as
Fremont Home Loan Trust 2006-1, Asset-Backed Certificates, Series 2006-1 (herein
collectively called the “Certificates”), and representing a beneficial ownership
interest in the Trust created by the Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, a distribution will be made on the 25th day
of
each month or, if such 25th day is not a Business Day, then the Business Day
immediately following such Distribution Date (the “Distribution Date”),
commencing on the first Distribution Date specified on the face hereof, to
the
Person in whose name this Certificate is registered at the close of business
on
the applicable 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 Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made by check or money order mailed to the address
of the person entitled thereto as it appears on the Certificate Register or
by
wire transfer or otherwise, as set forth in the Agreement. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee
or
the Trustee’s agent specified in the notice to Certificateholders of such final
distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Trustee and
the rights of the Certificateholders under the Agreement at any time by the
Depositor, the Servicer and the Trustee and of Holders of the requisite
percentage of the Percentage Interests of each Class of Certificates affected
by
such amendment, as specified in the Agreement. 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 therefor 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
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the offices or agencies of the Trustee as provided in the Pooling
and Servicing Agreement accompanied by a written instrument of transfer in
form
satisfactory to the Trustee and the Certificate Registrar 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 and evidencing the same aggregate Percentage Interest in the
Trust
will be issued to the designated transferee or transferees.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
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,
but the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
The
Depositor, the Servicer and 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
Trustee, the Servicer or any such agent shall be affected by any notice to
the
contrary.
On
any
Distribution Date following the date at which the remaining aggregate Principal
Balance of the Mortgage Loans is less than 10% of the Principal Balance of
the
Original Mortgage Loans as of the Cut-off Date, the Servicer may purchase,
in
whole, from the Trust the Mortgage Loans at a purchase price determined as
provided in the Agreement. In the event that no such optional termination
occurs, the obligations and responsibilities created by the Agreement will
terminate upon notice to the Trustee upon the earliest of (i) the Distribution
Date on which the Certificate Principal Balances of the Regular Certificates
have been reduced to zero, (ii) the final payment or other liquidation of the
last Mortgage Loan in the Trust, (iii) the optional purchase by the Servicer
of
the Mortgage Loans as described in the Agreement and (iv) the Distribution
Date
in April 2036.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
Dated:_________________
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
|
Distributions
shall be made, by wire transfer or otherwise, in immediately available
|
|||||||
|
funds
to
|
|||||||
|
for
the account of
|
|||||||
|
account
number
|
or,
if mailed by check, to
|
||||||
|
Applicable
statements should be mailed to
|
|||||||
|
This
information is provided by
|
|||||||
|
assignee
named above, or
|
|||||||
|
its
agent.
|
|||||||
EXHIBIT
B
[RESERVED]
EXHIBIT
C
FORM
OF
ASSIGNMENT AGREEMENT
ASSIGNMENT
AND RECOGNITION AGREEMENT
THIS
ASSIGNMENT AND RECOGNITION AGREEMENT, dated April 10, 2006, (“Agreement”)
among
Greenwich Capital Financial Products, Inc. (“Assignor”),
Financial Asset Securities Corp. (“Assignee”)
and
Fremont Investment & Loan (the “Company”):
For
and
in consideration of the sum of TEN DOLLARS ($10.00) and other valuable
consideration the receipt and sufficiency of which hereby are acknowledged,
and
of the mutual covenants herein contained, the parties hereto hereby agree
as
follows:
Assignment
and Conveyance
1. The
Assignor hereby conveys, sells, grants, transfers and assigns to the Assignee
(x) all of the right, title and interest of the Assignor, as purchaser, in,
to
and under (a) those certain Mortgage Loans listed as being originated by
the
Company on the schedule (the “Mortgage
Loan Schedule”)
attached hereto as Exhibit A (the “Mortgage
Loans”)
and
(b) except as described below, that certain Master
Mortgage Loan Purchase and Interim Servicing Agreement dated as of December
1, 2005, as amended (the “Purchase
Agreement”),
between the Assignor, as initial purchaser (the “Purchaser”),
and
the Company, as seller and interim servicer, solely insofar as the Purchase
Agreement relates to the Mortgage Loans and (y) other than as provided below
with respect to the enforcement of representations and warranties, none of
the
obligations of the Assignor under the Purchase Agreement.
The
Assignor specifically reserves and does not assign to the Assignee hereunder
any
and all right, title and interest in, to and under and any obligations of
the
Assignor with respect to any mortgage loans subject to the Purchase Agreement
which are not the mortgage loans set forth on the Mortgage Loan Schedule
and are
not the subject of this Agreement.
Recognition
of the Company
2. From
and
after the date hereof, the Company shall and does hereby recognize that the
Assignee will transfer the Mortgage Loans and assign its rights under the
Purchase Agreement (solely to the extent set forth herein) and this Agreement
to
Fremont Home Loan Trust 2006-1 (the “Trust”) created pursuant to a Pooling and
Servicing Agreement, dated as of April 1, 2006 (the “Pooling Agreement”),
among
the
Assignee, Xxxxx Fargo Bank as servicer (effective July 1, 2006) (including
its
successors in interest and any successor servicers under the Pooling Agreement,
the “Servicer”) and Deutsche Bank National Trust Company, as trustee (including
its successors in interest and any successor trustees under the Pooling
Agreement, the “Trustee”).
The
Company hereby acknowledges and agrees that from and after the date hereof
(i) the Trust will be the owner of the Mortgage Loans, (ii) the
Company shall look solely to the Trust for performance of any obligations
of the
Assignor insofar as they relate to the enforcement of the representations,
warranties and covenants with respect to the Mortgage Loans, (iii) the
Trust (including the Trustee and the Servicer acting on the Trust’s behalf)
shall have all the rights and remedies available to the Assignor, insofar
as
they relate to the Mortgage Loans, under the Purchase Agreement, including,
without limitation, the enforcement of the document delivery requirements
and
remedies with respect to breaches of representations and warranties set forth
in
the Purchase Agreement, and shall be entitled to enforce all of the obligations
of the Company thereunder insofar as they relate to the Mortgage Loans, and
(iv) all references to the Purchaser (insofar as they relate to the rights,
title and interest and, with respect to obligations of the Purchaser, only
insofar as they relate to the enforcement of the representations, warranties
and
covenants of the Company) or the Custodian under the Purchase Agreement insofar
as they relate to the Mortgage Loans, shall be deemed to refer to the Trust
(including the Trustee and the Servicer acting on the Trust’s behalf). Neither
the Company nor the Assignor shall amend or agree to amend, modify, waiver,
or
otherwise alter any of the terms or provisions of the Purchase Agreement
which
amendment, modification, waiver or other alteration would in any way affect
the
Mortgage Loans or the Company’s performance under the Purchase Agreement with
respect to the Mortgage Loans without the prior written consent of the
Trustee.
Representations
and Warranties of the Company
3. The
Company warrants and represents to the Assignor, the Assignee and the Trust
as
of the date hereof that:
(a) The
Company is duly organized, validly existing and in good standing under the
laws
of the jurisdiction of its incorporation;
(b) The
Company has full power and authority to execute, deliver and perform its
obligations under this Agreement and has full power and authority to perform
its
obligations under the Purchase Agreement. The execution by the Company of
this
Agreement is in the ordinary course of the Company’s business and will not
conflict with, or result in a breach of, any of the terms, conditions or
provisions of the Company’s charter or bylaws or any legal restriction, or any
material agreement or instrument to which the Company is now a party or by
which
it is bound, or result in the violation of any law, rule, regulation, order,
judgment or decree to which the Company or its property is subject. The
execution, delivery and performance by the Company of this Agreement have
been
duly authorized by all necessary corporate action on part of the Company.
This
Agreement has been duly executed and delivered by the Company, and, upon
the due
authorization, execution and delivery by the Assignor and the Assignee, will
constitute the valid and legally binding obligation of the Company, enforceable
against the Company in accordance with its terms except as enforceability
may be
limited by bankruptcy, reorganization, insolvency, moratorium or other similar
laws now or hereafter in effect relating to creditors’ rights generally, and by
general principles of equity regardless of whether enforceability is considered
in a proceeding in equity or at law;
(c) No
consent, approval, order or authorization of, or declaration, filing or
registration with, any governmental entity is required to be obtained or
made by
the Company in connection with the execution, delivery or performance by
the
Company of this Agreement;
(d) There
is
no action, suit, proceeding or investigation pending or threatened against
the
Company, before any court, administrative agency or other tribunal, which
would
draw into question the validity of this Agreement or the Purchase Agreement,
or
which, either in any one instance or in the aggregate, would result in any
material adverse change in the ability of the Company to perform its obligations
under this Agreement or the Purchase Agreement, and the Company is solvent;
(e) With
respect any Mortgage Loan originated on or after August 1, 2004, neither
the
related Mortgage nor the related Mortgage Note requires the borrower to submit
to arbitration to resolve any dispute arising out of or relating in any way
to
the Mortgage Loan transaction; and
(f) No
Mortgage Loan is a “high cost home”, “covered” (excluding home loans defined as
“covered home loans” in the New Jersey Home Ownership Security Act of 2002 that
were originated between November 26, 2003 and July 7, 2004), “high risk home” or
“predatory” mortgage loan or any other comparable term, no matter how defined
under any applicable federal, state or local law (or a similarly classified
loan
using different terminology under a law imposing heightened regulatory scrutiny
or additional legal liability for residential mortgage loans having high
interest rates, points and/or fees).
4. Pursuant
to Section 12 of the Purchase Agreement, the Company hereby represents and
warrants, for the benefit of the Assignor, the Assignee and the Trust, that
the
representations and warranties set forth in Sections 7.01 and 7.02 of the
Purchase Agreement, are true and correct as of the date hereof and as of
the
Closing Date (as defined in the Pooling Agreement) as if such representations
and warranties were made on such date, except that the representation and
warranty set forth in Section 7.02(a) shall, for purposes of this Agreement,
relate to the Mortgage Loan Schedule attached hereto and except for the
limitations and qualifications set forth on Schedule 1 hereto.
5. The
Assignor hereby makes the following representations and warranties as of
the
date hereof:
(a) Each
Mortgage Loan at the time it was made complied in all material respects with
applicable local, state, and federal laws, including, but not limited to,
all
applicable predatory and abusive lending laws;
(b) None
of
the mortgage loans are High Cost as defined by any applicable predatory and
abusive lending laws; and
(c) No
loan
is a High Cost Loan or Covered Loan, as applicable (as such terms are defined
in
the then current Standard & Poor’s LEVELS®
Glossary
which is now Version 5.6b Revised, Appendix E);
(d) No
Mortgage Loans originated on or after
October
1, 2002 through March 6, 2003 is governed by the Georgia Fair Lending Act;
and
(e) The
original principal balance of each Group I Mortgage Loan is within Xxxxxxx
Mac’s
dollar amount limits for conforming one-to-four family mortgage
loans.
Remedies
for Breach of Representations and Warranties
6. The
Company hereby acknowledges and agrees that the remedies available to the
Assignor, the Assignee and the Trust (including the Trustee and the Servicer
acting on the Trust’s behalf) in connection with any breach of the
representations and warranties made by the Company set forth in Sections
3 and 4
hereof shall be as set forth in Subsection 7.03 of the Purchase Agreement
as if
they were set forth herein (including without limitation the repurchase and
indemnity obligations set forth therein). In addition, the Company hereby
acknowledges and agrees that any breach of the representations set forth
in
Section 7.02 (xliv(a)), (xliv(b)), (lviii), (xlvii), (lvi), (lxi) and (lxviii)
of the Purchase Agreement and Section 1(e) hereof shall be deemed to materially
and adversely affect the value of the related mortgage loans or the interests
of
the Trust in the related mortgage loans.
The
Assignor hereby acknowledges and agrees that the remedies available to the
Assignee and the Trust (including the Trustee and the Servicer acting on
the
Trust’s behalf) in connection with any breach of the representations and
warranties made by the Assignor set forth in Section 5 hereof shall be as
set
forth in Section 2.03 of the Pooling Agreement as if they were set forth
herein.
In addition, the Assignor hereby acknowledges and agrees that any breach
of the
representations set forth in Section 3(e) hereof shall be deemed to materially
and adversely affect the value of the related mortgage loans or the interests
of
the Trust in the related mortgage loans.
In
the
event that the first Monthly Payment on any Mortgage Loan due to the Trust
is
not made within forty-five (45) days of the date on which such Monthly Payment
was due, then such Mortgage Loan will be repurchased by the Originator at
the
Purchase Price (as defined in the Pooling and Servicing Agreement).
Notwithstanding the foregoing, the Originator’s obligation to repurchase any
such Mortgage Loan pursuant to this paragraph shall expire 120 days following
the Closing Date.
Notwithstanding
the foregoing, the Assignor may, at its option, satisfy any obligation of
the
Company with respect to any breach of representation and warranty made by
the
Company regarding the Mortgage Loans.
Miscellaneous
7. This
Agreement shall be construed in accordance with the laws of the State of
New
York, without regard to conflicts of law principles, and the obligations,
rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
8. No
term
or provision of this Agreement may be waived or modified unless such waiver
or
modification is in writing and signed by the party against whom such waiver
or
modification is sought to be enforced, with the prior written consent of
the
Trustee.
9. This
Agreement shall inure to the benefit of (i) the successors and assigns of
the
parties hereto and (ii) the Trust (including the Trustee and the Servicer
acting
on the Trust’s behalf). Any entity into which Assignor, Assignee or Company may
be merged or consolidated shall, without the requirement for any further
writing, be deemed Assignor, Assignee or Company, respectively,
hereunder.
10. Each
of
this Agreement and the Purchase Agreement shall survive the conveyance of
the
Mortgage Loans and the assignment of the Purchase Agreement (to the extent
assigned hereunder) by Assignor to Assignee and by Assignee to the Trust
and
nothing contained herein shall supersede or amend the terms of the Purchase
Agreement.
11. This
Agreement may be executed simultaneously in any number of counterparts. Each
counterpart shall be deemed to be an original and all such counterparts shall
constitute one and the same instrument.
12. In
the
event that any provision of this Agreement conflicts with any provision of
the
Purchase Agreement with respect to the Mortgage Loans, the terms of this
Agreement shall control.
13. Capitalized
terms used in this Agreement (including the exhibits hereto) but not defined
in
this Agreement shall have the meanings given to such terms in the Purchase
Agreement.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their
duly authorized officers as of the date first above written.
GREENWICH
CAPITAL FINANCIAL PRODUCTS, INC.
By:
_________________________________
Name:
Title:
FINANCIAL
ASSET SECURITIES CORP.
By:
_________________________________
Name:
Title:
FREMONT
INVESTMENT & LOAN
By:
_________________________________
Name:
Title:
EXHIBIT
A
Mortgage
Loan Schedule
SCHEDULE
1
Representations
and Warranties
Capitalized
terms used in this Schedule 1 but not defined in this Agreement shall have
the
meanings given to such terms in the Purchase Agreement.
| 1. |
The
information set forth in the related Mortgage Loan Schedule is
complete,
true and correct;
|
| 2. |
The
Mortgage Loan is in compliance with all requirements set forth
in the
related Confirmation, and the characteristics of the related Mortgage
Loan
Package as set forth in the related Confirmation are true and correct;
provided, however, that in the event of any conflict between the
terms of
any Confirmation and this Agreement, the terms of this Agreement
shall
control;
|
| 3. |
All
payments required to be made up to the close of business on the
Closing
Date for such Mortgage Loan under the terms of the Mortgage Note
have been
made; the Seller has not advanced funds, or induced, solicited
or
knowingly received any advance of funds from a party other than
the owner
of the related Mortgaged Property, directly or indirectly, for
the payment
of any amount required by the Mortgage Note or Mortgage; no Mortgage
Loan
is thirty (30) or more days delinquent as of the Closing Date and,
except
as set forth on the related Assignment and Conveyance, there has
been no
delinquency, exclusive of any period of grace, in any payment by
the
Mortgagor thereunder since the origination of the Mortgage
Loan;
|
| 4. |
To
the best of the Seller’s knowledge, there are no delinquent taxes, ground
rents, water charges, sewer rents, assessments, insurance premiums,
leasehold payments, including assessments payable in future installments
or other outstanding charges affecting the related Mortgaged
Property;
|
| 5. |
The
terms of the Mortgage Note and the Mortgage have not been impaired,
waived, altered or modified in any respect, except by written instruments,
recorded in the applicable public recording office if necessary
to
maintain the lien priority of the Mortgage, and which have been
delivered
to the Custodian; the substance of any such waiver, alteration
or
modification has been approved by the title insurer, to the extent
required by the related policy, and is reflected on the related
Mortgage
Loan Schedule. No instrument of waiver, alteration or modification
has
been executed, and no Mortgagor has been released, in whole or
in part,
except in connection with an assumption agreement approved by the
title
insurer, to the extent required by the policy, and which assumption
agreement has been delivered to the Custodian and the terms of
which are
reflected in the related Mortgage Loan
Schedule;
|
| 6. |
The
Mortgage Note and the Mortgage are not subject to any right of
rescission,
set-off, counterclaim or defense, including the defense of usury,
nor will
the operation of any of the terms of the Mortgage Note and the
Mortgage,
or the exercise of any right thereunder, render the Mortgage
unenforceable, in whole or in part, or subject to any right of
rescission,
set-off, counterclaim or defense, including the defense of usury
and no
such right of rescission, set-off, counterclaim or defense has
been
asserted with respect thereto. Each Prepayment Charge or penalty
with
respect to any Mortgage Loan is permissible, enforceable and collectible
under applicable federal, state and local
law;
|
| 7. |
All
buildings upon the Mortgaged Property are insured by a Qualified
Insurer
acceptable to prudent lenders in the secondary mortgage market
against
loss by fire, hazards of extended coverage and such other hazards
as are
customary in the area where the Mortgaged Property is located,
pursuant to
insurance policies providing coverage in an amount not less than
the
greatest of (i) 100% of the replacement cost of all improvements
to the
Mortgaged Property, (ii) either (A) the outstanding principal balance
of
the Mortgage Loan with respect to each first lien Mortgage Loan
or (B)
with respect to each second lien Mortgage Loan, the sum of the
outstanding
principal balance of the related first lien mortgage loan and the
outstanding principal balance of the second lien Mortgage Loan,
or (iii)
the amount necessary to avoid the operation of any co-insurance
provisions
with respect to the Mortgaged Property, and consistent with the
amount
that would have been required as of the date of origination in
accordance
with the Underwriting Guidelines. All such insurance policies contain
a
standard mortgagee clause naming the Seller, its successors and
assigns as
mortgagee and all premiums thereon have been paid. If the Mortgaged
Property is in an area identified on a Flood Hazard Map or Flood
Insurance
Rate Map issued by the Federal Emergency Management Agency as having
special flood hazards (and such flood insurance has been made available)
a
flood insurance policy meeting the requirements of the current
guidelines
of the Federal Insurance Administration is in effect which policy
is
generally acceptable to prudent lenders in the secondary mortgage
market.
The Mortgage obligates the Mortgagor thereunder to maintain all
such
insurance at the Mortgagor's cost and expense, and on the Mortgagor's
failure to do so, authorizes the holder of the Mortgage to maintain
such
insurance at Mortgagor's cost and expense and to seek reimbursement
therefor from the Mortgagor;
|
| 8. |
Any
and all requirements of any federal, state or local law including,
without
limitation, usury, truth in lending, real estate settlement procedures,
predatory and abusive lending, consumer credit protection, equal
credit
opportunity, fair housing or disclosure laws applicable to the
origination
and servicing of mortgage loans of a type similar to the Mortgage
Loans
and applicable to any prepayment penalty associated with the Mortgage
Loans at origination have been complied
with;
|
| 9. |
The
Mortgage has not been satisfied, cancelled, subordinated or rescinded,
in
whole or in part, and the Mortgaged Property has not been released
from
the lien of the Mortgage, in whole or in part, nor has any instrument
been
executed that would effect any such satisfaction, cancellation,
subordination, rescission or
release;
|
| 10. |
The
Mortgage (including any Negative Amortization which may arise thereunder)
is a valid, existing and enforceable (A) first lien and first priority
security interest with respect to each Mortgage Loan which is indicated
by
the Seller to be a first lien (as reflected on the Mortgage Loan
Schedule), or (B) second lien and second priority security interest
with
respect to each Mortgage Loan which is indicated by the Seller
to be a
second lien (as reflected on the Mortgage Loan Schedule), in either
case,
on the Mortgaged Property, including all improvements on the Mortgaged
Property subject only to (a) the lien of current real property
taxes and
assessments not yet due and payable, (b) covenants, conditions
and
restrictions, rights of way, easements and other matters of the
public
record as of the date of recording being acceptable to mortgage
lending
institutions generally and specifically referred to in the lender's
title
insurance policy delivered to the originator of the Mortgage Loan
and
which do not adversely affect the Appraised Value of the Mortgaged
Property, (c) with respect to each Mortgage Loan which is indicated
by the
Seller to be a second lien Mortgage Loan (as reflected on the Mortgage
Loan Schedule) a first lien on the Mortgaged Property; and (d)
other
matters to which like properties are commonly subject which do
not
materially interfere with the benefits of the security intended
to be
provided by the Mortgage or the use, enjoyment, value or marketability
of
the related Mortgaged Property. Any security agreement, chattel
mortgage
or equivalent document related to and delivered in connection with
the
Mortgage Loan establishes and creates a valid, existing and enforceable
first or second lien and first or second priority security interest
(in
each case, as indicated on the Mortgage Loan Schedule) on the property
described therein and the Seller has full right to sell and assign
the
same to the Purchaser. The Mortgaged Property was not, as of the
date of
origination of the Mortgage Loan, subject to a mortgage, deed of
trust,
deed to secure debt or other security instrument creating a lien
subordinate to the lien of the
Mortgage;
|
| 11. |
The
Mortgage Note and the related Mortgage are genuine and each is
the legal,
valid and binding obligation of the maker thereof, enforceable
in
accordance with its terms;
|
| 12. |
All
parties to the Mortgage Note and the Mortgage had legal capacity
to enter
into the Mortgage Loan and to execute and deliver the Mortgage
Note and
the Mortgage, and the Mortgage Note and the Mortgage have been
duly and
properly executed by such parties. The Mortgagor is a natural
person;
|
| 13. |
The
proceeds of the Mortgage Loan have been fully disbursed to or for
the
account of the Mortgagor and there is no obligation for the Mortgagee
to
advance additional funds thereunder and any and all requirements
as to
completion of any on-site or off-site improvement and as to disbursements
of any escrow funds therefor have been complied with. All costs,
fees and
expenses incurred in making or closing the Mortgage Loan and the
recording
of the Mortgage have been paid, and the Mortgagor is not entitled
to any
refund of any amounts paid or due to the Mortgagee pursuant to
the
Mortgage Note or Mortgage;
|
| 14. |
The
Seller is the sole legal, beneficial and equitable owner of the
Mortgage
Note and the Mortgage and has full right to transfer and sell the
Mortgage
Loan to the Purchaser free and clear of any encumbrance, equity,
lien,
pledge, charge, claim or security
interest;
|
| 15. |
All
parties which have had any interest in the Mortgage Loan, whether
as
mortgagee, assignee, pledgee or otherwise, are (or, during the
period in
which they held and disposed of such interest, were) in compliance
with
any and all applicable “doing business” and licensing requirements of the
laws of the state wherein the Mortgaged Property is
located;
|
| 16. |
The
Mortgage Loan is covered by an American Land Title Association
(“ALTA”)
lender’s title insurance policy (which, in the case of an Adjustable Rate
Mortgage Loan has an adjustable rate mortgage endorsement in the
form of
ALTA 6.0 or 6.1) acceptable to Xxxxxx Xxx and Xxxxxxx
Mac,
issued by a title insurer acceptable to prudent lenders in the
secondary
mortgage market and qualified to do business in the jurisdiction
where the
Mortgaged Property is located, insuring (subject to the exceptions
contained in (x)(a) and (b), and with respect to any second lien
Mortgage
Loan (c), above) the Seller, its successors and assigns as to the
first or
second priority lien (as indicated on the Mortgage Loan Schedule)
of the
Mortgage in the original principal amount of the Mortgage Loan
(including,
if the Mortgage Loan provides for Negative Amortization, the maximum
amount of Negative Amortization in accordance with the Mortgage)
and, with
respect to any Adjustable Rate Mortgage Loan, against any loss
by reason
of the invalidity or unenforceability of the lien resulting from
the
provisions of the Mortgage providing for adjustment in the Mortgage
Interest Rate and Monthly Payment and Negative Amortization provisions
of
the Mortgage Note. Additionally, such lender's title insurance
policy
affirmatively insures ingress and egress to and from the Mortgaged
Property, and against encroachments by or upon the Mortgaged Property
or
any interest therein. The Seller is the sole insured of such lender's
title insurance policy, and such lender’s title insurance policy is in
full force and effect and will be in full force and effect upon
the
consummation of the transactions contemplated by this Agreement.
No claims
have been made under such lender's title insurance policy, and
no prior
holder of the related Mortgage, including the Seller, has done,
by act or
omission, anything which would impair the coverage of such lender's
title
insurance policy;
|
| 17. |
Other
than payment delinquencies of less than one calendar month, there
is no
default, breach, violation or event of acceleration existing under
the
Mortgage or the Mortgage Note and no event which, with the passage
of time
or with notice and the expiration of any grace or cure period,
would
constitute a default, breach, violation or event of acceleration,
and the
Seller has not waived any default, breach, violation or event of
acceleration. With respect to each second lien Mortgage Loan (i)
the first
lien mortgage loan is in full force and effect, (ii) other than
payment
delinquencies of less than one calendar month, there is no default,
breach, violation or event of acceleration existing under such
first lien
mortgage or the related mortgage note, (iii) no event which, with
the
passage of time or with notice and the expiration of any grace
or cure
period, would constitute a default, breach, violation or event
of
acceleration thereunder, (iv) either (A) the first lien mortgage
contains
a provision which allows or (B) applicable law requires, the mortgagee
under the second lien Mortgage Loan to receive notice of, and affords
such
mortgagee an opportunity to cure any default by payment in full
or
otherwise under the first lien mortgage, (v) the related first
lien does
not provide for or permit negative amortization under such first
lien
Mortgage Loan, and (vi) either no consent for the Mortgage Loan
is
required by the holder of the first lien or such consent has been
obtained
and is contained in the Mortgage
File;
|
| 18. |
As
of the date of origination of the Mortgage Loan and to the best
of the
Seller’s knowledge as of the Closing Date, except as insured against by
the related title insurance policy, there are no mechanics' or
similar
liens or claims which have been filed for work, labor or material
(and no
rights are outstanding that under law could give rise to such lien)
affecting the related Mortgaged Property which are or may be liens
prior
to, or equal or coordinate with, the lien of the related
Mortgage;
|
| 19. |
All
improvements which were considered in determining the Appraised
Value of
the related Mortgaged Property lay wholly within the boundaries
and
building restriction lines of the Mortgaged Property, and no improvements
on adjoining properties encroach upon the Mortgaged
Property;
|
| 20. |
The
Mortgage Loan was originated by the Seller or by a savings and
loan
association, a savings bank, a commercial bank or similar banking
institution which is supervised and examined by a federal or state
authority, or by a mortgagee approved as such by the Secretary
of
HUD;
|
| 21. |
Principal
payments on the Mortgage Loan commenced no more than sixty (60)
days after
the proceeds of the Mortgage Loan were disbursed. The Mortgage
Loan bears
interest at the Mortgage Interest Rate. With respect to each Mortgage
Loan
which is not a Negative Amortization Loan, the Mortgage Note is
payable on
the first or fifteenth day of each month in Monthly Payments, which,
in
the case of a Fixed Rate Mortgage Loans, are sufficient to fully
amortize
the original principal balance over the original term thereof (other
than
with respect to a Mortgage Loan identified on the related Mortgage
Loan
Schedule as an interest-only Mortgage Loan during the interest-only
period
or a Mortgage Loan which is identified on the related Mortgage
Loan
Schedule as a Balloon Mortgage Loan) and to pay interest at the
related
Mortgage Interest Rate, and, in the case of an Adjustable Rate
Mortgage
Loan, are changed on each Adjustment Date, and in any case, are
sufficient
to fully amortize the original principal balance over the original
term
thereof (other than with respect to a Mortgage Loan identified
on the
related Mortgage Loan Schedule as an interest-only Mortgage Loan
during
the interest-only period or a Mortgage Loan which is identified
on the
related Mortgage Loan Schedule as a Balloon Mortgage Loan) and
to pay
interest at the related Mortgage Interest Rate. With respect to
each
Negative Amortization Mortgage Loan, the related Mortgage Note
requires a
Monthly Payment which is sufficient during the period following
each
Payment Adjustment Date, to fully amortize the outstanding principal
balance as of the first day of such period (including any Negative
Amortization) over the then remaining term of such Mortgage Note
and to
pay interest at the related Mortgage Interest Rate; provided, that
the
Monthly Payment shall not increase to an amount that exceeds 107.5%
of the
amount of the Monthly Payment that was due immediately prior to
the
Payment Adjustment Date; provided, further, that the payment adjustment
cap shall not be applicable with respect to the adjustment made
to the
Monthly Payment that occurs in a year in which the Mortgage Loan
has been
outstanding for a multiple of five (5) years and in any such year
the
Monthly Payment shall be adjusted to fully amortize the Mortgage
Loan over
the remaining term. With respect to each Mortgage Loan identified
on the
Mortgage Loan Schedule as an interest-only Mortgage Loan, the
interest-only period shall not exceed ten (10) years (or such other
period
specified on the Mortgage Loan Schedule) and following the expiration
of
such interest-only period, the remaining Monthly Payments shall
be
sufficient to fully amortize the original principal balance over
the
remaining term of the Mortgage Loan and to pay interest at the
related
Mortgage Interest Rate. With respect to each Balloon Mortgage Loan,
the
Mortgage Note requires a monthly payment which is sufficient to
fully
amortize the original principal balance over the original term
thereof and
to pay interest at the related Mortgage Interest Rate and requires
a final
Monthly Payment substantially greater than the preceding monthly
payment
which is sufficient to repay the remained unpaid principal balance
of the
Balloon Mortgage Loan as the Due Date of such monthly payment.
The Index
for each Adjustable Rate Mortgage Loan is as set forth on the Mortgage
Loan Schedule. No Mortgage Loan is a Convertible Mortgage Loan.
No Balloon
Mortgage Loan has an original stated maturity of less than seven
(7)
years;
|
| 22. |
The
origination, servicing and collection practices used with respect
to each
Mortgage Note and Mortgage including, without limitation, the
establishment, maintenance and servicing of the Escrow Accounts
and Escrow
Payments, if any, since origination, have been in all respects
legal,
proper, prudent and customary in the mortgage origination and servicing
industry. The Mortgage Loan has been serviced by the Seller and
any
predecessor servicer in accordance with the terms of the Mortgage
Note and
Accepted Servicing Practices. With respect to escrow deposits and
Escrow
Payments, if any, all such payments are in the possession of, or
under the
control of, the Seller and there exist no deficiencies in connection
therewith for which customary arrangements for repayment thereof
have not
been made. No escrow deposits or Escrow Payments or other charges
or
payments due the Seller have been capitalized under any Mortgage
or the
related Mortgage Note and no such escrow deposits or Escrow Payments
are
being held by the Seller for any work on a Mortgaged Property which
has
not been completed;
|
| 23. |
To
the best of the Seller’s knowledge, the Mortgaged Property is free of
damage and waste and there is no proceeding pending for the total
or
partial condemnation thereof;
|
| 24. |
The
Mortgage and related Mortgage Note contain customary and enforceable
provisions such as to render the rights and remedies of the holder
thereof
adequate for the realization against the Mortgaged Property of
the
benefits of the security provided thereby, including, (a) in the
case of a
Mortgage designated as a deed of trust, by trustee's sale, and
(b)
otherwise by judicial foreclosure. The Mortgaged Property is not
subject
to any bankruptcy proceeding or foreclosure proceeding and the
Mortgagor
is not subject to protection under applicable bankruptcy laws.
There is no
homestead or other exemption available to the Mortgagor which would
interfere with the right to sell the Mortgaged Property at a trustee's
sale or the right to foreclose the Mortgage. The Mortgagor has
not
notified the Seller and the Seller has no knowledge of any relief
requested or allowed to the Mortgagor under the Servicemembers’ Civil
Relief Act;
|
| 25. |
The
Mortgage Loan was underwritten in accordance with the Underwriting
Guidelines in effect at the time the Mortgage Loan was originated;
and the
Mortgage Note and Mortgage are on forms acceptable to Xxxxxx Xxx
and
Xxxxxxx
Mac;
|
| 26. |
The
Mortgage Note is not and has not been secured by any collateral
except the
lien of the corresponding Mortgage on the Mortgaged Property and
the
security interest of any applicable security agreement or chattel
mortgage
referred to in (x) above;
|
| 27. |
The
Mortgage File contains an appraisal of the related Mortgaged Property
which satisfied the standards of FIRREA, was on appraisal form
1004 or
form 2055 with an interior inspection and was made and signed,
prior to
the approval of the Mortgage Loan application, by a qualified appraiser,
duly appointed by the Seller, who had no interest, direct or indirect
in
the Mortgaged Property or in any loan made on the security thereof,
whose
compensation is not affected by the approval or disapproval of
the
Mortgage Loan and who satisfied the standards of FIRREA. Each appraisal
of
the Mortgage Loan was made in accordance with the relevant provisions
of
FIRREA;
|
| 28. |
In
the event the Mortgage constitutes a deed of trust, a trustee,
duly
qualified under applicable law to serve as such, has been properly
designated and currently so serves and is named in the Mortgage,
and no
fees or expenses are or will become payable by the Purchaser to
the
trustee under the deed of trust, except in connection with a trustee's
sale after default by the
Mortgagor;
|
| 29. |
No
Mortgage Loan contains provisions pursuant to which Monthly Payments
are
(a) paid or partially paid with funds deposited in any separate
account
established by the Seller, the Mortgagor, or anyone on behalf of
the
Mortgagor, (b) paid by any source other than the Mortgagor or (c)
contains
any other similar provisions which may constitute a “buydown” provision.
The Mortgage Loan is not a graduated payment mortgage loan and
the
Mortgage Loan does not have a shared appreciation or other contingent
interest feature;
|
| 30. |
The
Mortgagor has executed a statement to the effect that the Mortgagor
has
received all disclosure materials required by applicable law with
respect
to the making of fixed rate mortgage loans in the case of Fixed
Rate
Mortgage Loans, and adjustable rate mortgage loans in the case
of
Adjustable Rate Mortgage Loans and rescission materials with respect
to
Refinanced Mortgage Loans, and such statement is and will remain
in the
Mortgage File;
|
| 31. |
No
Mortgage Loan was made in connection with (a) the construction
or
rehabilitation of a Mortgaged Property or (b) facilitating the
trade-in or
exchange of a Mortgaged Property;
|
| 32. |
Taking
into account the credit standing of the related Mortgagors and
the
Underwriting Guidelines under which the Mortgage Loans were originated,
the Seller has no knowledge of any circumstances or condition with
respect
to the Mortgage, the Mortgaged Property or the Mortgagor that can
reasonably be expected to cause the Mortgage Loan to become delinquent
or
adversely affect the value of the Mortgage Loan as compared to
other
mortgage loans in the Seller’s portfolio meeting the requirements of the
Agreement and the related
Confirmation;
|
| 33. |
No
Mortgage Loan had an LTV or a CLTV at origination in excess of
100%. No
Mortgage Loan is subject to a lender paid primary mortgage insurance
policy;
|
| 34. |
As
of the date of origination of the Mortgage Loan and to the best
of the
Seller’s knowledge as of the Closing Date, the Mortgaged Property is
lawfully occupied under applicable law; all inspections, licenses
and
certificates required to be made or issued with respect to all
occupied
portions of the Mortgaged Property and, with respect to the use
and
occupancy of the same, including but not limited to certificates
of
occupancy, have been made or obtained from the appropriate
authorities;
|
| 35. |
No
error, omission, misrepresentation, negligence, fraud or similar
occurrence with respect to a Mortgage Loan has taken place on the
part of
any person, including without limitation the Mortgagor, any appraiser,
any
builder or developer, or any other party involved in the origination
of
the Mortgage Loan or in the application of any insurance in relation
to
such Mortgage Loan;
|
| 36. |
The
Assignment of Mortgage, if required, is in recordable form, except
for the
name of the assignee which is blank, and is acceptable for recording
under
the laws of the jurisdiction in which the Mortgaged Property is
located;
|
| 37. |
Any
principal advances made to the Mortgagor prior to the Cut-off Date
have
been consolidated with the outstanding principal amount secured
by the
Mortgage, and the secured principal amount, as consolidated, bears
a
single interest rate and single repayment term. The lien of the
Mortgage
securing the consolidated principal amount is expressly insured
as having
first or second (as indicated on the Mortgage Loan Schedule) lien
priority
by a title insurance policy, an endorsement to the policy insuring
the
mortgagee's consolidated interest or by other title evidence acceptable
to
prudent lenders in the secondary mortgage market. The consolidated
principal amount does not exceed the original principal amount
of the
Mortgage Loan plus any Negative
Amortization;
|
| 38. |
If
the Residential Dwelling on the Mortgaged Property is a condominium
unit
or a unit in a planned unit development (other than a de minimis
planned
unit development) such condominium or planned unit development
project
meets the Seller’s eligibility
requirements;
|
| 39. |
The
source of the down payment with respect to each Mortgage Loan has
been
fully verified by the Seller pursuant to the Underwriting
Guidelines;
|
| 40. |
Interest
on each Mortgage Loan is calculated on the basis of a 360-day year
consisting of twelve 30-day months;
|
| 41. |
The
Mortgaged Property is in material compliance with all applicable
environmental laws pertaining to environmental hazards including,
without
limitation, asbestos, and neither the Seller nor, to the Seller’s
knowledge, the related Mortgagor, has received any notice of any
violation
or potential violation of such law;
|
| 42. |
The
Seller shall, at its own expense, cause each Mortgage Loan to be
covered
by a Tax Service Contract which is assignable to the Purchaser
or its
designee; provided however, that if the Seller fails to purchase
such Tax
Service Contract, the Seller shall be required to reimburse the
Purchaser
for all costs and expenses incurred by the Purchaser in connection
with
the purchase of any such Tax Service
Contract;
|
| 43. |
Each
Mortgage Loan is covered by a Flood Zone Service Contract which
is
assignable to the Purchaser or its designee or, for each Mortgage
Loan not
covered by such Flood Zone Service Contract, the Seller agrees
to purchase
such Flood Zone Service Contract;
|
| 44. |
No
Mortgage Loan is (a)(1) subject to the provisions of the Homeownership
and
Equity Protection Act of 1994 as amended (“HOEPA”) or (2) has an APR or
total points and fees that are equal to or exceeds the HOEPA thresholds
(as defined in 12 CFR 226.32 (a)(1)(i) and (ii)), (b) a “high cost”
mortgage loan, “covered” mortgage loan, “high risk home” mortgage loan, or
“predatory” mortgage loan or any other comparable term, no matter how
defined under any federal, state or local law, (c) subject to any
comparable federal, state or local statutes or regulations, or
any other
statute or regulation providing for heightened regulatory scrutiny
or
assignee liability to holders of such mortgage loans, or (d) a
High Cost
Loan or Covered Loan, as applicable (as such terms are defined
in the
current Standard & Poor’s LEVELS® Glossary Revised, Appendix
E);
|
| 45. |
No
predatory, abusive, or deceptive lending practices, including but
not
limited to, the extension of credit to a Mortgagor without regard
for the
Mortgagor’s ability to repay the Mortgage Loan and the extension of credit
to a mortgagor which has no apparent benefit to the Mortgagor,
were
employed in connection with the origination of the Mortgage
Loan;
|
| 46. |
The
debt-to-income ratio of the related Mortgagor was not greater than
60% at
the origination of the related Mortgage
Loan;
|
| 47. |
No
Mortgagor was required to purchase any credit insurance product
(e.g.,
life, mortgage, disability, accident, unemployment or health insurance
product) or debt cancellation agreement as a condition of obtaining
the
extension of credit. No Mortgagor obtained a prepaid single premium
credit
insurance policy (e.g., life, mortgage, disability, accident, unemployment
or health insurance product) or debt cancellation agreement in
connection
with the origination of the Mortgage Loan. No proceeds from any
Mortgage
Loan were used to purchase single premium credit insurance policies
) or
debt cancellation agreements as part of the origination of, or
as a
condition to closing, such Mortgage Loan.
|
| 48. |
The
Mortgage Loans were not selected from the outstanding one- to four-family
mortgage loans in the Seller’s portfolio at the related Closing Date, as
to which the representations and warranties set forth in this Agreement
could be made and as to which the stipulations in the Confirmation
could
be satisfied in a manner so as to affect adversely the interests
of the
Purchaser. The related Mortgagor under the Mortgage Loan had a
FICO Score
not less than 500 at the time of the origination of the Mortgage
Loan,
unless such Mortgage Loan was originated under an origination program
which does not require FICO scores to be obtained under the Seller’s
underwriting guidelines;
|
| 49. |
The
Mortgage contains an enforceable provision for the acceleration
of the
payment of the unpaid principal balance of the Mortgage Loan in
the event
that the Mortgaged Property is sold or transferred without the
prior
written consent of the mortgagee
thereunder;
|
| 50. |
The
Mortgage Loan complies with all applicable consumer credit statutes
and
regulations, including, without limitation, the respective Uniform
Consumer Credit Code laws in effect in Alabama, Colorado, Idaho,
Indiana,
Iowa, Kansas, Maine, Oklahoma, South Carolina, Utah, West Virginia
and
Wyoming, has been originated by a properly licensed entity, and
in all
other respects, complies with all of the material requirements
of any such
applicable laws;
|
| 51. |
The
information set forth in the Mortgage Loan Schedule as to Prepayment
Charges is complete, true and correct in all material respects
and each
Prepayment Charge is permissible, enforceable and collectable in
accordance with its terms upon the Mortgagor’s full and voluntary
principal payment under applicable
law;
|
| 52. |
The
Mortgage Loan was not prepaid in full prior to the Closing Date
and the
Seller has not received notification from a Mortgagor that a prepayment
in
full shall be made after the Closing
Date;
|
| 53. |
No
Mortgage Loan is secured by cooperative housing, commercial property
or
mixed use property, unless such mixed use property is subject to
de
minimis commercial use, such commercial use was not taken into
account in
valuing the related Mortgaged Property and the related Mortgaged
Property
was not modified for such commercial
use;
|
| 54. |
Each
Mortgage Loan is eligible for sale in the secondary market or for
inclusion in a Securitization Transaction without unreasonable
credit
enhancement;
|
| 55. |
Except
as set forth on the related Mortgage Loan Schedule, none of the
Mortgage
Loans are subject to a Prepayment Charge. For any Mortgage Loan
originated
prior to October 1, 2002 that is subject to a Prepayment Charge,
such
Prepayment Charge does not extend beyond five (5) years after the
date of
origination. For any Mortgage Loan originated on or following October
1,
2002 that is subject to a Prepayment Charge, such Prepayment Charge
does
not extend beyond three (3) years after the date of origination.
With
respect to any Mortgage Loan that contains a provision permitting
imposition of a premium upon a prepayment prior to maturity: (i)
prior to
the Mortgage Loan's origination, the Mortgagor agreed to such premium
in
exchange for a monetary benefit, including but not limited to a
rate or
fee reduction, (ii) prior to the Mortgage Loan's origination, the
Mortgagor was offered the option of obtaining a Mortgage Loan that
did not
require payment of such a premium, (iii) the prepayment premium
is
disclosed to the Mortgagor in the loan documents pursuant to applicable
state and federal law, and (iv) notwithstanding any state or federal
law
to the contrary, the Seller shall not impose such Prepayment Charge
in any
instance when the mortgage loan is accelerated or paid off in connection
with the workout of a delinquent Mortgage Loan as the result of
the
Mortgagor's default in making the loan
payments;
|
| 56. |
The
Seller has complied with all applicable anti-money laundering laws
and
regulations, including without limitation the USA Patriot Act of
2001
(collectively, the “Anti-Money Laundering Laws”); the Seller has
established an anti-money laundering compliance program as required
by the
Anti-Money Laundering Laws, has conducted the requisite due diligence
in
connection with the origination of each Mortgage Loan for purposes
of the
Anti-Money Laundering Laws, including with respect to the legitimacy
of
the applicable Mortgagor and the origin of the assets used by the
said
Mortgagor to purchase the Mortgaged Property, and maintains, and
will
maintain, sufficient information to identify the applicable Mortgagor
for
purposes of the Anti-Money Laundering Laws. No Mortgage Loan is
subject to
nullification pursuant to Executive Order 13224 (the “Executive Order”) or
the regulations promulgated by the Office of Foreign Assets Control
of the
United States Department of the Treasury (the “OFAC Regulations”) or in
violation of the Executive Order or the OFAC Regulations, and no
Mortgagor
is subject to the provisions of such Executive Order or the OFAC
Regulations nor listed as a “blocked person” for purposes of the OFAC
Regulations;
|
| 57. |
No
Mortgagor was encouraged or required to select a Mortgage Loan
product
offered by the Mortgage Loan's originator which is a higher cost
product
designed for less creditworthy borrowers, unless at the time of
the
Mortgage Loan's origination, such Mortgagor did not qualify taking
into
account credit history and debt to income ratios for a lower cost
credit
product then offered by the Mortgage Loan's originator or any affiliate
of
the Mortgage Loan's originator. If, at the time of loan application,
the
Mortgagor may have qualified for a for a lower cost credit product
then
offered by any mortgage lending affiliate of the Mortgage Loan's
originator, the Mortgage Loan's originator referred the Mortgagor's
application to such affiliate for underwriting consideration. With
respect
to any Mortgage Loan, the Mortgagor was assigned the highest credit
grade
available with respect to a mortgage loan product offered by such
Mortgage
Loan’s originator, based on a comprehensive assessment of risk factors,
including the Mortgagor’s credit history. Additionally, the Mortgage
Loan’s originator offered the Mortgagor mortgage loan products offered
by
such Mortgage Loan’s originator, or any affiliate of such Mortgage Loan’s
originator, for which the Mortgagor
qualified;
|
| 58. |
The
methodology used in underwriting the extension of credit for each
Mortgage
Loan employs objective mathematical principles which relate the
Mortgagor's income, assets and liabilities to the proposed payment
and
such underwriting methodology does not rely on the extent of the
Mortgagor's equity in the collateral as the principal determining
factor
in approving such credit extension. Such underwriting methodology
confirmed that at the time of origination (application/approval)
the
Mortgagor had a reasonable ability to make timely payments on the
Mortgage
Loan;
|
| 59. |
With
respect to each Mortgage Loan, the Seller has fully and accurately
furnished complete information (i.e., favorable and unfavorable)
on the
related borrower credit files to Equifax, Experian and Trans Union
Credit
Information Company, in accordance with the Fair Credit Reporting
Act and
its implementing regulations, on a monthly basis and, for each
Mortgage
Loan, the Seller will furnish, in accordance with the Fair Credit
Reporting Act and its implementing regulations, accurate and complete
information on its borrower credit files to Equifax, Experian,
and Trans
Union Credit Information Company, on a monthly
basis;
|
| 60. |
All
points and fees related to each Mortgage Loan were disclosed in
writing to
the related Borrower in accordance with applicable state and federal
laws
and regulations. No related Borrower was charged “points and fees”
(whether or not financed) in an amount greater than (a) $1,000
or (b) 5%
of the principal amount of such loan, whichever is greater, such
5%
limitation is calculated in accordance with Xxxxxx Mae’s anti-predatory
lending requirements as set forth in the Xxxxxx Mae Guides. For
purposes
of this representation, “points and fees” (a) include origination,
underwriting, broker and finder’s fees and other charges that the lender
imposed as a condition of making the loan, whether they are paid
to the
lender or a third party, and (b) exclude bona fide discount points,
fees
paid for actual services rendered in connection with the origination
of
the mortgage (such as attorneys’ fees, notaries fees and fees paid for
property appraisals, credit reports, surveys, title examinations
and
extracts, flood and tax certifications, and home inspections);
the cost of
mortgage insurance or credit-risk price adjustments; the costs
of title,
hazard, and flood insurance policies; state and local transfer
taxes or
fees; escrow deposits for the future payment of taxes and insurance
premiums; and other miscellaneous fees and charges that, in total,
do not
exceed 0.25 percent of the loan amount. All points, fees and charges
(including finance charges) and whether or not financed, assessed,
collected or to be collected in connection with the origination
and
servicing of each Mortgage Loan were disclosed in writing to the
related
Mortgagor in accordance with applicable state and federal laws
and
regulations;
|
| 61. |
[Reserved];
|
| 62. |
With
respect to any Mortgage Loan which is secured by manufactured housing,
if
such Mortgage Loans are permitted hereunder, such Mortgage Loan
satisfies
the requirements for inclusion in residential mortgage backed securities
transactions rated by Standard & Poor's Ratings Services and such
manufactured housing will be the principal residence of the Mortgagor
upon
the origination of the Mortgage Loan. With respect to any second
lien
Mortgage Loan, such lien is on a one- to four-family residence
that is (or
will be) the principal residence of the Mortgagor upon the origination
of
the second lien Mortgage Loan;
|
| 63. |
Each
Mortgage Loan constitutes a “qualified mortgage” under
Section 860G(a)(3)(A) of the Code and Treasury Regulation
Section 1.860G-2(a)(1);
|
| 64. |
No
Mortgage Loan is secured by real property or secured by a manufactured
home located in the state of Georgia unless (x) such Mortgage Loan
was
originated prior to October 1, 2002 or after March 6, 2003, or
(y) the
property securing the Mortgage Loan is not, nor will be, occupied
by the
Mortgagor as the Mortgagor’s principal dwelling. No Mortgage Loan is a
“High Cost Home Loan” as defined in the Georgia Fair Lending Act, as
amended (the “Georgia Act”). Each Mortgage Loan that is a “Home Loan”
under the Georgia Act complies with all applicable provisions of
the
Georgia Act. No Mortgage Loan secured by owner occupied real property
or
an owner occupied manufactured home located in the State of Georgia
was
originated (or modified) on or after October 1, 2002 through and
including
March 6, 2003;
|
| 65. |
No
Mortgage Loan is a “High-Cost” loan as defined under the New York Banking
Law Section 6-1, effective as of April 1,
2003;
|
| 66. |
No
Mortgage Loan (a) is secured by property located in the State of
New York;
(b) had an unpaid principal balance at origination of $300,000
or less,
and (c) has an application date on or after April 1, 2003, the
terms of
which Mortgage Loan equal or exceed either the APR or the points
and fees
threshold for “high-cost home loans”, as defined in Section 6-1 of
the New York State Banking Law;
|
| 67. |
No
Mortgage Loan is a “High Cost Home Loan” as defined in the Arkansas Home
Loan Protection Act effective July 16, 2003 (Act 1340 or
2003);
|
| 68. |
No
Mortgage Loan is a “High Cost Home Loan” as defined in the Kentucky
high-cost loan statute effective June 24, 2003 (Ky. Rev. Stat.
Section 360.100);
|
| 69. |
No
Mortgage Loan secured by property located in the State of Nevada
is a
“home loan” as defined in the Nevada Assembly Xxxx No.
284;
|
| 70. |
No
Mortgage Loan is a “manufactured housing loan” or “home improvement home
loan” pursuant to the New Jersey Home Ownership Act. No Mortgage Loan
is a
“High-Cost Home Loan” or a refinanced “Covered Home Loan,” in each case,
as defined in the New Jersey Home Ownership Act effective November
27,
2003 (N.J.S.A. 46;10B-22 et seq.);
|
| 71. |
No
Mortgage Loan is a subsection 10 mortgage under the Oklahoma Home
Ownership and Equity protection
Act;
|
| 72. |
No
Mortgage Loan is a “High-Cost Home Loan” as defined in the New Mexico Home
Loan Protection Act effective January 1, 2004 (N.M. Stat. Xxx.
§§ 58-21A-1
et seq.);
|
| 73. |
No
Mortgage Loan is a “High-Risk Home Loan” as defined in the Illinois
High-Risk Home Loan Act effective January 1, 2004 (815 Ill. Comp.
Stat.
137/1 et seq.);
|
| 74. |
No
Loan that is secured by property located within the State of Maine
meets
the definition of a (i) “high-rate, high-fee” mortgage loan under Article
VIII, Title 9-A of the Maine Consumer Credit Code or (ii) “High-Cost Home
Loan” as defined under the Maine House Xxxx 383 X.X. 494, effective as
of
September 13, 2003;
|
| 75. |
With
respect to any Loan for which a mortgage loan application was submitted
by
the Mortgagor after April 1, 2004, no such Loan secured by Mortgaged
Property in the State of Illinois which has a Loan Interest Rate
in excess
of 8.0% per annum has lender-imposed fees (or other charges) in
excess of
3.0% of the original principal balance of the
Loan;
|
| 76. |
No
Mortgage Loan is a “High Cost Home Mortgage Loan” as defined in the
Massachusetts Predatory Home Loan Practices Act, effective November
7,
2004 (Mass. Xxx. Laws Ch. 183C). No Mortgage Loan secured by a
Mortgaged
Property located in the Commonwealth of Massachusetts was made
to pay off
or refinance an existing loan or other debt of the related borrower
(as
the term “borrower” is defined in the regulations promulgated by the
Massachusetts Secretary of State in connection with Massachusetts
House
Xxxx 4880 (2004)) unless either (1) (a) the related Mortgage Interest
Rate
(that would be effective once the introductory rate expires, with
respect
to Adjustable Rate Mortgage Loans) did or would not exceed by more
than
2.25% the yield on United States Treasury securities having comparable
periods of maturity to the maturity of the related Mortgage Loan
as of the
fifteenth day of the month immediately preceding the month in which
the
application for the extension of credit was received by the related
lender
or (b) the Mortgage Loan is an “open-end home loan” (as such term is used
in the Massachusetts House Xxxx 4880 (2004)) and the related Mortgage
Note
provides that the related Mortgage Interest Rate may not exceed
at any
time the Prime rate index as published in The Wall Street Journal
plus a
margin of one percent, or (2) such Mortgage Loan is in the "borrower's
interest," as documented by a "borrower's interest worksheet" for
the
particular Mortgage Loan, which worksheet incorporates the factors
set
forth in Massachusetts House Xxxx 4880 (2004) and the regulations
promulgated thereunder for determining "borrower's interest," and
otherwise complies in all material respects with the laws of the
Commonwealth of Massachusetts;
|
| 77. |
No
Loan is a “High Cost Home Loan” as defined by the Indiana Home Loan
Practices Act, effective January 1, 2005 ( Ind. Code Xxx. §§ 24-9-1 et
seq.);
|
| 78. |
The
Mortgagee has not made or caused to be made any payment in the
nature of
an “average” or “yield spread premium” to a mortgage broker or a like
Person which has not been fully disclosed to the
Mortgagor;
|
| 79. |
The
sale or transfer of the Mortgage Loan by the Seller complies with
all
applicable federal, state, and local laws, rules, and regulations
governing such sale or transfer, including, without limitation,
the Fair
and Accurate Credit Transactions Act (“FACT Act”) and the Fair Credit
Reporting Act, each as may be amended from time to time, and the
Seller
has not received any actual or constructive notice of any identity
theft,
fraud, or other misrepresentation in connection with such Mortgage
Loan or
any party thereto;
|
| 80. |
With
respect to each MOM Loan, a MIN has been assigned by MERS and such
MIN is
accurately provided on the Mortgage Loan Schedule. The related
Assignment
of Mortgage to MERS has been duly and properly recorded, or has
been
delivered for recording to the applicable recording
office;
|
| 81. |
With
respect to each MOM Loan, Seller has not received any notice of
liens or
legal actions with respect to such Mortgage Loan and no such notices
have
been electronically posted by MERS;
|
| 82. |
With
respect to each second lien Mortgage Loan, either no consent for
the
Mortgage Loan is required by the holder of the first lien or such
consent
has been obtained and is contained in the Mortgage File;
and
|
| 83. |
No
Mortgagor agreed to submit to arbitration to resolve any dispute
arising
out of or relating in any way to the Mortgage Loan transaction.
No
Mortgage Loan is subject to any mandatory
arbitration.
|
EXHIBIT
D
MORTGAGE
LOAN SCHEDULE
[Available
Upon Request]
EXHIBIT
E
REQUEST
FOR RELEASE
To:
Deutsche
Bank National Trust Company
0000
Xxxx
Xx. Xxxxxx Xxxxx
Xxxxx
Xxx, Xxxxxxxxxx 00000-0000
|
Re:
|
Pooling
and Servicing Agreement dated as of April 1, 2006, among Financial
Asset
Securities Corp. as Depositor, Xxxxx Fargo Bank, N.A., as Servicer,
and
Deutsche Bank National Trust Company, a national banking association,
as
Trustee
|
In
connection with the administration of the Mortgage Loans held by you as Trustee
pursuant to the above-captioned Pooling and Servicing Agreement, we request
the
release, and hereby acknowledge receipt of the Trustee’s Mortgage File Or the
Mortgage Loan described below, for the reason indicated.
Mortgage
Loan Number:
Mortgagor
Name, Address & Zip Code:
Reason
for Requesting Documents (check one):
|
_________1.
|
Mortgage
Paid in Full
|
|
_________2.
|
Foreclosure
|
|
_________3.
|
Substitution
|
|
_________4.
|
Other
Liquidation (Repurchases, etc.)
|
|
_________5.
|
Nonliquidation Reason:_____________________
|
Address
to which Trustee should deliver
the
Trustee’s Mortgage File:
|
By:
|
||
|
(authorized
signer)
|
||
|
Issuer:
|
||
|
Address:
|
||
|
Date:
|
||
Trustee
Deutsche
Bank National Trust Company
Please
acknowledge the execution of the above request by your signature and date
below:
|
______________________________
|
__________________
|
|
Signature
|
Date
|
|
Documents
returned to Trustee:
|
|
|
______________________________
|
__________________
|
|
Trustee
|
Date
|
EXHIBIT
F-1
FORM
OF
TRUSTEE’S INITIAL CERTIFICATION
April
__,
2006
Financial
Asset Securities Corp.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
|
Re:
|
Pooling
and Servicing Agreement dated as of April 1, 2006, among Financial
Asset
Securities Corp. as Depositor, Xxxxx Fargo Bank, N.A., as Servicer,
and
Deutsche Bank National Trust Company, a national banking association,
as
Trustee
|
Ladies
and Gentlemen:
Attached
is the Trustee’s preliminary exception report delivered in accordance with
Section 2.02 of the referenced Pooling and Servicing Agreement (the “Pooling and
Servicing Agreement”). Capitalized terms used but not otherwise defined herein
shall have the meanings set forth in the Pooling and Servicing
Agreement.
The
Trustee has made no independent examination of any documents contained in each
Mortgage File beyond the review specifically required in the Pooling and
Servicing Agreement. The Trustee makes no representations as to (i) the
validity, legality, sufficiency, enforceability or genuineness of any of the
documents contained in the Mortgage File pertaining to the Mortgage Loans
identified on the Mortgage Loan Schedule, (ii) the collectability, insurability,
effectiveness or suitability of any such Mortgage Loan or (iii) whether any
Mortgage File includes any of the documents specified in clause (vi) of Section
2.01 of the Pooling and Servicing Agreement.
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
EXHIBIT
F-2
FORM
OF
TRUSTEE’S FINAL CERTIFICATION
________________
[Date]
Financial
Asset Securities Corp.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
|
Re:
|
Pooling
and Servicing Agreement (the “Pooling and Servicing Agreement”), dated as
of April 1, 2006 among Financial Asset Securities Corp., as Depositor,
Xxxxx Fargo Bank, N.A., as servicer and Deutsche Bank National Trust
Company, as Trustee with respect to Fremont Home Loan Trust 2006-1,
Asset-Backed Certificates, Series
2006-1
|
Ladies
and Gentlemen:
In
accordance with Section 2.02 of the Pooling and Servicing Agreement, the
undersigned, as Trustee, hereby certifies that as to each Mortgage Loan listed
in the Mortgage Loan Schedule (other than any Mortgage loan paid in full or
listed on Schedule I hereto) it (or its custodian) has received the applicable
documents listed in Section 2.01 of the Pooling and Servicing
Agreement.
The
undersigned hereby certifies that as to each Mortgage Loan identified on the
Mortgage Loan Schedule, other than any Mortgage Loan listed on Schedule I
hereto, it has reviewed the documents listed above and has determined that
each
such document appears to be complete and, based on an examination of such
documents, the information set forth in items 1, 3, 10, 11 and 15 of the
definition of Mortgage Loan Schedule in the Pooling and Servicing Agreement
accurately reflects information in the Mortgage File.
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the Pooling and Servicing Agreement. This Certificate is qualified
in
all respects by the terms of said Pooling and Servicing Agreement.
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
EXHIBIT
F-3
FORM
OF
RECEIPT OF MORTGAGE NOTE
Financial
Asset Securities Corp.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
Re:
Fremont
Home Loan Trust 2006-1,
Asset-Backed Certificates Series 2006-1
Ladies
and Gentlemen:
Pursuant
to Section 2.01 of the Pooling and Servicing Agreement (the “Pooling and
Servicing Agreement”), dated as of April 1, 2006 among Financial Asset
Securities Corp., as Depositor, Xxxxx Fargo Bank, N.A., as Servicer and Deutsche
Bank National Trust Company, as Trustee, we hereby acknowledge the receipt
of
the original Mortgage Notes (a copy of which is attached hereto as Exhibit
1)
with any exceptions thereto listed on Exhibit 2.
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
EXHIBIT
G
[RESERVED]
EXHIBIT
H
FORM
OF
LOST NOTE AFFIDAVIT
Personally
appeared before me the undersigned authority to administer oaths,
__________________ who first being duly sworn deposes and says: Deponent is
__________________________ of ____________________________, successor by merger
to _________________________ (“Seller”) and who has personal knowledge of the
facts set out in this affidavit.
On
___________________________________, _________________________________ did
execute and deliver a promissory note in the principal amount of
$____________________.
That
said
note has been misplaced or lost through causes unknown and is presently lost
and
unavailable after diligent search has been made. Seller’s records show that an
amount of principal and interest on said note is still presently outstanding,
due, and unpaid, and Seller is still owner and holder in due course of said
lost
note.
Seller
executes this Affidavit for the purpose of inducing Deutsche Bank National
Trust
Company, as trustee on behalf of Fremont Home Loan Trust 2006-1, Asset-Backed
Certificates Series 2006-1, to accept the transfer of the above described loan
from Seller.
Seller
agrees to indemnify Deutsche Bank National Trust Company and Financial Asset
Securities Corp. harmless for any losses incurred by such parties resulting
from
the above described promissory note has been lost or misplaced.
By:
_______________________
_______________________
|
STATE
OF
|
)
|
|
)
SS:
|
|
|
COUNTY
OF
|
)
|
On
this
______ day of ______________, 20_, before me, a Notary Public, in and for said
County and State, appeared , who acknowledged the extension of the foregoing
and
who, having been duly sworn, states that any representations therein contained
are true.
Witness
my hand and Notarial Seal this _________ day of 20__.
____________________________
____________________________
My
commission expires __________________________.
EXHIBIT
I
FORM
OF
LIMITED POWER OF ATTORNEY
KNOW
ALL
MEN BY THESE PRESENTS, that [NAME OF MORTGAGEE, ASSIGNEE OR LAST ENDORSEE,
AS
APPLICABLE], [a ___________________ corporation][a national banking
organization], having its principal place of business at
__________________________, (the “Undersigned”), pursuant to that Pooling and
Servicing Agreement (the “Pooling and Servicing Agreement”) among Financial
Asset Securities Corp. (the “Owner”), Deutsche Bank National Trust Company and
Xxxxx Fargo Bank, N.A. (“Xxxxx Fargo”), hereby constitutes and appoints Xxxxx
Fargo, by and through Xxxxx Fargo’s officers, the Undersigned’s true and lawful
Attorney-in-Fact, in the Undersigned’s name, place and stead, as their interests
may appear, and for the Undersigned’s respective benefit, in connection with all
Mortgage Loans serviced by Xxxxx Fargo pursuant to the Pooling and Servicing
Agreement, for the purpose of performing all acts and executing all documents
in
the name of the Undersigned as may be customarily and reasonably necessary
and
appropriate to effectuate the following enumerated transactions in respect
of
any of the mortgages, deeds of trust or security instrument (each a “Mortgage”
or a “Deed of Trust” respectively) and promissory notes secured thereby (each a
“Mortgage Note”) for which the Undersigned is acting as Servicer pursuant to the
Pooling and Servicing Agreement (whether the Undersigned is named therein as
mortgagee or beneficiary or has become mortgagee by virtue of endorsement of
the
Mortgage Note secured by any such Mortgage or Deed of Trust) all subject to
the
terms of the related Pooling and Servicing Agreement.
This
appointment shall apply to the following enumerated transactions
only:
1. The
modification or re-recording of a Mortgage or Deed of Trust, where said
modification or re-recording is for the purpose of correcting the Mortgage
or
Deed of Trust to conform same to the original intent of the parties thereto or
to correct title errors discovered after such title insurance was issued and
said modification or re-recording, in either instance, does not adversely affect
the lien of the Mortgage or Deed of Trust as insured.
2. The
subordination of the lien of a Mortgage or Deed of Trust to an easement in
favor
of a public utility company or a governmental agency or authority thereunder
with powers of eminent domain; this section shall include, without limitation,
the execution of partial satisfaction/release, partial reconveyances or the
execution of requests to trustees to accomplish same.
3. The
conveyance of the properties to the mortgage insurer, or the closing of the
title to the property to be acquired as real estate owned, or conveyance of
title to real estate owned.
4. The
completion of loan assumption agreements.
5. The
full
satisfaction/release of a Mortgage or Deed of Trust or full reconveyance upon
payment and discharge of all sums secured thereby, including, without
limitation, cancellation of the related Mortgage Note.
6. The
assignment of any Mortgage or Deed of Trust and the related Mortgage Note,
in
connection with the repurchase of the mortgage loan secured and evidenced
thereby.
7. The
full
assignment of a Mortgage or Deed of Trust upon payment and discharge of all
sums
secured thereby in conjunction with the refinancing thereof, including, without
limitation, the assignment of the related Mortgage Note.
8. With
respect to a Mortgage or Deed of Trust, the foreclosure, the taking of a deed
in
lieu of foreclosure, or the completion of judicial or non-judicial foreclosure
or termination, cancellation or rescission of any such foreclosure, including,
without limitation, any and all of the following acts:
a) the
substitution of trustee(s) serving under a Deed of Trust, in accordance with
state law and the Deed of Trust;
b) the
preparation and issuance of statements of breach or
non-performance;
c) the
preparation and filing of notices of default and/or notices of
sale;
d) the
cancellation/rescission of notices of default and/or notices of
sale;
e) the
taking of a deed in lieu of foreclosure; and
f) the
preparation and execution of such other documents and performance of such other
actions as may be necessary under the terms of the Mortgage, Deed of Trust
or
state law to expeditiously complete said transactions in paragraphs 8(a) through
8(e) above.
9. The
full
assignment of a Mortgage or Deed of Trust upon sale of a loan pursuant to a
mortgage loan sale agreement for the sale of a loan or pool of loans, including,
without limitation, the assignment of the related Mortgage Note.
The
Undersigned gives said Attorney-in-Fact full power and authority to execute
such
instruments and to do and perform all and every act and thing necessary and
proper to carry into effect the power or powers granted by or under this Limited
Power of Attorney, each subject to the terms and conditions set forth in the
related Pooling and Servicing Agreement and in accordance with the standard
of
care applicable to servicers in the Pooling and Servicing Agreement as fully
as
the undersigned might or could do, and hereby does ratify and confirm to all
that said Attorney-in-Fact shall lawfully do or cause to be done by authority
hereof. This Limited Power of Attorney shall be effective as of [SERVICING
TRANSFER EFFECTIVE DATE].
Nothing
contained herein shall (i) limit in any manner any indemnification provided
by
Xxxxx Fargo to the Owner under the Pooling and Servicing Agreement, or (ii)
be
construed to xxxxx Xxxxx Fargo the power to initiate or defend any suit,
litigation or proceeding in the name of the Undersigned except as specifically
provided for herein or under the Pooling and Servicing Agreement.
Xxxxx
Fargo hereby agrees to indemnify and hold the Undersigned and its directors,
officers, employees and agents harmless from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever incurred
by
reason or result of or in connection with the exercise by Xxxxx Fargo of the
powers granted to it hereunder. The foregoing indemnity shall survive the
termination of this Limited Power of Attorney and the Pooling and Servicing
Agreement or the earlier resignation or removal of the Undersigned under the
Pooling and Servicing Agreement.
Any
third
party without actual notice of fact to the contrary may rely upon the exercise
of the power granted under this Limited Power of Attorney; and may be satisfied
that this Limited Power of Attorney shall continue in full force and effect
and
has not been revoked unless an instrument of revocation has been made in writing
by the undersigned, and such third party put on notice thereof. This Limited
Power of Attorney shall be in addition to and shall not revoke or in any way
limit the authority granted by any previous power of attorney executed by the
Undersigned.
IN
WITNESS WHEREOF, ____________________ pursuant to the Pooling and Servicing
Agreement, has caused its corporate seal to be hereto affixed and these presents
to be signed and acknowledged in its name and behalf by ______________________,
its duly elected and authorized _________________________ this ___ day of
_________________, 2006.
By:______________________________
Name:____________________________
Title:_____________________________
Acknowledged
and Agreed
XXXXX
FARGO BANK, N.A.
By:_________________________
Name:
Title:
|
STATE
OF
|
)
|
|
)
SS:
|
|
|
COUNTY
OF
|
)
|
On
the
______ day of ______________, ___, before me, a notary public, in and for
said
State, personally appeared ______________________________, known to me to
be a
__________________ of _______________________ instrument, and also known
to me
to be the person who executed it on behalf of said [corporation/national
banking
association], and acknowledged to me that such [corporation/national
banking association] executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal
the
day and year in this certificate first above written.
____________________________
Notary
Public
EXHIBIT
J
FORM
OF
INVESTMENT LETTER [NON-RULE 144A]
[DATE]
Financial
Asset Securities Corp.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
Deutsche
Bank National Trust Company
0000
Xxxx
Xx. Xxxxxx Xxxxx
Xxxxx
Xxx, Xxxxxxxxxx 00000-0000
Re:
Fremont
Home Loan Trust 2006-1,
Asset-Backed Certificates Series 2006-1
Ladies
and Gentlemen:
In
connection with our acquisition of the above-captioned Certificates, we certify
that (a) we understand that the Certificates are not being registered under
the
Securities Act of 1933, as amended (the “Act”), or any state securities laws and
are being transferred to us in a transaction that is exempt from the
registration requirements of the Act and any such laws, (b) we are an
“accredited investor,” as defined in Regulation D under the Act, and have such
knowledge and experience in financial and business matters that we are capable
of evaluating the merits and risks of investments in the Certificates, (c)
we
have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) we are not an employee benefit plan that is
subject to the Employee Retirement Income Security Act of 1974, as amended,
or a
plan that is subject to Section 4975 of the Internal Revenue Code of 1986,
as
amended, nor are we acting on behalf of any such plan, (e) we are acquiring
the
Certificates for investment for our own account and not with a view to any
distribution of such Certificates (but without prejudice to our right at all
times to sell or otherwise dispose of the Certificates in accordance with clause
(g) below), (f) we have not offered or sold any Certificates to, or solicited
offers to buy any Certificates from, any person, or otherwise approached or
negotiated with any person with respect thereto, or taken any other action
which
would result in a violation of Section 5 of the Act, and (g) we will not sell,
transfer or otherwise dispose of any Certificates unless (1) such sale, transfer
or other disposition is made pursuant to an effective registration statement
under the Act or is exempt from such registration requirements, and if
requested, we will at our expense provide an opinion of counsel satisfactory
to
the addressees of this Certificate that such sale, transfer or other disposition
may be made pursuant to an exemption from the Act, (2) the purchaser or
transferee of such Certificate has executed and delivered to you a certificate
to substantially the same effect as this certificate, and (3) the purchaser
or
transferee has otherwise complied with any conditions for transfer set forth
in
the Pooling and Servicing Agreement.
|
Very
truly yours,
[NAME
OF TRANSFEREE]
|
|||||||
|
By:
|
|||||||
|
Authorized
Officer
|
|||||||
FORM
OF
RULE 144A INVESTMENT LETTER
[DATE]
Financial
Asset Securities Corp.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
Deutsche
Bank National Trust Company
0000
Xxxx
Xx. Xxxxxx Xxxxx
Xxxxx
Xxx, Xxxxxxxxxx 00000-0000
Re:
Fremont
Home Loan Trust 2006-1,
Asset-Backed Certificates Series 2006-1
Ladies
and Gentlemen:
In
connection with our acquisition of the above Certificates we certify that (a)
we
understand that the Certificates are not being registered under the Securities
Act of 1933, as amended (the “Act”), or any state securities laws and are being
transferred to us in a transaction that is exempt from the registration
requirements of the Act and any such laws, (b) we have had the opportunity
to
ask questions of and receive answers from the Depositor concerning the purchase
of the Certificates and all matters relating thereto or any additional
information deemed necessary to our decision to purchase the Certificates,
(c)
we are not an employee benefit plan that is subject to the Employee Retirement
Income Security Act of 1974, as amended, or a plan that is subject to Section
4975 of the Internal Revenue Code of 1986, as amended, nor are we acting on
behalf of any such plan, (d) we have not, nor has anyone acting on our behalf
offered, transferred, pledged, sold or otherwise disposed of the Certificates,
any interest in the Certificates or any other similar security to, or solicited
any offer to buy or accept a transfer, pledge or other disposition of the
Certificates, any interest in the Certificates or any other similar security
from, or otherwise approached or negotiated with respect to the Certificates,
any interest in the Certificates or any other similar security with, any person
in any manner, or made any general solicitation by means of general advertising
or in any other manner, or taken any other action, that would constitute a
distribution of the Certificates under the Securities Act or that would render
the disposition of the Certificates a violation of Section 5 of the Securities
Act or require registration pursuant thereto, nor will act, nor has authorized
or will authorize any person to act, in such manner with respect to the
Certificates, (e) we are a “qualified institutional buyer” as that term is
defined in Rule 144A under the Securities Act and have completed either of
the
forms of certification to that effect attached hereto as Annex 1 or Annex 2.
We
are aware that the sale to us is being made in reliance on Rule 144A. We are
acquiring the Certificates for our own account or for resale pursuant to Rule
144A and further, understand that such Certificates 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 Securities Act.
|
Very
truly yours,
[NAME
OF TRANSFEREE]
|
|||||||
|
By:
|
|||||||
|
Authorized
Officer
|
|||||||
ANNEX
1 TO EXHIBIT J
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Transferees Other Than Registered Investment Companies]
The
undersigned (the “Buyer”) hereby certifies as follows to the parties listed in
the Rule 144A Transferee Certificate to which this certification relates with
respect to the Certificates described therein:
1. As
indicated below, the undersigned is the President, Chief Financial Officer,
Senior Vice President or other executive officer of the Buyer.
2. In
connection with purchases by the Buyer, the Buyer is a “qualified institutional
buyer” as that term is defined in Rule 144A under the Securities Act of 1933, as
amended (“Rule 144A”) because (i) the Buyer 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 Buyer’s most recent fiscal year (such amount being calculated in
accordance with Rule 144A and (ii) the Buyer satisfies the criteria in the
category marked below.
_________
Corporation,
etc.
The Buyer is a corporation (other than a bank, savings and loan association
or
similar institution), Massachusetts or similar business trust, partnership,
or
charitable organization described in Section
501(c)(3) of the Internal Revenue Code of 1986, as amended.
_________
Bank.
The
Buyer (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
Buyer (a) is a savings and loan association, building and loan association,
cooperative bank, homestead association or similar institution, which is
supervised and examined by a State or Federal authority having supervision
over
any such institutions or is a foreign savings and loan association or equivalent
institution and (b) has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial statements, a copy of which is
attached hereto.
_________
Broker-Dealer.
The
Buyer is a dealer registered pursuant to Section 15 of the Securities Exchange
Act of 1934.
_________
Insurance
Company.
The
Buyer 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
Buyer 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
Buyer is an employee benefit plan within the meaning of Title I of the Employee
Retirement Income Security Act of 1974.
Investment
Advisor.
The
Buyer is an investment advisor registered under the Investment Advisors Act
of
1940.
_________
Small
Business Investment Company.
Buyer
is a small business investment company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small Business Investment
Act
of 1958.
_________
Business
Development Company.
Buyer
is a business development company as defined in Section 202(a)(22) of the
Investment Advisors Act of 1940.
3. The
term
“SECURITIES” as used herein DOES NOT INCLUDE (i) securities of issuers that are
affiliated with the Buyer, (ii) securities that are part of an unsold allotment
to or subscription by the Buyer, if the Buyer 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 Buyer, the Buyer used the cost of such
securities to the Buyer and did not include any of the securities referred
to in
the preceding paragraph, except (i) where the Buyer reports its securities
holdings in its financial statements on the basis of their market value, and
(ii) no current information with respect to the cost of those securities has
been published. If clause (ii) in the preceding sentence applies, the securities
may be valued at market. Further, in determining such aggregate amount, the
Buyer may have included securities owned by subsidiaries of the Buyer, but
only
if such subsidiaries are consolidated with the Buyer in its financial statements
prepared in accordance with generally accepted accounting principles and if
the
investments of such subsidiaries are managed under the Buyer’s direction.
However, such securities were not included if the Buyer is a majority-owned,
consolidated subsidiary of another enterprise and the Buyer is not itself a
reporting company under the Securities Exchange Act of 1934, as
amended.
5. The
Buyer
acknowledges that it is familiar with Rule 144A and understands that the seller
to it 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
Buyer may be in reliance on Rule 144A.
6. Until
the
date of purchase of the Rule 144A Securities, the Buyer 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 Buyer’s purchase of the
Certificates will constitute a reaffirmation of this certification as of the
date of such purchase. In addition, if the Buyer is a bank or savings and loan
is provided above, the Buyer agrees that it will furnish to such parties updated
annual financial statements promptly after they become available.
|
Print
Name of Buyer
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
Date:
|
||
ANNEX
2 TO EXHIBIT J
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Transferees That are Registered Investment Companies]
The
undersigned (the “Buyer”) hereby certifies as follows to the parties listed in
the Rule 144A Transferee Certificate to which this certification relates with
respect to the Certificates described therein:
1. As
indicated below, the undersigned is the President, Chief Financial Officer
or
Senior Vice President of the Buyer or, if the Buyer is a “qualified
institutional buyer” as that term is defined in Rule 144A under the Securities
Act of 1933, as amended (“Rule 144A”) because Buyer is part of a Family of
Investment Companies (as defined below), is such an officer of the
Adviser.
2. In
connection with purchases by Buyer, the Buyer is a “qualified institutional
buyer” as defined in SEC Rule 144A because (i) the Buyer is an investment
company registered under the Investment Company Act of 1940, as amended and
(ii)
as marked below, the Buyer alone, or the Buyer’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 Buyer’s most recent fiscal year. For
purposes of determining the amount of securities owned by the Buyer or the
Buyer’s Family of Investment Companies, the cost of such securities was used,
except (i) where the Buyer or the Buyers Family of Investment Companies reports
its securities holdings in its financial statements on the basis of their market
value, and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence applies,
the securities may be valued at market.
_________
The
Buyer
owned $_________ in securities (other than the excluded securities referred
to
below) as of the end of the Buyer’s most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
_________
The
Buyer
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 Buyer’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 Buyer or are part of the Buyer’s Family of Investment
Companies, (ii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iii) bank deposit notes and certificates of deposit,
(iv) loan participations, (v) repurchase agreements, (vi) securities owned
but
subject to a repurchase agreement and (vii) currency, interest rate and
commodity swaps.
5. The
Buyer
is familiar with Rule 144A and understands that the parties listed in the Rule
144A Transferee Certificate to which this certification relates are relying
and
will continue to rely on the statements made herein because one or more sales
to
the Buyer will be in reliance on Rule 144A. In addition, the Buyer will only
purchase for the Buyer’s own account.
6. Until
the
date of purchase of the Certificates, the undersigned will notify the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates of any changes in the information and conclusions herein. Until such
notice is given, the Buyer’s purchase of the Certificates will constitute a
reaffirmation of this certification by the undersigned as of the date of such
purchase.
|
Print
Name of Buyer or Adviser
|
||
|
Name
|
||
|
Title
|
||
|
IF
AN ADVISER:
|
||
|
Print
Name of Buyer
|
||
|
Date:
|
||
EXHIBIT
K
FORM
OF
TRANSFER AFFIDAVIT FOR RESIDUAL CERTIFICATES
PURSUANT
TO SECTION 5.02(D)
FREMONT
HOME LOAN TRUST 2006-1
ASSET-BACKED
CERTIFICATES, SERIES 2006-1
|
STATE
OF
|
)
|
|
)
ss:
|
|
|
COUNTY
OF
|
)
|
The
undersigned, being first duly sworn, deposes and says as follows:
1. The
undersigned is an officer of, the proposed Transferee of an Ownership Interest
in a Residual Certificate (the “Certificate”)
issued
pursuant to the Pooling and Servicing Agreement dated as of April 1, 2006 (the
“Agreement”),
among
Financial Asset Securities Corp., as depositor (the “Depositor”),
Xxxxx
Fargo Bank, N.A., as servicer (the “Servicer”)
and
Deutsche Bank National Trust Company, as trustee (the “Trustee”).
Capitalized terms used, but not defined herein or in Exhibit 1 hereto,
shall have the meanings ascribed to such terms in the Agreement. The Transferee
has authorized the undersigned to make this affidavit on behalf of the
Transferee for the benefit of the Depositor and the Trustee.
2. The
Transferee is, as of the date hereof, and will be, as of the date of the
Transfer, a Permitted Transferee. The Transferee is acquiring its Ownership
Interest in the Certificate for its own account. The Transferee has no knowledge
that any such affidavit is false.
3. The
Transferee has been advised of, and understands that (i) a tax will be
imposed on Transfers of the Certificate to Persons that are not Permitted
Transferees; (ii) such tax will be imposed on the transferor, or, if such
Transfer is through an agent (which includes a broker, nominee or middleman)
for
a Person that is not a Permitted Transferee, on the agent; and (iii) the
Person otherwise liable for the tax shall be relieved of liability for the
tax
if the subsequent Transferee furnished to such Person an affidavit that such
subsequent Transferee is a Permitted Transferee and, at the time of Transfer,
such Person does not have actual knowledge that the affidavit is
false.
4. The
Transferee has been advised of, and understands that a tax will be imposed
on a
“pass-through entity” holding the Certificate if at any time during the taxable
year of the pass-through entity a Person that is not a Permitted Transferee
is
the record holder of an interest in such entity. The Transferee understands
that
such tax will not be imposed for any period with respect to which the record
holder furnishes to the pass-through entity an affidavit that such record holder
is a Permitted Transferee and the pass-through entity does not have actual
knowledge that such affidavit is false. (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
and, except as may be provided in Treasury Regulations, persons holding
interests in pass-through entities as a nominee for another
Person.)
5. The
Transferee has reviewed the provisions of Section 5.02(d) of the Agreement
and understands the legal consequences of the acquisition of an Ownership
Interest in the Certificate including, without limitation, the restrictions
on
subsequent Transfers and the provisions regarding voiding the Transfer and
mandatory sales. The Transferee expressly agrees to be bound by and to abide
by
the provisions of Section 5.02(d) of the Agreement and the restrictions
noted on the face of the Certificate. The Transferee understands and agrees
that
any breach of any of the representations included herein shall render the
Transfer to the Transferee contemplated hereby null and void.
6. The
Transferee agrees to require a Transfer Affidavit from any Person to whom the
Transferee attempts to Transfer its Ownership Interest in the Certificate,
and
in connection with any Transfer by a Person for whom the Transferee is acting
as
nominee, trustee or agent, and the Transferee will not Transfer its Ownership
Interest or cause any Ownership Interest to be Transferred to any Person that
the Transferee knows is not a Permitted Transferee. In connection with any
such
Transfer by the Transferee, the Transferee agrees to deliver to the Trustee
a
certificate substantially in the form set forth as Exhibit L to the
Agreement (a “Transferor
Certificate”)
to the
effect that such Transferee has no actual knowledge that the Person to which
the
Transfer is to be made is not a Permitted Transferee.
7. The
Transferee has historically paid its debts as they have come due, intends to
pay
its debts as they come due in the future, and understands that the taxes payable
with respect to the Certificate may exceed the cash flow with respect thereto
in
some or all periods and intends to pay such taxes as they become due. The
Transferee does not have the intention to impede the assessment or collection
of
any tax legally required to be paid with respect to the
Certificate.
8. The
Transferee’s taxpayer identification number is ___________.
9. The
Transferee is a U.S. Person as defined in Code
Section 7701(a)(30).
10. The
Transferee is aware that the Certificate may be a “noneconomic residual
interest” within the meaning of proposed Treasury regulations promulgated
pursuant to 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 was to impede the
assessment or collection of tax.
11. The
Transferee will not cause income from the Certificate to be attributable to
a
foreign permanent establishment or fixed base, within the meaning of an
applicable income tax treaty, of the Transferee or any other U.S.
person.
12. Check
one
of the following:
[_] The
present value of the anticipated tax liabilities associated with holding the
Certificate, as applicable, does not exceed the sum of:
|
(i)
|
the
present value of any consideration given to the Transferee to acquire
such
Certificate;
|
|
(ii)
|
the
present value of the expected future distributions on such Certificate;
and
|
|
(iii)
|
the
present value of the anticipated tax savings associated with holding
such
Certificate as the related REMIC generates
losses.
|
For
purposes of this calculation, (i) the Transferee is assumed to pay tax at the
highest rate currently specified in Section 11(b) of the Code (but the tax
rate
in Section 55(b)(1)(B) of the Code may be used in lieu of the highest rate
specified in Section 11(b) of the Code if the Transferee has been subject to
the
alternative minimum tax under Section 55 of the Code in the preceding two years
and will compute its taxable income in the current taxable year using the
alternative minimum tax rate) and (ii) present values are computed using a
discount rate equal to the short-term Federal rate prescribed by Section 1274(d)
of the Code for the month of the transfer and the compounding period used by
the
Transferee.
[_] The
transfer of the Certificate complies with U.S. Treasury Regulations Sections
1.860E-1(c)(5) and (6) and, accordingly,
|
(i)
|
the
Transferee is an “eligible corporation,” as defined in U.S. Treasury
Regulations Section 1.860E-1(c)(6)(i), as to which income from the
Certificate will only be taxed in the United
States;
|
|
(ii)
|
at
the time of the transfer, and at the close of the Transferee’s two fiscal
years preceding the year of the transfer, the Transferee had gross
assets
for financial reporting purposes (excluding any obligation of a person
related to the Transferee within the meaning of U.S. Treasury Regulations
Section 1.860E-1(c)(6)(ii)) in excess of $100 million and net assets
in
excess of $10 million;
|
|
(iii)
|
the
Transferee will transfer the Certificate only to another “eligible
corporation,” as defined in U.S. Treasury Regulations Section
1.860E-1(c)(6)(i), in a transaction that satisfies the requirements
of
Sections 1.860E-1(c)(4)(i), (ii) and (iii) and Section 1.860E-1(c)(5)
of
the U.S. Treasury Regulations;
and
|
|
(iv)
|
the
Transferee determined the consideration paid to it to acquire the
Certificate based on reasonable market assumptions (including, but
not
limited to, borrowing and investment rates, prepayment and loss
assumptions, expense and reinvestment assumptions, tax rates and
other
factors specific to the Transferee) that it has determined in good
faith.
|
[_] None
of
the above.
13. The
Transferee is not an employee benefit plan that is subject to Title I of ERISA
or a plan that is subject to Section 4975 of the Code or a plan subject to
any Federal, state or local law that is substantially similar to Title I of
ERISA or Section 4975 of the Code, and the Transferee is not acting on behalf
of
or investing plan assets of such a plan.
IN
WITNESS WHEREOF, the Transferee has caused this instrument to be executed on
its
behalf, pursuant to authority of its Board of Directors, by its duly authorized
officer and its corporate seal to be hereunto affixed, duly attested, this
day
of
,
20 .
|
[NAME
OF TRANSFEREE]
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
[Corporate
Seal]
ATTEST:
|
[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 the ___________
of
the Transferee, and acknowledged that he executed the same as his free act
and
deed and the free act and deed of the Transferee.
Subscribed
and sworn before me this
day
of
,
20 .
|
NOTARY
PUBLIC
My
Commission expires the __ day
of
_________, 20__
|
1 Buyer
must own and/or invest on a discretionary basis at least $100,000,000 in
securities unless Buyer is a dealer, and, in that case, Buyer must own
and/or
invest on a discretionary basis at least $10,000,000 in
securities.
EXHIBIT
L
FORM
OF
TRANSFEROR CERTIFICATE
[DATE]
Financial
Asset Securities Corp.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
Re:
Fremont
Home Loan Trust 2006-1,
Asset-Backed Certificates Series 2006-1
Ladies
and Gentlemen:
In
connection with our disposition of the above Certificates we certify that (a)
we
understand that the Certificates have not been registered under the Securities
Act of 1933, as amended (the “Act”), and are being disposed by us in a
transaction that is exempt from the registration requirements of the Act, (b)
we
have not offered or sold any Certificates to, or solicited offers to buy any
Certificates from, any person, or otherwise approached or negotiated with any
person with respect thereto, in a manner that would be deemed, or taken any
other action which would result in, a violation of Section 5 of the Act, (c)
to
the extent we are disposing of a Class [ ] Certificate, we have no knowledge
the
Transferee is not a Permitted Transferee and (d) no purpose of the proposed
disposition of a Class [ ] Certificate is to impede the assessment or collection
of tax.
|
Very
truly yours,
|
||
|
TRANSFEROR
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
EXHIBIT
M
FORM
OF
ERISA REPRESENTATION LETTER
_____________,
20__
|
Financial
Asset Securities Corp.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
|
Deutsche
Bank National Trust Company
0000
Xxxx Xx. Xxxxxx Xxxxx
Xxxxx
Xxx, Xxxxxxxxxx 00000-0000
|
Re:
Fremont
Home Loan Trust 2006-1,
Asset-Backed Certificates Series 2006-1
Dear
Sirs:
_______________________
(the “Transferee”) intends to acquire from _____________________ (the
“Transferor”) $____________ Initial Certificate Principal Balance Fremont Home
Loan Trust 2006-1, Asset-Backed Certificates Series 2006-1, Class [C][P][R[-X]]
(the “Certificates”), issued pursuant to a Pooling and Servicing Agreement (the
“Pooling and Servicing Agreement”) dated as of April 1, 2006 among Financial
Asset Securities Corp. as depositor (the “Depositor”), Xxxxx Fargo Bank, N.A. as
servicer (the “Servicer”) and Deutsche Bank National Trust Company 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 the following:
The
Certificates (i) are not being acquired by, and will not be transferred to,
any
employee benefit plan within the meaning of section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”), or other
retirement arrangement, including individual retirement accounts and annuities,
Xxxxx plans and bank collective investment funds and insurance company general
or separate accounts in which such plans, accounts or arrangements are invested,
that is subject to Section 406 of ERISA or Section 4975 of the Internal Revenue
Code of 1986 (the “Code”) (any of the foregoing, a “Plan”), (ii) are not being
acquired with “plan assets” of a Plan within the meaning of the Department of
Labor (“DOL”) regulation, 29 C.F.R.§2510.3-101, and (iii) will not be
transferred to any entity that is deemed to be investing in plan assets within
the meaning of the DOL regulation at 29 C.F.R.§2510.3-101.
|
Very
truly yours,
|
||
|
[Transferee]
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
EXHIBIT
N-1
FORM
CERTIFICATION TO BE PROVIDED BY THE DEPOSITOR WITH FORM 10-K
Re:
Fremont
Home
Loan Trust, Series 2006-1
Asset Backed Certificates, Series 2006-1
I,
[identify the certifying individual], certify that:
l. I
have
reviewed this report on Form 10-K, and all reports on Form 10-D required to
be
filed in respect of the period included in the year covered by this report
in
Form 10-K of Fremont Home Loan Trust 2006-1 (the “Exchange Act periodic
reports”);
2. Based
on
my knowledge, the Exchange Act periodic reports, taken as a whole, do 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 with respect to the period covered
by
this report;
3. Based
on
my knowledge, all of the distribution, servicing and other information required
to be provided under Form 10-D for the period covered by this report is included
in the Exchange Act periodic reports;
4. Based
on
my knowledge and upon the annual compliance statement required in this report
under Item 1123 of Regulation AB, and except as disclosed in the Exchange Act
periodic reports, the Servicer has fulfilled each of its obligations under
the
pooling and servicing agreement; and
5. All
of
the reports on assessment of compliance with servicing criteria for asset-backed
securities and their related attestation reports on assessment of compliance
with servicing criteria for asset-backed securities required to be included
in
this report in accordance with Item 1122 of Regulation AB and Exchange Act
Rules
13a-18 and 15d-18 have been included as an exhibit to this report, except as
otherwise disclosed in this report. Any material instances of noncompliance
described in such reports have been disclosed in this report on Form
10-K.
In
giving
the certifications above, I have reasonably relied on information provided
to me
by the following unaffiliated parties: Xxxxx Fargo Bank, N.A. and Deutsche
Bank
National Trust Company.
|
FINANCIAL
ASSET SECURITIES CORP.
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
Date:
|
||
EXHIBIT
N-2
FORM
CERTIFICATION TO BE
PROVIDED
TO DEPOSITOR BY THE TRUSTEE
Re:
Fremont
Home Loan Trust 2006-1 (the “Trust”)
Asset-Backed
Certificates, Series 2006-1
I,
[identify the certifying individual], a [title] of Deutsche Bank National Trust
Company, as Trustee of the Trust, hereby certify to Financial Asset Securities
Corp. (the “Depositor”), and its officers, directors and affiliates, and with
the knowledge and intent that they will rely upon this certification,
that:
1. I
have
reviewed the annual report on Form 10-K for the fiscal year [___], and all
reports on Form 10-D required to be filed in respect of the period covered
by
such Form 10-K of the Depositor relating to the above-referenced trust (the
“Exchange Act periodic reports”)
2. Based
on
my knowledge, the information prepared by the Trustee, contained, in these
distribution reports taken as a whole, do 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 with respect to the period covered by this report;
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
Pooling and Servicing Agreement, dated April 1, 2006 (the “Pooling and Servicing
Agreement”), among the Depositor as depositor, Xxxxx Fargo Bank, N.A. as
servicer and Deutsche Bank National Trust Company as trustee.
|
DEUTSCHE
BANK NATIONAL TRUST COMPANY, as Trustee
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
Date:
|
||
EXHIBIT
N-3
FORM
CERTIFICATION TO BE
PROVIDED
TO DEPOSITOR BY THE SERVICER
Re:
Fremont
Home Loan Trust, Series 2006-1
Asset
Backed Certificates, Series 2006-1
I,
[identify the certifying individual], certify to Financial Asset Securities
Corp. (the “Depositor”), the Trustee and their respective officers, directors
and affiliates, and with the knowledge and intent that they will rely upon
this
certification, that:
1.
Based
on
my knowledge, the information in the annual compliance statement, the Annual
Independent Public Accountant's Servicing Report and all servicing reports,
officer's certificates and other information relating to the servicing of the
Mortgage Loans 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 date of this certification;
2. The
servicing information required to be provided by the Servicer under the Pooling
and Servicing Agreement has been provided to the Depositor and the
Trustee;
3. I
am is
responsible for reviewing the activities performed by the Servicer under the
Pooling and Servicing Agreement and based upon the review required by the
Pooling and Servicing Agreement, and except as disclosed in the annual
compliance statement or the Annual Independent Public Accountant's Servicing
Report, the Servicer has, as of the date of this certification fulfilled its
obligations under the Pooling and Servicing Agreement; and
4. Such
officer has disclosed to the Depositor and the Trustee all significant
deficiencies relating to the Servicer’s compliance with the minimum servicing
standards in accordance with a review conducted in compliance with the Uniform
Single Attestation Program for Mortgage Bankers or similar standard as set
forth
in the Pooling and Servicing Agreement.
5. All
of
the reports on assessment of compliance with servicing criteria for asset-backed
securities and their related attestation reports on assessment of compliance
with servicing criteria for asset-backed securities required to be included
in
this report in accordance with Item 1122 of Regulation AB and Exchange Act
Rules
13a-18 and 15d-18 have been included as an exhibit to this report, except as
otherwise disclosed in this report. Any material instances of noncompliance
described in such reports have been disclosed in this report on Form
10-K.
Capitalized
terms used but not defined herein have the meanings ascribed to them in
the
Pooling
and Servicing Agreement, dated April 1, 2006 (the “Pooling and Servicing
Agreement”), among the Depositor, Xxxxx Fargo Bank, N.A. as servicer and
Deutsche Bank National Trust Company as trustee.
|
XXXXX
FARGO BANK, N.A.
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
Date:
|
||
EXHIBIT
O
FORM
OF
CAP CONTRACT
HSBC
Bank
USA, National Association
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
XX 00000
Fax:
(000) 000-0000
Xxxxx
00, 0000
Xxxxxxxx
Bank National Trust Company,
not
in
its individual capacity but solely as trustee
on
behalf
of the Fremont Home Loan Trust 2006-1,
Asset-Backed
Certificates, Series 0000-0
x/x
Xxxxxxxx Xxxx National Trust Company
0000
X.
Xx. Xxxxxx Xxxxx
Xxxxx
Xxx. XX 00000
Attn:
Trust Admin, Fremont 2006-1
Tel:
000-000-0000
Fax:
000-000-0000
Subject: Interest
Rate Cap
Transaction
Reference Number: 395090HN/395091HN
The
purpose of this letter agreement (this “Confirmation”) is to confirm the terms
and conditions of the Transaction entered into between us on the Trade Date
specified below, and subsequently amended as set out below (the
“Transaction”) between HSBC Bank USA, N.A. (“HSBC”) and Fremont 2006-1. This
Confirmation constitutes a “Confirmation” as referred to in the ISDA Form Master
Agreement (as defined below), as well as a “Schedule” as referred to in the ISDA
Form Master Agreement. In this Confirmation “Party A” means HSBC and “Party B”
means Fremont 2006-1.
|
1.
|
This
Agreement is subject to and incorporates the 2000 ISDA Definitions
(the
“Definitions”), as published by the International Swaps and Derivatives
Association, Inc. (“ISDA”). You and we have agreed to enter into this
Agreement in lieu of negotiating a Schedule to the 1992 ISDA Master
Agreement (Multicurrency—Cross Border) form (the
“ISDA Form Master Agreement”) but, rather, an ISDA Form Master Agreement
shall be deemed to have been executed by you and us on the date
we entered
into the Transaction. In the event of any inconsistency between
the
provisions of this Agreement and the Definitions or the ISDA Form
Master
Agreement, this Agreement shall prevail for purposes of the Transaction.
Terms used and not otherwise defined herein, in the ISDA Form
Master Agreement
or the Definitions shall have the meanings assigned to them in
the Pooling
and Servicing Agreement, dated as of April 1, 2006, among Financial
Asset
Securities Corp. as depositor, Xxxxx Fargo Bank, N.A., as servicer
and
Deutsche Bank National Trust Company, as trustee (the “Pooling and
Servicing Agreement”). Each reference to a “Section” or to a “Section” “of
this Agreement” will be construed as a reference to a Section of the 1992
ISDA Form Master Agreement.
|
Each
of
Party A and Party B represents to the other that it has entered into this
Transaction in reliance upon such tax, accounting, regulatory, legal, and
financial advice as it deems necessary and not upon any view expressed by
the
other and, in the case of Party B, it has entered into this transaction pursuant
to the direction received by it pursuant to the Pooling and Servicing
Agreement.
|
2.
|
The
terms of the particular Transaction to which this Confirmation
relates are
as follows:
|
Notional
Amount:
With
respect to any Calculation Period, the lesser of (i) the amount as set forth
in
Exhibit I, which is attached hereto and incorporated by reference into this
Confirmation and (ii) the aggregate Certificate Principal Balance of the
Floating Rate Certificates
Trade
Date:
April
6,
2006
Effective
Date:
April
13,
2006
Termination
Date:
March
25,
2007, subject to adjustment in accordance with the Following Business Day
Convention.
Fixed
Amounts:
Fixed
Amount
Payer:
Party
B
Fixed
Amount:
USD
8,000.00
Fixed
Rate Payer
Payment
Date:
April
13,
2006
Party
A
Floating Amounts:
Floating
Rate Payer
Period
End
Dates:
The
25th
calendar day of each month, commencing on May 25, 2006 and ending on the
Termination Date, inclusive, subject to adjustment in accordance with the
Following Business Day Convention
Floating
Rate Payer
Payment
Dates:
Early
Payment - One (1) Business Day preceding each Floating Rate Payer Period
End
Date.
Cap
Rate:
As
set
forth in Exhibit I, which is attached hereto and incorporated by reference
into
this Confirmation
Floating
Rate
Option: USD-LIBOR-BBA,
provided, however, if the Floating Rate determined from such Floating Rate
Option for any Calculation Period is greater than 10.50% then the Floating
Rate
for such Calculation Period shall be deemed equal to 10.50%.
Designated
Maturity:
One
month
Spread:
None
Floating
Rate
Day
Count
Fraction:
Actual/360
Reset
Dates:
The
first
day of each Calculation Period
Business
Days:
New
York
Calculation
Agent:
Party
A
3. Provisions
Deemed Incorporated in a Schedule to the ISDA Form Master Agreement:
1) The
parties agree that subparagraph (ii) of Section 2(c) of the ISDA Form Master
Agreement will apply to any Transaction.
2) Termination
Provisions.
For
purposes of the ISDA Form Master Agreement:
(a) “Specified
Entity”
is not
applicable to Party A or Party B for any purpose.
(b) “Specified
Transaction”
is not
applicable to Party A or Party B for any purpose, and, accordingly, Section
5(a)(v) shall not apply to Party A or Party B.
(c) The
“Cross
Default”
provisions of Section 5(a)(vi) shall not apply to Party A or Party
B.
(d) The
“Credit
Event Upon Merger”
provisions of Section 5(b)(iv) will not apply to Party A or Party
B.
(e) With
respect to Party B, the “Bankruptcy”
provision of Section 5(a)(vii)(2) of the ISDA Form Master Agreement shall
not
apply.
(f) The
“Automatic
Early Termination”
provision of Section 6(a) will not apply to Party A or to Party B.
(g) Payments
on Early Termination.
For the
purpose of Section 6(e) of the ISDA Form Master Agreement:
(i) Market
Quotation will apply.
(ii) The
Second Method will apply.
(h) “Termination
Currency” means United States Dollars.
(i) Events
of Default.
The
provisions of Sections 5(a)(ii), 5(a)(iii) and 5(a)(iv) shall not apply to
Party
B. The provisions of Sections 5(a)(ii) and 5(a)(iv) shall not apply to Party
A.
(j) Tax
Event.
The
provisions of Section 2(d)(i)(4) and 2(d)(ii) of the printed ISDA Form Master
Agreement shall not apply to Party B and Party B shall not be required to
pay
any additional amounts referred to therein.
3) Tax
Representations.
(a) Payer
Representations.
For the
purpose of Section 3(e) of the ISDA Form Master Agreement, Party A and Party
B
will make the following representations:
It
is not
required by any applicable law, as modified by the practice of any relevant
governmental revenue authority, of any Relevant Jurisdiction to make any
deduction or withholding for or on account of any Tax from any payment (other
than interest under Section 2(e), 6(d)(ii) or 6(e) of the ISDA Form Master
Agreement) to be made by it to the other party under this Agreement. In making
this representation, it may rely on:
(i) the
accuracy of any representations made by the other party pursuant to Section
3(f)
of the ISDA Form Master Agreement;
(ii) the
satisfaction of the agreement contained in Section 4(a)(iii) of the ISDA
Form
Master Agreement and the accuracy and effectiveness of any document provided
by
the other party pursuant to Section 4(a)(iii) of the ISDA Form Master Agreement;
and
(iii) the
satisfaction of the agreement of the other party contained in Section 4(d)
of
the ISDA Form Master Agreement, provided that it shall not be a breach of
this
representation where reliance is placed on clause (ii) and the other party
does
not deliver a form or document under Section 4(a)(iii) by reason of material
prejudice to its legal or commercial position.
(b) Payee
Representations.
For the
purpose of Section 3(f) of the ISDA Form Master Agreement, each of Party
A and
Party B make the following representations.
The
following representation will apply to Party A:
Party
A
is a national banking association organized under the federal laws of the
United
States and its U.S. taxpayer identification number is 00-0000000.
The
following representation will apply to Party B:
The
beneficial owner of the payments made to it under the Agreement is either
(i) a
“U.S. person” (as that term is used in Section 1.1441-4(a)(3)(ii) of the United
States Treasury Regulations) for U.S. federal income tax purposes or (ii)
a
“non-U.S. branch of a foreign person” (as that term is used in Section
1.1441-4(a)(3)(ii) of the United States Treasury Regulations) for U.S. federal
income tax purposes and a “foreign person” (as that term is used in Section
1.6041-4(a)(4) of the United States Treasury Regulations) for U.S. federal
income tax purposes.
4) Limitation
on Events of Default.
Notwithstanding the terms of Sections 5 and 6 of the ISDA Form Master Agreement,
if at any time and so long as Party B has satisfied in full all its payment
obligations under Section 2(a)(i) of the ISDA Form Master Agreement and has
at
the time no future payment obligations, whether absolute or contingent, under
such Section, then unless Party A is required pursuant to appropriate
proceedings to return to Party B or otherwise returns to Party B upon demand
of
Party B any portion of any such payment, (a) the occurrence of an event
described in Section 5(a) of the ISDA Form Master Agreement with respect
to
Party B shall not constitute an Event of Default or Potential Event of Default
with respect to Party B as Defaulting Party and (b) Party A shall be entitled
to
designate an Early Termination Date pursuant to Section 6 of the ISDA Form
Master Agreement only as a result of the occurrence of a Termination Event
set
forth in either Section 5(b)(i) with respect to either Party A or Party B
as the
Affected Party.
5) Documents
to be Delivered.
For the
purpose of Section 4(a)(i) and 4(a)(iii):
(1)
Tax
forms, documents, or certificates to be delivered are:
|
Party
required to deliver document
|
Form/Document/
Certificate
|
Date
by which to Be delivered
|
|
Party
A and
Party
B
|
Any
document required or reasonably requested to allow the other party
to make
payments under this Agreement without any deduction or withholding
for or
on the account of any Tax or with such deduction or withholding
at a
reduced rate.
|
Promptly
after the earlier of (i) reasonable demand by either party or (ii)
learning that such form or document is
required.
|
(2)
Other
documents to be delivered are:
|
Party
required to deliver document
|
Form/Document/
Certificate
|
Date
by which to Be delivered
|
Covered
by Section 3(d) Representation
|
|
Party
A and Party B
|
Any
documents to evidence the authority of the delivering party for
it to
execute and deliver this Confirmation.
|
Upon
the execution and delivery of this Agreement and such
Confirmation.
|
Yes
|
|
Party
A and Party B
|
A
certificate of an authorized officer of the party, as to the incumbency
and authority of the respective officers of the party signing this
Confirmation.
|
Upon
the execution and delivery of this Confirmation.
|
Yes
|
|
Party
A
|
Legal
opinion(s) with respect to such party and its Credit Support Provider,
if
any, for it, reasonably satisfactory in form and substance to the
other
party relating to the enforceability of the party’s obligations under this
Agreement.
|
Upon
the execution and delivery of this Agreement.
|
No
|
|
Party
A and Party B
|
Indemnification
agreement executed by Party A and Financial Asset Securities Corp.
with
respect to information included in any free writing prospectus
and the
prospectus supplement
related to the Class A Certificates and Class M Certificates. |
Concurrently
with the printing of any preliminary prospectus supplement and
the
prospectus supplement related to the Class A and Class M
Certificates.
|
No
|
|
Party
A
|
A
copy of the most recent annual report of such party (only if available)
and its Credit Support Provider, if any, containing in all cases
audited
consolidated financial statements for each fiscal year certified
by
independent certified public accountants and prepared in accordance
with
generally accepted accounting principles in the United States or
in the
country in which such party is organized.
|
Promptly
after request by the other party.
|
Yes
|
|
Party
B
|
Each
other report or other document required to be delivered by or to
Party B
under the terms of the Pooling and Servicing Agreement, other than
those required to be delivered directly by the Trustee to Party A thereunder. |
Promptly
upon request by Party A, or with respect to any particular type
of report
or other document as to which Party A has previously made request
to
receive all reports or documents of that type, promptly upon delivery
or
receipt of such report or document by Party B.
|
Yes
|
6) Other
Provisions.
(a) Address
for Notices:
For the
purposes of Section 12(a) of this Agreement:
Address
for notices or communications to Party A:
Address: 000
Xxxxx
Xxxxxx, Xxx Xxxx, XX 00000
Attention:
Xxxxxxxxx
XxXxxxxx
Facsimile:
000-000-0000
Telephone:
000-000-0000
Please
direct all settlement inquiries to:
HSBC
Bank
USA, National Association
Derivative
Settlements
Attention:
Xxxxxxx
Xxxxxxx
Telephone: (000)
000-0000
Fax:
(000)
000-0000
Address
for notices or communications to Party B:
Address: Fremont
0000-0
x/x
Xxxxxxxx Xxxx National Trust Company
0000
X.
Xx. Xxxxxx Xxxxx
Xxxxx
Xxx, XX 00000
Attn:
Trust Admin, Fremont 2006-1
Facsimile
No.: 000-000-0000
Telephone
No: 000-000-0000
(For
all
purposes)
(b) Process
Agent.
For the
purpose of Section 13(c):
Party
A
appoints as its Process Agent: Not Applicable
Party
B
appoints as it Process Agent: Not Applicable
(c) Offices.
The
provisions of Section 10(a) will not apply to this Agreement; for purposes
of
this Transaction, it will be deemed that neither Party A nor Party B have
any
Offices other than as set forth in the Notices Section and Party A agrees
that,
for purposes of Section 6(b) of the ISDA Form Master Agreement, it shall
be
deemed not to have any Office other than one in the United States.
(d) Multibranch
Party.
For the
purpose of Section 10(c) of the ISDA Form Master Agreement:
Party
A
is not a Multibranch Party.
Party
B
is not a Multibranch Party.
(e) Calculation
Agent.
The
Calculation Agent is Party A; provided
however,
if an
Event of Default has occurred with respect to Party A, then Party B or a
Reference Market-maker designated by Party B shall be Calculation
Agent.
(f) Credit
Support Document.
Initially with respect to Party A, not applicable; however,
if
required pursuant to Paragraph 3(6)(q)(iv) hereof, a guaranty satisfactory
to
Party B and the Rating Agencies. With respect to Party B, not applicable.
(g) Credit
Support Provider.
Party
A:
Not Applicable
Party
B:
Not Applicable
(h) Governing
Law.
The
parties to this ISDA Agreement hereby agree that the law of the State of
New
York shall govern their rights and duties in whole, without regard to the
conflict of law provisions thereof other than New York General Obligations
Law
Sections 5-1401 and 5-1402.
(i) Non-Petition.
Party A
hereby irrevocably and unconditionally agrees that it will not institute
against, or join any other person in instituting against or cause any other
person to institute against the Fremont 2006-1, any bankruptcy, reorganization,
arrangement, insolvency, or similar proceeding under the laws of the United
States, or any other jurisdiction for the non-payment of any amount due
hereunder or any other reason until the payment in full of the Ceritificates
(as
defined in the Pooling and Service Agreement) and the expiration of a period
of
one year plus ten days (or, if longer, the applicable preference period)
following such payment.
(j)
Limitation
of Liability.
It is
expressly understood and agreed by the parties hereto that (a) this
Agreement is executed and delivered by Deutsche Bank National Trust Company
(“Deutsche Bank”), not individually or personally but solely as the trustee, in
the exercise of the powers and authority conferred and vested in it,
(b) the representations, undertakings and agreements herein made on the
part of the Trust are made and intended not as personal representations,
undertakings and agreements by Deutsche Bank but are made and intended for
the
purpose of binding only the Trust, (c) nothing herein contained shall be
construed as creating any liability on Deutsche Bank, individually or
personally, to perform any covenant either expressed or implied contained
herein, all such liability, if any, being expressly waived by the parties
who
are signatories to this letter agreement and by any person claiming by, through
or under such parties and (d) under no circumstances shall Deutsche Bank be
personally liable for the payment of any indebtedness or expenses of the
Trust
or be liable for the breach or failure of any obligation, representation,
warranty or covenant made or undertaken by the Trust under this letter
agreement.
(k)
Severability.
If any
term, provision, covenant, or condition of this Agreement, or the application
thereof to any party or circumstance, shall be held to be invalid or
unenforceable (in whole or in part) for any reason, the remaining terms,
provisions, covenants, and conditions hereof shall continue in full force
and
effect and shall remain applicable to all other parties and circumstances
as if
this Agreement had been executed with the invalid or unenforceable portion
eliminated, so long as this Agreement as so modified continues to express,
without material change, the original intentions of the parties as to the
subject matter of this Agreement and the deletion of such portion of this
Agreement will not substantially impair the respective benefits or expectations
of the parties.
The
parties shall endeavor to engage in good faith negotiations to replace any
invalid or unenforceable term, provision, covenant or condition with a valid
or
enforceable term, provision, covenant or condition, the economic effect of
which
comes as close as possible to that of the invalid or unenforceable term,
provision, covenant or condition.
(l) Consent
to Recording.
Each
party hereto consents to the monitoring or recording, at any time and from
time
to time, by the other party of any and all communications between officers
or
employees of the parties, waives any further notice of such monitoring or
recording, and agrees to notify its officers and employees of such monitoring
or
recording.
(m) Waiver
of Jury Trial.
Each
party to this Agreement respectively waives any right it may have to a trial
by
jury in respect of any Proceedings relating to this Agreement, any Credit
Support Document or any of the transactions contemplated hereby.
(n) Set-Off.
Notwithstanding
any provision of this Agreement or any other existing or future agreement,
each
party irrevocably waives any and all rights it may have to set off, net,
recoup
or otherwise withhold or suspend or condition payment or performance of any
obligation between it and the other party hereunder against any obligation
between it and the other party under any other agreements. The provisions
for
Set-off set forth in Section 6(e) of the ISDA Form Master Agreement shall
not apply for purposes of this Transaction.
(o) “Affiliate”
will
have the meaning specified in Section 14 of the ISDA Form Master Agreement,
provided that Party A and Party B shall be deemed to not have any Affiliates
for
purposes of this Agreement, including for purposes of Section
6(b)(ii).
(p) Section
3
of the ISDA Form Master Agreement is hereby amended by adding at the end
thereof
the following subsection (g):
“(g)
Relationship
Between Parties.
Each
party represents to the other party on each date when it enters into a
Transaction that:--
(1) Nonreliance.
(i) It
is not relying on any statement or representation of the other party regarding
the Transaction (whether written or oral), other than the representations
expressly made in this Agreement or the Confirmation in respect of that
Transaction and (ii) it has consulted with its own legal, regulatory, tax,
business, investment, financial and accounting advisors to the extent it
has
deemed necessary, and it has made its own investment, hedging and trading
decisions based upon its own judgment and upon any advice from such advisors
as
it has deemed necessary and not upon any view expressed by the other
party.
(2) Evaluation
and Understanding.
(i) It
has
the capacity to evaluate (internally or through independent professional
advice)
the Transaction and has made its own decision to enter into the Transaction
and
in the case of Party B, it has been directed by the Pooling and Servicing
Agreement to enter into this Transaction; and
(ii) It
understands the terms, conditions and risks of the Transaction and is willing
and able to accept those terms and conditions and to assume those risks,
financially and otherwise.
(3) Purpose.
It is
entering into the Transaction for the purposes of managing its borrowings
or
investments, hedging its underlying assets or liabilities or in connection
with
a line of business.
(4) Status
of Parties.
The
other party is not acting as agent, fiduciary or advisor for it in respect
of
the Transaction,
(5) Eligible
Contract Participant.
It is
an “eligible swap participant” as such term is defined in Section 35.1(b)(2) of
the regulations (17 C.F.R 35) promulgated under, and it constitutes an “eligible
contract participant” as such term is defined in Section 1(a)12 of the Commodity
Exchange Act, as amended.”
(q)
The
ISDA Form Master Agreement is hereby amended as follows
(i) The
word
“third” shall be replaced by the word “second” in the third line of
Section 5(a)(i) of the ISDA Form Master Agreement.
(ii) Transfer,
Amendment and Assignment.
No
transfer, amendment, waiver, supplement, assignment or other modification
of
this Transaction shall be permitted by either party (other than a change
of
Counterparty in connection with a change of Trustee in accordance with the
Pooling and Servicing Agreement) unless Standard and Poor’s, a Division of the
McGraw Hill Companies (“S&P”) has been provided notice of the same and
confirms in writing (including by facsimile transmission) that it will not
downgrade, qualify, withdraw or otherwise modify its then-current rating
of the
Certificates.
(iii) Additional
Termination Events. Additional
Termination Events will apply:
(a)
If a
Rating Agency Downgrade has occurred and Party A has not complied with Paragraph
3(6)(q)(iv) below, then an Additional Termination Event shall have occurred
with
respect to Party A and Party A shall be the sole Affected Party with respect
to
such an Additional Termination Event.
(b)
If,
upon the occurrence of a Swap Disclosure Event (as defined in Paragraph 3(6)(r)
below) Party A has not, within five (5) Business Days after such Swap Disclosure
Event complied with any of the provisions set forth in Paragraph 3(6)(r)(iii)
below, then an Additional Termination Event shall have occurred with respect
to
Party A and Party A shall be the sole Affected Party with respect to such
Additional Termination Event.
(iv) Rating
Agency Downgrade.
In
the
event that Party A’s short-term unsecured and unsubordinated debt rating is
reduced below "A-1" by S&P (or if its short-term rating is not available by
S&P, in the event that its long-term unsecured and unsubordinated debt
rating is withdrawn or reduced below “A+” by S&P), such rating thresholds,
“Approved Rating Thresholds”), then within 30 days after such rating withdrawal
or downgrade (unless, within 30 days after such withdrawal or downgrade S
&
P has reconfirmed its rating for the Notes which was in effect immediately
prior
to such withdrawal or downgrade), Party A shall, subject to the Rating Agency
Condition, at its own expense:
(a) assign
this Transaction to another counterparty, which counterparty shall have the
Approved Rating Thresholds and shall have been approved by Party B on terms
substantially similar to the terms of this Confirmation;
(b) obtain
guaranty of, or a contingent agreement of another person with the Approved
Rating Thresholds, to honor Party A’s obligations under this Confirmation;
provided that such other person has been approved by Party B;
(c) post
collateral which will be sufficient to S & P to maintain or restore the
ratings of the Notes existing immediately prior to such withdrawal or downgrade
of Party A’s ratings; or
(d) establish
any other arrangement satisfactory to Party B and S & P, in each case,
sufficient to maintain or restore the ratings of the Notes existing immediately
prior to such withdrawal or downgrade of Party A’s ratings.
Notwithstanding
the previous paragraph, in the event that Party A’s short-term unsecured and
unsubordinated debt rating is withdrawn or reduced below “A-3” by S&P or, if
there is no short-term rating, its long-term unsecured and unsubordinated
debt
rating is withdrawn or reduced below “BBB-” by S&P, then within 10 days of
such rating withdrawal or downgrade (unless, within 10 days after such
withdrawal or downgrade S&P has reconfirmed the rating of the Notes which
was in effect immediately prior to such withdrawal or downgrade), Party A
shall, subject to the Rating Agency Condition, at its own expense, assign
this
Transaction to another counterparty with the Approved Rating Thresholds and
approved by Party B on terms substantially similar to this Confirmation and
obtain a confirmation from S&P that such action is sufficient to maintain or
restore the immediately prior ratings of the Notes.
For
purposes of these provisions, “Rating Agency Condition” means, with respect to
any particular proposed act or omission to act hereunder in connection with
a
withdrawal or downgrade of any of Party A’s ratings as described above that
Party A must consult with and receive from S
&
P
a written confirmation, prior to taking any such action, that such withdrawal
or
downgrade of any of Party A’s ratings, after giving effect to any such proposed
action or omission, would not cause a downgrade or withdrawal of the ratings
of
the Notes existing immediately prior to such withdrawal or downgrade of Party
A’s ratings
r)
Compliance with Regulation AB.
(i) Party
A
agrees and acknowledges that Financial Asset Securities Corp. (“the Depositor”)
is required under Regulation AB as defined under the Pooling and Servicing
Agreement, to disclose certain financial information regarding Party A or
its
group of affiliated entities, if applicable, depending on the aggregate
“significance percentage” of this Agreement and any other derivative contracts
between Party A or its group of affiliated entities, if applicable, and
Counterparty, as calculated from time to time in accordance with Item 1115
of
Regulation AB.
(ii) It
shall
be a swap disclosure event (“Swap Disclosure Event”) if, on any Business Day
after the date hereof, the Depositor requests from Party A the applicable
financial information described in Item 1115 of Regulation AB (such request
to
be based on a reasonable determination by the Depositor, in good faith, that
such information is required under Regulation AB) (the “Swap
Financial Disclosure”).
(iii) Upon
the
occurrence of a Swap Disclosure Event, Party A, at its own expense, shall
(1)(a)
either (i) provide to the Depositor the current Swap Financial Disclosure
in an
XXXXX-compatible format (for example, such information may be provided in
Microsoft Word® or Microsoft Excel® format but not in .pdf format) or (ii)
provide written consent to the Depositor to incorporation by reference of
such
current Swap Financial Disclosure that are filed with the Securities and
Exchange Commission in the reports of the Trust filed pursuant to the Exchange
Act, (b) if applicable, cause its outside accounting firm to provide its
consent
to filing or incorporation by reference of such accounting firm’s report
relating to their audits of such current Swap Financial Disclosure in the
Exchange Act Reports of the Depositor, and (c) provide to the Depositor any
updated Swap Financial Disclosure with respect to Party A or any entity that
consolidates Party A within five days of the release of any such updated
Swap
Financial Disclosure; or (2) secure another entity to replace Party A as
party
to this Agreement on terms substantially similar to this Agreement and subject
to prior notification to the Swap Rating Agencies, which entity (or a guarantor
therefor) meets or exceeds the Approved Rating Thresholds and which satisfies
the Rating Agency Condition and which entity is able to comply with the
requirements of Item 1115 of Regulation AB.
(iv) Party
A
agrees that, in the event that Party A provides Swap Financial Disclosure
to the
Depositor in accordance with clause (iii)(a) of Paragraph 3(6)(r) or causes
its
affiliate to provide Swap Financial Disclosure to the Depositor in accordance
with clause (iii)(c) of Paragraph 3(6)(r), it will indemnify and hold harmless
the Depositor, its respective directors or officers and any person controlling
the Depositor, from and against any and all losses, claims, damages and
liabilities caused by any untrue statement or alleged untrue statement of
a
material fact contained in such Swap Financial Disclosure or caused by any
omission or alleged omission to state in such Swap Financial Disclosure a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(v) If
the
Depositor reasonably requests, Party A shall provide such other information
as
may be necessary for the Depositor to comply with Item 1115 of Regulation
AB.
(vi)
The
Depositor shall be an express third party beneficiary of this Agreement
as if a
party hereto to the extent of the Depositor’ rights explicitly specified in this
Paragraph 3(6)(r).
Paragraph 3(6)(r).
4. Account
Details:
Payments
to Party
A:
HSBC
Bank
USA, National Association
ABA
#
000-000-000
For
credit to Department 299
A/C:
000-00000-0
HSBC
Derivative Products Group
Payments
to Party
B:
Deutsche
Bank Trust Company Americas
ABA 000-000-000
A/C 01419663
A/C Name: NYLTD Funds Control - Stars West
Ref: Fremont 2006-1 Cap
5. Office:
|
Party
A is acting through its New York Office for the purposes of this
Transaction.
|
|
6.
|
Please
confirm that the forgoing correctly sets forth the terms of our agreement
by
having an authorized officer sign this Confirmation and return it via facsimile
to:
HSBC
Bank
USA, National Association
Swap
Documentation
Attention:
Xxxxxxxxx
XxXxxxxx
Telephone:
(000)
000-0000
Fax: (000)
000-0000
Please
direct all settlement inquiries to:
HSBC
Bank
USA, National Association
Derivative
Settlements
Attention:
Xxxxxxx
Xxxxxxx
Telephone:
(000)
000-0000
Fax: (000)
000-0000
This
message will be the only form of Confirmation dispatched by us. Please execute
and return it to us by facsimile immediately. If you wish to exchange hard
copy
forms of this Confirmation, please contact us.
Yours
sincerely,
HSBC
BANK
USA, NATIONAL ASSOCIATION
By:
_________________________
Authorized
Signature
Confirmed
as of the date first written above:
DEUTSCHE
BANK NATIONAL TRUST COMPANY, NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS
TRUSTEE ON BEHALF OF THE FREMONT HOME LOAN TRUST 2006-1, ASSET-BACKED
CERTIFICATES, SERIES 2006-1
By:
________________________
Name:
Title:
Attachment
Exhibit
I
|
For
the Calculation Periods
|
Notional
Amount
|
Party
A
|
|
|
From
and including:*
|
To
but excluding:*
|
in
USD:
|
Cap
Rate:
|
|
The
Effective Date
|
May
25, 2006
|
987,763,000.00
|
5.66219%
|
|
May
25, 2006
|
June
25, 2006
|
981,341,686.00
|
7.67117%
|
|
June
25, 2006
|
July
25, 2006
|
973,714,586.00
|
7.92665%
|
|
July
25, 2006
|
August
25, 2006
|
964,890,954.00
|
7.67070%
|
|
August
25, 2006
|
September
25, 2006
|
954,884,609.00
|
7.67041%
|
|
September
25, 2006
|
October
25, 2006
|
943,713,771.00
|
7.92574%
|
|
October
25, 2006
|
November
25, 2006
|
931,401,067.00
|
7.66970%
|
|
November
25, 2006
|
December
25, 2006
|
917,973,497.00
|
7.92492%
|
|
December
25, 2006
|
January
25, 2007
|
903,462,388.00
|
7.66882%
|
|
January
25, 2007
|
February
25, 2007
|
887,904,294.00
|
7.66831%
|
|
February
25, 2007
|
The
Termination Date
|
871,342,021.00
|
8.48930%
|
*
All
dates listed above (with the exception of the Effective Date), are subject
to
adjustment in accordance with the Following Business Day Convention
EXHIBIT
P
FORM
OF
ANNUAL STATEMENT AS TO COMPLIANCE
___________________
Trust, Series 200_-___
_______________
Pass-Through Certificates
I,
_____________________, hereby certify that I am a duly appointed
__________________________ of _______________________________ (the
“[Servicer]”), and further certify as follows:
1. This
certification is being made pursuant to the terms of the Pooling and Servicing
Agreement, dated as of ____________, _____ (the “Agreement”), among
______________________, as depositor, the [Servicer], as [servicer] and
________________, as trustee.
2. I
have
reviewed the activities of the [Servicer] during the preceding year and the
[Servicer’s] performance under the Agreement and to the best of my knowledge,
based on such review, the [Servicer] has fulfilled all of its obligations under
the Agreement throughout the year.
Capitalized
terms not otherwise defined herein have the meanings set forth in the
Agreements.
Dated:
_________________
IN
WITNESS WHEREOF, the undersigned has executed this Certificate as of
_____________.
|
By:
|
||
|
Name:
|
||
|
Title:
|
I,
_________________________, a (an) __________________ of the [Servicer], hereby
certify that _________________ is a duly elected, qualified, and acting
_______________________ of the [Servicer] and that the signature appearing
above
is his/her genuine signature.
IN
WITNESS WHEREOF, the undersigned has executed this Certificate as of
______________.
|
By:
|
||
|
Name:
|
||
|
Title:
|
EXHIBIT
Q
FORM
OF
INTEREST RATE SWAP AGREEMENT
HSBC
Bank
USA, National Association
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
XX 00000
Fax:
(000) 000-0000
Xxxxx
00,
0000
Xxxxxxxx
Bank National Trust Company,
not
individually, but solely as
Supplemental
Interest Trust Trustee
on
behalf
of the Supplemental Interest Trust
(each
as
defined herein) with respect to
Fremont
Home Loan Trust 2006-1,
Asset-Backed
Certificates, Series 0000-0
x/x
Xxxxxxxx Xxxx National Trust Company
0000
X.
Xx. Xxxxxx Xxxxx
Xxxxx
Xxx. XX 00000
Attn:
Trust Admin, Fremont Home Loan Trust 2006-1
Tel:
000-000-0000
Fax:
000-000-0000
Subject: Interest
Rate Swap
Transaction
Reference Number: 395081HN
The
purpose of this letter agreement (this “Confirmation”) is to confirm the terms
and conditions of the Transaction entered into between us on the Trade
Date
specified below, and subsequently amended as set out below (the
“Transaction”) between HSBC Bank USA, N.A. (“HSBC”) and Deutsche Bank National
Trust Company, not individually, but solely as Supplemental Interest Trust
Trustee (“Supplemental Interest Trust Trustee”) on behalf of the Supplemental
Interest Trust (“Supplemental Interest Trust”) with respect to Fremont Home Loan
Trust 2006-1, Asset-Backed Certificates, Series 2006-1 (“Certificates”)
(“Counterparty”). This Confirmation constitutes a “Confirmation” as referred to
in the ISDA Form Master Agreement (as defined below), as well as a “Schedule” as
referred to in the ISDA Form Master Agreement. In this Confirmation “Party A”
means HSBC and “Party B” means Fremont Home Loan 2006-1.
1. This
Agreement is subject to and incorporates the 2000 ISDA Definitions (the
“Definitions”), as published by the International Swaps and Derivatives
Association, Inc. (“ISDA”). You and we have agreed to enter into this Agreement
in lieu of negotiating a Schedule to the 1992 ISDA Master Agreement
(Multicurrency—Cross Border) form (the
“ISDA Form Master Agreement”) but, rather, an ISDA Form Master Agreement shall
be deemed to have been executed by you and us on the date we entered into
the
Transaction. In the event of any inconsistency between the provisions of
this
Agreement and the Definitions or the ISDA Form Master Agreement, this Agreement
shall prevail for purposes of the Transaction. Terms used and not otherwise
defined herein, in the ISDA Form Master Agreement
or the Definitions shall have the meanings assigned to them in the Pooling
and
Servicing Agreement, dated as of April 1, 2006, among Financial Asset Securities
Corp. as depositor, Xxxxx Fargo Bank, N.A., as servicer and Deutsche Bank
National Trust Company, as trustee (the “Pooling and Servicing Agreement”). Each
reference to a “Section” or to a “Section” “of this Agreement” will be construed
as a reference to a Section of the 1992 ISDA Form Master Agreement.
Each
of
Party A and Party B represents to the other that it has entered into this
Transaction in reliance upon such tax, accounting, regulatory, legal, and
financial advice as it deems necessary and not upon any view expressed
by the
other and, in the case of Party B, it has entered into this transaction
pursuant
to the direction received by it pursuant to the Pooling and Servicing
Agreement.
|
2.
|
The
terms of the particular Transaction to which this Confirmation
relates are
as follows:
|
Notional
Amount:
The
amount as set forth in Exhibit I, which is attached hereto and incorporated
by
reference into this Confirmation
Trade
Date:
April
7,
2006
Effective
Date:
Xxxxx
00,
0000
Xxxxxxxxxxx
Date: June
25,
2010, subject to adjustment in accordance with the Following Business Day
Convention.
Fixed
Amounts:
Fixed
Rate
Payer:
Party
B
Fixed
Rate Payer
Payment
Dates:
The
25th
calendar
day of each month, commencing on April 25, 2007 and ending on the Termination
Date, inclusive, subject to adjustment in accordance with the Following
Business
Day Convention
Fixed
Rate:
5.100000
%
Fixed
Amount:
To
be
determined in accordance with the Following formula: 250 * Fixed Rate *
Notional
Amount * Fixed Rate Day Count Fraction.
Fixed
Rate Day
Count
Fraction:
30/360
Floating
Amounts:
Floating
Rate
Payer:
Party
A
Floating
Rate Payer
Payment
Dates:
The
25th
calendar day of each month, commencing on April 25, 2007 and ending on
the
Termination Date, inclusive, subject to adjustment in accordance with the
Following Business Day Convention
Floating
Rate
Option:
USD-LIBOR-BBA
Floating
Amount:
To
be
determined in accordance with the following formula: 250 * Floating Rate
Option
* Notional Amount * Floating Rate Day Count Fraction
Floating
Rate for Initial
Calculation
Period:
To
be
determined
Designated
Maturity:
One
month
Spread:
None
Floating
Rate
Day
Count
Fraction:
Actual/360
Reset
Dates:
The
first
day of each Calculation Period
Compounding:
Inapplicable
Business
Days:
New
York
Calculation
Agent:
Party
A
Additional
Payments:
Party
B
agrees to pay USD 1,295,000.00 to Party A for value April 13, 2006, subject
to
adjustment in accordance with the Following Business Day Convention
3. Provisions
Deemed Incorporated in a Schedule to the ISDA Form Master Agreement:
1) The
parties agree that subparagraph (ii) of Section 2(c) of the ISDA Form Master
Agreement will apply to any Transaction.
2) Termination
Provisions.
For
purposes of the ISDA Form Master Agreement:
(a) “Specified
Entity”
is not
applicable to Party A or Party B for any purpose.
(b) “Specified
Transaction”
is not
applicable to Party A or Party B for any purpose, and, accordingly, Section
5(a)(v) shall not apply to Party A or Party B.
(c) The
“Cross
Default”
provisions of Section 5(a)(vi) shall not apply to Party A or Party
B.
(d) The
“Credit
Event Upon Merger”
provisions of Section 5(b)(iv) will not apply to Party A or Party
B.
(e) With
respect to Party B, the “Bankruptcy”
provision of Section 5(a)(vii)(2) of the ISDA Form Master Agreement shall
not
apply.
(f) The
“Automatic
Early Termination”
provision of Section 6(a) will not apply to Party A or to Party B.
(g) Payments
on Early Termination.
For the
purpose of Section 6(e) of the ISDA Form Master Agreement:
(i) Market
Quotation will apply.
(ii) The
Second Method will apply.
(h) “Termination
Currency” means United States Dollars.
(i) Events
of Default.
The
provisions of Sections 5(a)(ii), 5(a)(iii) and 5(a)(iv) shall not apply
to Party
B. The provisions of Sections 5(a)(ii) and 5(a)(iv) shall not apply to
Party
A.
(j) Tax
Event.
The
provisions of Section 2(d)(i)(4) and 2(d)(ii) of the printed ISDA Form
Master
Agreement shall not apply to Party B and Party B shall not be required
to pay
any additional amounts referred to therein.
3) Tax
Representations.
(a) Payer
Representations.
For the
purpose of Section 3(e) of the ISDA Form Master Agreement, Party A and
Party B
will make the following representations:
It
is not
required by any applicable law, as modified by the practice of any relevant
governmental revenue authority, of any Relevant Jurisdiction to make any
deduction or withholding for or on account of any Tax from any payment
(other
than interest under Section 2(e), 6(d)(ii) or 6(e) of the ISDA Form Master
Agreement) to be made by it to the other party under this Agreement. In
making
this representation, it may rely on:
(i) the
accuracy of any representations made by the other party pursuant to Section
3(f)
of the ISDA Form Master Agreement;
(ii) the
satisfaction of the agreement contained in Section 4(a)(iii) of the ISDA
Form
Master Agreement and the accuracy and effectiveness of any document provided
by
the other party pursuant to Section 4(a)(iii) of the ISDA Form Master Agreement;
and
(iii) the
satisfaction of the agreement of the other party contained in Section 4(d)
of
the ISDA Form Master Agreement, provided that it shall not be a breach
of this
representation where reliance is placed on clause (ii) and the other party
does
not deliver a form or document under Section 4(a)(iii) by reason of material
prejudice to its legal or commercial position.
(b) Payee
Representations.
For the
purpose of Section 3(f) of the ISDA Form Master Agreement, each of Party
A and
Party B make the following representations.
The
following representation will apply to Party A:
Party
A
is a national banking association organized under the federal laws of the
United
States and its U.S. taxpayer identification number is 00-0000000.
The
following representation will apply to Party B:
The
beneficial owner of the payments made to it under the Agreement is
either
(i) a “U.S. person” (as that term is used in Section 1.1441-4(a)(3)(ii) of the
United States Treasury Regulations) for U.S. federal income tax purposes
or (ii)
a “non-U.S. branch of a foreign person” (as that term is used in Section
1.1441-4(a)(3)(ii) of the United States Treasury Regulations) for U.S.
federal
income tax purposes and a “foreign person” (as that term is used in Section
1.6041-4(a)(4) of the United States Treasury Regulations) for U.S. federal
income tax purposes.
4) [Reserved]
5) Documents
to be Delivered.
For the
purpose of Section 4(a)(i) and 4(a)(iii):
(1)
Tax
forms, documents, or certificates to be delivered are:
|
Party
required to deliver document
|
Form/Document/
Certificate
|
Date
by which to Be delivered
|
|
Party
A and Party
B
|
Any
document required or reasonably requested to allow the other
party to make
payments under this Agreement without any deduction or withholding
for or
on the account of any Tax or with such deduction or withholding
at a
reduced rate.
|
Promptly
after the earlier of (i) reasonable demand by either party or
(ii)
learning that such form or document is
required.
|
(2)
Other
documents to be delivered are:
|
Party
required to deliver document
|
Form/Document/
Certificate
|
Date
by which to Be delivered
|
Covered
by Section 3(d) Representation
|
|
Party
A and Party B
|
Any
documents to evidence the authority of the delivering party for
it to
execute and deliver this Confirmation.
|
Upon
the execution and delivery of this Agreement and such
Confirmation.
|
Yes
|
|
Party
A and Party B
|
A
certificate of an authorized officer of the party, as to the
incumbency
and authority of the respective officers of the party signing
this
Confirmation.
|
Upon
the execution and delivery of this Confirmation.
|
Yes
|
|
Party
A
|
Legal
opinion(s) with respect to such party and its Credit Support
Provider, if
any, for it, reasonably satisfactory in form and substance to
the other
party relating to the enforceability of the party’s obligations under this
Agreement.
|
Upon
the execution and delivery of this Agreement.
|
No
|
|
Party
A and Party B
|
Indemnification
agreement executed by each of Party A and Financial Asset Securities
Corp.
with respect to information included in any free writing prospectus
and
the prospectus supplement
related to the Class A Certificates and Class M Certificates. |
Concurrently
with the printing of any preliminary prospectus supplement and
the
prospectus supplement related to the Class A and Class M
Certificates.
|
No
|
|
Party
A
|
A
copy of the most recent annual report of such party (only if
available)
and its Credit Support Provider, if any, containing in all cases
audited
consolidated financial statements for each fiscal year certified
by
independent certified public accountants and prepared in accordance
with
generally accepted accounting principles in the United States
or in the
country in which such
party is organized. |
Promptly
after request by the other party.
|
Yes
|
|
Party
B
|
Each
other report or other document required to be delivered by or
to Party B
under the terms of the Pooling and Servicing Agreement, other
than those
required to be delivered directly by the Trustee to Party A
thereunder.
|
Promptly
upon request by Party A, or with respect to any particular type
of report
or other document as to which Party A has previously made request
to
receive all reports or documents of that type, promptly upon
delivery or
receipt of such report or document by Party B.
|
Yes
|
6) Other
Provisions.
(a) Address
for Notices:
For the
purposes of Section 12(a) of this Agreement:
Address
for notices or communications to Party A:
Address: 000
Xxxxx
Xxxxxx, Xxx Xxxx, XX 00000
Attention: Xxxxxxxxx
XxXxxxxx
Facsimile:
000-000-0000
Telephone:
000-000-0000
Please
direct all settlement inquiries to:
HSBC
Bank
USA, National Association
Derivative
Settlements
Attention:
Xxxxxxx
Xxxxxxx
Telephone:
(000)
000-0000
Fax: (000)
000-0000
Address
for notices or communications to Party B:
Address:
Fremont
Home Loan Trust 0000-0
x/x
Xxxxxxxx Xxxx National Trust Company
0000
X.
Xx. Xxxxxx Xxxxx
Xxxxx
Xxx, XX 00000
Attn:
Trust Admin, Fremont Home Loan Trust 2006-1
Facsimile
No.: 000-000-0000
Telephone
No: 000-000-0000
(For
all
purposes)
(b) Process
Agent.
For the
purpose of Section 13(c):
Party
A
appoints as its Process Agent: Not Applicable
Party
B
appoints as it Process Agent: Not Applicable
(c) Offices.
The
provisions of Section 10(a) will not apply to this Agreement; for purposes
of
this Transaction, it will be deemed that neither Party A nor Party B has
any
Offices other than as set forth in the Notices Section and Party A agrees
that,
for purposes of Section 6(b) of the ISDA Form Master Agreement, it shall
be
deemed not to have any Office other than one in the United States.
(d) Multibranch
Party.
For the
purpose of Section 10(c) of the ISDA Form Master Agreement:
Party
A
is not a Multibranch Party.
Party
B
is not a Multibranch Party.
(e) Calculation
Agent.
The
Calculation Agent is Party A; provided
however,
if an
Event of Default has occurred with respect to Party A, then Party B or
a
Reference Market-maker designated by Party B shall be Calculation
Agent.
(f) Credit
Support Document.
Initially with respect to Party A, not applicable; however,
if
required pursuant to Paragraph 3(6)(q)(iv) hereof, a guaranty satisfactory
to
Party B and the Rating Agencies. With respect to Party B, not applicable.
(g) Credit
Support Provider.
Party
A:
Not Applicable
Party
B:
Not Applicable
(h) Governing
Law.
The
parties to this ISDA Agreement hereby agree that the law of the State of
New
York shall govern their rights and duties in whole, without regard to the
conflict of law provisions thereof other than New York General Obligations
Law
Sections 5-1401 and 5-1402.
(i) Non-Petition.
Party A
hereby irrevocably and unconditionally agrees that it will not institute
against, or join any other person in instituting against or cause any other
person to institute against the Fremont Home Loan Trust 2006-1, any bankruptcy,
reorganization, arrangement, insolvency, or similar proceeding under the
laws of
the United States, or any other jurisdiction for the non-payment of any
amount
due hereunder or any other reason until the payment in full of the Certificates
and the expiration of a period of one year plus ten days (or, if longer,
the
applicable preference period) following such payment.
(j) Non-Recourse
Provisions.
Notwithstanding
any provision herein or in the ISDA Form Master Agreement to the contrary,
the
obligations of Party B hereunder are limited recourse obligations of the
Party
B, payable solely
from the Swap Account (as defined in the Pooling and Servicing Agreement)
and
the proceeds thereof to satisfy Party B’s obligations hereunder. In the event
that the Swap Account and proceeds thereof should be insufficient to satisfy
all
claims outstanding and following the realization of the Swap Account and
the
distribution of the proceeds thereof in accordance with the Indenture,
any
claims against or obligations of Party B under the ISDA Form Master Agreement
or
any other confirmation thereunder, still outstanding shall be extinguished
and
thereafter not revive.
(k) Severability.
If any
term, provision, covenant, or condition of this Agreement, or the application
thereof to any party or circumstance, shall be held to be invalid or
unenforceable (in whole or in part) for any reason, the remaining terms,
provisions, covenants, and conditions hereof shall continue in full force
and
effect and shall remain applicable to all other parties and circumstances
as if
this Agreement had been executed with the invalid or unenforceable portion
eliminated, so long as this Agreement as so modified continues to express,
without material change, the original intentions of the parties as to the
subject matter of this Agreement and the deletion of such portion of this
Agreement will not substantially impair the respective benefits or expectations
of the parties.
The
parties shall endeavor to engage in good faith negotiations to replace
any
invalid or unenforceable term, provision, covenant or condition with a
valid or
enforceable term, provision, covenant or condition, the economic effect
of which
comes as close as possible to that of the invalid or unenforceable term,
provision, covenant or condition.
(l) Consent
to Recording.
Each
party hereto consents to the monitoring or recording, at any time and from
time
to time, by the other party of any and all communications between officers
or
employees of the parties, waives any further notice of such monitoring
or
recording, and agrees to notify its officers and employees of such monitoring
or
recording.
(m) Waiver
of Jury Trial.
Each
party to this Agreement respectively waives any right it may have to a
trial by
jury in respect of any Proceedings relating to this Agreement, any Credit
Support Document or any of the transactions contemplated hereby.
(n) Set-Off.
Notwithstanding
any provision of this Agreement or any other existing or future agreement,
each
party irrevocably waives any and all rights it may have to set off, net,
recoup
or otherwise withhold or suspend or condition payment or performance of
any
obligation between it and the other party hereunder against any obligation
between it and the other party under any other agreements. The provisions
for
Set-off set forth in Section 6(e) of the ISDA Form Master Agreement shall
not apply for purposes of this Transaction.
(o) “Affiliate”
will
have the meaning specified in Section 14 of the ISDA Form Master Agreement,
provided that Party A and Party B shall be deemed to not have any Affiliates
for
purposes of this Agreement, including for purposes of Section
6(b)(ii).
(p) Section
3
of the ISDA Form Master Agreement is hereby amended by adding at the end
thereof
the following subsection (g):
“(g)
Relationship
Between Parties.
Each
party represents to the other party on each date when it enters into a
Transaction that:--
(1) Nonreliance.
(i) It
is not relying on any statement or representation of the other party regarding
the Transaction (whether written or oral), other than the representations
expressly made in this Agreement or the Confirmation in respect of that
Transaction and (ii) it has consulted with its own legal, regulatory, tax,
business, investment, financial and accounting advisors to the extent it
has
deemed necessary, and it has made its own investment, hedging and trading
decisions based upon its own judgment and upon any advice from such advisors
as
it has deemed necessary and not upon any view expressed by the other
party.
(2) Evaluation
and Understanding.
(i) It
has
the capacity to evaluate (internally or through independent professional
advice)
the Transaction and has made its own decision to enter into the Transaction
and
in the case of Party B, it has been directed by the Pooling and Servicing
Agreement to enter into this Transaction; and
(ii) It
understands the terms, conditions and risks of the Transaction and is willing
and able to accept those terms and conditions and to assume those risks,
financially and otherwise.
(3) Purpose.
It is
entering into the Transaction for the purposes of managing its borrowings
or
investments, hedging its underlying assets or liabilities or in connection
with
a line of business.
(4) Status
of Parties.
The
other party is not acting as agent, fiduciary or advisor for it in respect
of
the Transaction,
(5) Eligible
Contract Participant.
It is
an “eligible swap participant” as such term is defined in Section 35.1(b)(2) of
the regulations (17 C.F.R 35) promulgated under, and it constitutes an
“eligible
contract participant” as such term is defined in Section 1(a)12 of the Commodity
Exchange Act, as amended.”
(q)
The
ISDA Form Master Agreement is hereby amended as follows
(i) The
word
“third” shall be replaced by the word “second” in the third line of
Section 5(a)(i) of the ISDA Form Master Agreement.
(ii) Transfer,
Amendment and Assignment.
No
transfer, amendment, waiver, supplement, assignment or other modification
of
this Transaction shall be permitted by either party (other than a change
of
Counterparty in connection with a change of Trustee in accordance with
the
Pooling and Servicing Agreement) unless each of Standard and Poor’s, a Division
of the McGraw Hill Companies, Inc. (“S&P”) “Moody’s” means Xxxxx’x Investors
Service, Inc. has been provided notice of the same and confirms in writing
(including by facsimile transmission) that it will not downgrade, qualify,
withdraw or otherwise modify its then-current rating of the
Certificates.
(iii) Additional
Termination Events. Additional
Termination Events will apply:
(a)
If a
Rating Agency Downgrade has occurred and Party A has not complied with
Paragraph
3(6)(q)(iv) below, then an Additional Termination Event shall have occurred
with
respect to Party A and Party A shall be the sole Affected Party with respect
to
such an Additional Termination Event.
(b)
If,
at any time, the Terminator purchases the Mortgage Loans pursuant to Section
10.01 of the Pooling and Servicing Agreement, then an Additional Termination
Event shall have occurred with respect to Party B with
Party B as the sole Affected Party with respect to such Additional Termination
Event. Notwithstanding
the provisions of section 6(b)(iv) of the Form Master Agreement, either
Party A
or Party B may designate an Early Termination Date in respect of this Additional
Termination Event.
(c)
If,
upon
the occurrence of a Swap Disclosure Event (as defined in Paragraph 3(6)(u)
below) Party A has not, within five (5) Business Days after such Swap Disclosure
Event complied with any of the provisions set forth in Paragraph 3(6)(u)(iii)
below, then an Additional Termination Event shall have occurred with respect
to
Party A and Party A shall be the sole Affected Party with respect to such
Additional Termination Event.
(iv) Rating
Agency Downgrade.
In
the
event that Party A’s short-term unsecured and unsubordinated debt rating is
reduced below "A-1" by S&P (or if its short-term rating is not available by
S&P, in the event that its long-term unsecured and unsubordinated debt
rating is withdrawn or reduced below “A+” by S&P), or Party A’s short-term
unsecured and unsubordinated debt rating is reduced to or below “P1 on watch for
downgrade” by Moody’s or Party A’s long-term unsecured and unsubordinated debt
rating is reduced to or below “A1 on watch for downgrade” by Moody’s (or if its
short-term rating by Xxxxx’x is not available, in the event that its long-term
unsecured and unsubordinated debt rating is reduced to or below “Aa3 on watch
for downgrade” by Moody’s) such rating thresholds, “Approved Rating
Thresholds”), then within 30 days after such rating withdrawal or downgrade
(unless, within 30 days after such withdrawal or downgrade S & P has
reconfirmed its rating for the Certificates which was in effect immediately
prior to such withdrawal or downgrade), Party A shall, subject to the Rating
Agency Condition, at its own expense:
(a) assign
this Transaction to another counterparty, which counterparty shall have
the
Approved Rating Thresholds and shall have been approved by Party B on terms
substantially similar to the terms of this Confirmation;
(b) obtain
a
guaranty of, or a contingent agreement of another person with the Approved
Rating Thresholds, to honor Party A’s obligations under this Confirmation;
provided that such other person has been approved by Party B;
(c) post
collateral which will be sufficient to S & P and Xxxxx’x to maintain or
restore the ratings of the Certificates existing immediately prior to such
withdrawal or downgrade of Party A’s ratings; or
(d) establish
any other arrangement satisfactory to S & P and Xxxxx’x, in each case,
sufficient to maintain or restore the ratings of the Certificates existing
immediately prior to such withdrawal or downgrade of Party A’s
ratings.
Notwithstanding
the previous paragraph, in the event that Party A’s short-term unsecured and
unsubordinated debt rating is withdrawn or reduced below “A-3” by S&P or, if
there is no short-term rating, its long-term unsecured and unsubordinated
debt
rating is withdrawn or reduced below “BBB-” by S&P, then within 10 days of
such rating withdrawal or downgrade (unless, within 10 days after such
withdrawal or downgrade S&P has reconfirmed the rating of the Notes which
was in effect immediately prior to such withdrawal or downgrade), Party A
shall, subject to the Rating Agency Condition, at its own expense, assign
this
Transaction to another counterparty with the Approved Rating Thresholds
on terms
substantially similar to this Confirmation and obtain a confirmation from
S&P that such action is sufficient to maintain or restore the immediately
prior ratings of the Certificates.
For
purposes of these provisions, “Rating Agency Condition” means, with respect to
any particular proposed act or omission to act hereunder in connection
with a
withdrawal or downgrade of any of Party A’s ratings as described above that
Party A must consult with and receive from S
&
P
and Xxxxx’x a written confirmation, prior to taking any such action, that such
withdrawal or downgrade of any of Party A’s ratings, after giving effect to any
such proposed action or omission, would not cause a downgrade or withdrawal
of
the ratings of the Certificates existing immediately prior to such withdrawal
or
downgrade of Party A’s ratings.
(r)
Limitation
of Liability.
It is
expressly understood and agreed by the parties hereto that (a) this Agreement
is
executed and delivered by Deutsche Bank National Trust Company (“Deutsche
Bank”), not individually or personally but solely as Supplemental Interest Trust
Trustee on behalf of the Supplemental Interest Trust, in the exercise of
the
powers and authority conferred and vested in it, (b) each of the
representations, undertakings and agreements herein made on the part of
Deutsche
Bank is made and intended not as personal representations, undertakings
and
agreements by Deutsche Bank but is made and intended for the purpose of
binding
only the Supplemental Interest Trust, (c) nothing herein contained shall
be
construed as creating any liability on Deutsche Bank, individually or
personally, to perform any covenant either expressed or implied contained
herein, all such liability, if any, being expressly waived by the parties
hereto
and by any Person claiming by, through or under the parties hereto, and
(d)
under no circumstances shall Deutsche Bank be personally liable for the
payment
of any indebtedness or expenses of the Supplemental Interest Trust or be
liable
for the breach or failure of any obligation, representation, warranty or
covenant made or undertaken by the Supplemental Interest Trust under this
Agreement or any other related documents.
(s)
Pooling and Servicing Agreement.
Party
A
hereby agrees that, notwithstanding any provision of this agreement to
the
contrary, Party B’s obligations to pay any amounts owing under this Agreement
shall be subject to Sections 4.01 of the Pooling and Servicing Agreement
and
Party A’s right to receive payment of such amounts shall be subject to Sections
4.01 of the Pooling and Servicing Agreement.
(t)
Payment
Instructions.
Party A
hereby agrees that, unless notified in writing by Party B of other payment
instructions, any and all amounts payable by Party A to Party B under this
Agreement shall be paid to Party B at the account specified in Section
5.
(u)
Compliance
with Regulation AB.
(i) Party
A
agrees and acknowledges that Financial Asset Securities Corp. (“the Depositor”)
is required under Regulation AB as defined under the Pooling and Servicing
Agreement, to disclose certain financial information regarding Party A
or its
group of affiliated entities, if applicable, depending on the aggregate
“significance percentage” of this Agreement and any other derivative contracts
between Party A or its group of affiliated entities, if applicable, and
Counterparty, as calculated from time to time in accordance with Item 1115
of
Regulation AB.
(ii) It
shall
be a swap disclosure event (“Swap Disclosure Event”) if, on any Business Day
after the date hereof, the Depositor requests from Party A the applicable
financial information described in Item 1115 of Regulation AB (such request
to
be based on a reasonable determination by the Depositor, in good faith,
that
such information is required under Regulation AB) (the “Swap
Financial Disclosure”).
(iii) Upon
the
occurrence of a Swap Disclosure Event, Party A, at its own expense, shall
(1)(a)
either (i) provide to the Depositor the current Swap Financial Disclosure
in an
XXXXX-compatible format (for example, such information may be provided
in
Microsoft Word® or Microsoft Excel® format but not in .pdf format) or (ii)
provide written consent to the Depositor to incorporation by reference
of such
current Swap Financial Disclosure that are filed with the Securities and
Exchange Commission in the reports of the Trust filed pursuant to the Exchange
Act, (b) if applicable, cause its outside accounting firm to provide its
consent
to filing or incorporation by reference of such accounting firm’s report
relating to their audits of such current Swap Financial Disclosure in the
Exchange Act Reports of the Depositor, and (c) provide to the Depositor
any
updated Swap Financial Disclosure with respect to Party A or any entity
that
consolidates Party A within five days of the release of any such updated
Swap
Financial Disclosure; or (2) secure another entity to replace Party A as
party
to this Agreement on terms substantially similar to this Agreement and
subject
to prior notification to the Swap Rating Agencies, which entity (or a guarantor
therefor) meets or exceeds the Approved Rating Thresholds and which satisfies
the Rating Agency Condition and which entity is able to comply with the
requirements of Item 1115 of Regulation.
(iv) Party
A
agrees that, in the event that Party A provides Swap Financial Disclosure
to the
Depositor in accordance with clause (iii)(a) of Paragraph 3(6)(u) or causes
its
affiliate to provide Swap Financial Disclosure to the Depositor in accordance
with clause (iii)(c) of Paragraph 3(6)(u), it will indemnify and hold harmless
the Depositor, its respective directors or officers and any person controlling
the Depositor, from and against any and all losses, claims, damages and
liabilities caused by any untrue statement or alleged untrue statement
of a
material fact contained in such Swap Financial Disclosure or caused by
any
omission or alleged omission to state in such Swap Financial Disclosure
a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(v) If
the
Depositor reasonably requests, Party A shall provide such other information
as
may be necessary for the Depositor to comply with Item 1115 of Regulation
AB.
(vi) the
Depositor shall be an express third party beneficiary of this Agreement
as if a
party hereto to the extent of the Depositor’ rights explicitly specified in this
Paragraph 3(6)(u).
4. Account
Details:
Payments
to Party
A:
HSBC
Bank
USA, National Association
ABA
#
000-000-000
For
credit to Department 299
A/C:
000-00000-0
HSBC
Derivative Products Group
Payments
to Party
B:
Deutsche
Bank Trust Company Americas
ABA 000-000-000
A/C 01419663
A/C Name: NYLTD Funds Control - Stars West
Ref: Fremont Home Loan Trust 2006-1
5. Office:
|
Party
A is acting through its New York Office for the purposes of this
Transaction.
|
|
6.
|
Please
confirm that the forgoing correctly sets forth the terms of our agreement
by
having an authorized officer sign this Confirmation and return it via facsimile
to:
HSBC
Bank
USA, National Association
Swap
Documentation
Attention:
Xxxxxxxxx
XxXxxxxx
Telephone:
(000)
000-0000
Fax: (000)
000-0000
Please
direct all settlement inquiries to:
HSBC
Bank
USA, National Association
Derivative
Settlements
Attention:
Xxxxxxx
Xxxxxxx
Telephone:
(000)
000-0000
Fax: (000)
000-0000
This
message will be the only form of Confirmation dispatched by us. Please
execute
and return it to us by facsimile immediately. If you wish to exchange hard
copy
forms of this Confirmation, please contact us.
Yours
sincerely,
HSBC
BANK
USA, NATIONAL ASSOCIATION
By:
_________________________
Authorized
Signature
Confirmed
as of the date first written above:
Deutsche
Bank National Trust Company,
not
individually, but solely as
Supplemental
Interest Trust Trustee
on
behalf
of the Supplemental Interest Trust
(each
as
defined herein) with respect to
Fremont
Home Loan Trust 2006-1,
Asset-Backed
Certificates, Series 2006-1
By:
________________________
Name:
Title:
Attachment
Exhibit
I
|
For
the Calculation Periods
|
Notional
Amount
|
|
|
From
and including:*
|
To
but excluding:*
|
in
USD:
|
|
The
Effective Date
|
April
25, 2007
|
3,240,835.01
|
|
April
25, 2007
|
May
25, 2007
|
3,134,607.31
|
|
May
25, 2007
|
June
25, 2007
|
3,025,000.46
|
|
June
25, 2007
|
July
25, 2007
|
2,912,413.07
|
|
July
25, 2007
|
August
25, 2007
|
2,797,265.74
|
|
August
25, 2007
|
September
25, 2007
|
2,679,998.04
|
|
September
25, 2007
|
October
25, 2007
|
2,561,065.34
|
|
October
25, 2007
|
November
25, 2007
|
2,440,935.29
|
|
November
25, 2007
|
December
25, 2007
|
2,320,084.25
|
|
December
25, 2007
|
January
25, 2008
|
2,198,993.41
|
|
January
25, 2008
|
February
25, 2008
|
2,026,227.85
|
|
February
25, 2008
|
March
25, 2008
|
258,623.69
|
|
March
25, 2008
|
April
25, 2008
|
248,085.26
|
|
April
25, 2008
|
May
25, 2008
|
238,660.92
|
|
May
25, 2008
|
June
25, 2008
|
229,608.18
|
|
June
25, 2008
|
July
25, 2008
|
220,911.57
|
|
July
25, 2008
|
August
25, 2008
|
212,556.31
|
|
August
25, 2008
|
September
25, 2008
|
204,528.29
|
|
September
25, 2008
|
October
25, 2008
|
196,814.01
|
|
October
25, 2008
|
November
25, 2008
|
189,400.58
|
|
November
25, 2008
|
December
25, 2008
|
182,275.64
|
|
December
25, 2008
|
January
25, 2009
|
175,138.98
|
|
January
25, 2009
|
February
25, 2009
|
165,281.99
|
|
February
25, 2009
|
March
25, 2009
|
151,493.00
|
|
March
25, 2009
|
April
25, 2009
|
146,029.65
|
|
April
25, 2009
|
May
25, 2009
|
140,811.83
|
|
May
25, 2009
|
June
25, 2009
|
135,780.69
|
|
June
25, 2009
|
July
25, 2009
|
130,929.51
|
|
July
25, 2009
|
August
25, 2009
|
126,251.81
|
|
August
25, 2009
|
September
25, 2009
|
121,741.35
|
|
September
25, 2009
|
October
25, 2009
|
117,392.10
|
|
October
25, 2009
|
November
25, 2009
|
113,198.28
|
|
November
25, 2009
|
December
25, 2009
|
109,154.29
|
|
December
25, 2009
|
January
25, 2010
|
105,254.76
|
|
January
25, 2010
|
February
25, 2010
|
101,494.50
|
|
February
25, 2010
|
March
25, 2010
|
97,868.51
|
|
March
25, 2010
|
April
25, 2010
|
94,371.98
|
|
April
25, 2010
|
May
25, 2010
|
91,000.25
|
|
May
25, 2010
|
The
Termination Date
|
87,748.87
|
*
All
dates listed above (with the exception of the Effective Date), are subject
to
adjustment in accordance with the Following Business Day Convention
EXHIBIT
R
[Reserved]
EXHIBIT
S
SERVICING
CRITERIA TO BE ADDRESSED
IN
ASSESSMENT OF COMPLIANCE
Definitions
Primary
Servicer - transaction party having borrower contact
Master
Servicer - aggregator of pool assets
Securities
Administrator - waterfall calculator (may be the Trustee, or may be the Master
Servicer)
Back-up
Servicer - named in the transaction (in the event a Back up Servicer becomes
the
Primary Servicer, follow Primary Servicer obligations)
Custodian
- safe keeper of pool assets
Paying
Agent - distributor of funds to ultimate investor
Trustee
-
fiduciary of the transaction
Note:
The
definitions above describe the essential function that the party performs,
rather than the party’s title. So, for example, in a particular transaction, the
trustee may perform the “paying agent” and “securities administrator” functions,
while in another transaction, the securities administrator may perform these
functions.
Where
there are multiple checks for criteria the attesting party will identify in
their management assertion that they are attesting only to the portion of the
distribution chain they are responsible for in the related transaction
agreements.
Key:
X
- obligation
[X]
- under consideration for obligation
|
Reg
AB Reference
|
Servicing
Criteria
|
Primary
Servicer
|
Master
Servicer
|
Trustee
|
|
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.
|
X
|
X
|
X
|
|
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.
|
To
the extent applicable
|
X
|
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the Pool Assets are maintained.
|
|||
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
|
X
|
X
|
|
|
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.
|
X
|
X
|
X
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
X
|
X
|
|
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.
|
X
|
X
|
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of over collateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
X
|
[X]
|
X
|
|
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.
|
X
|
X
|
X
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized access.
|
If
applicable
|
||
|
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.
|
X
|
X
|
X
|
|
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.
|
X
|
X
|
X
|
|
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.
|
X
|
X
|
X
|
|
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.
|
X
|
X
|
X
|
|
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.
|
X
|
X
|
X
|
|
Pool
Asset Administration
|
||||
|
1122(d)(4)(i)
|
Collateral
or security on pool assets is maintained as required by the transaction
agreements or related pool asset documents.
|
X
|
X
|
|
|
1122(d)(4)(ii)
|
Pool
assets and related documents are safeguarded as required by the
transaction agreements
|
X
|
X
|
|
|
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.
|
X
|
X
|
X
|
|
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.
|
X
|
||
|
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.
|
X
|
||
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's pool assets (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.
|
X
|
X
|
|
|
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.
|
X
|
X
|
|
|
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).
|
X
|
||
|
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.
|
X
|
X
|
|
|
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 assets, or such other
number of
days specified in the transaction agreements.
|
X
|
||
|
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.
|
X
|
||
|
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.
|
X
|
||
|
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.
|
X
|
||
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
X
|
X
|
|
|
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.
|
X
|
X
|
EXHIBIT
T
FORM
10-D, FORM 8-K AND FORM 10-K
REPORTING
RESPONSIBILITY
As
to
each item described below, the entity indicated as the Responsible Party shall
be primarily responsible for reporting the information to the Trustee pursuant
to Section 4.07(a)(iv). If the Trustee is indicated below as to any item, then
the Trustee is primarily responsible for obtaining that information.
Under
Item 1 of Form 10-D: a) items marked “4.02 statement” are required to be
included in the periodic Distribution Date statement under Section 4.02,
provided by the Trustee based on information received from the Servicer; and
b)
items marked “Form 10-D report” are required to be in the Form 10-D report but
not the 4.02 statement, provided by the party indicated. Information under
all
other Items of Form 10-D is to be included in the Form 10-D report.
|
Form
|
Item
|
Description
|
Responsible
Party
|
|
10-D
|
Must
be filed within 15 days of the Distribution Date.
|
||
|
1
|
Distribution
and Pool Performance Information
|
||
|
Item
1121(a) - Distribution and Pool Performance
Information
|
|||
|
(1)
Any applicable record dates, accrual dates, determination dates for
calculating distributions and actual distribution dates for the
distribution period.
|
4.02
statement
|
||
|
(2)
Cash flows received and the sources thereof for distributions, fees
and
expenses.
|
4.02
statement
|
||
|
(3)
Calculated amounts and distribution of the flow of funds for the
period
itemized by type and priority of payment, including:
|
4.02
statement
|
||
|
(i)
Fees or expenses accrued and paid, with an identification of the
general
purpose of such fees and the party receiving such fees or
expenses.
|
4.02
statement
|
||
|
(ii)
Payments accrued or paid with respect to enhancement or other support
identified in Item 1114 of Regulation AB (such as insurance premiums
or
other enhancement maintenance fees), with an identification of the
general
purpose of such payments and the party receiving such
payments.
|
4.02
statement
|
||
|
(iii)
Principal, interest and other distributions accrued and paid on the
asset-backed securities by type and by class or series and any principal
or interest shortfalls or carryovers.
|
4.02
statement
|
||
|
(iv)
The amount of excess cash flow or excess spread and the disposition
of
excess cash flow.
|
4.02
statement
|
||
|
(4)
Beginning and ending principal balances of the asset-backed
securities.
|
4.02
statement
|
||
|
(5)
Interest rates applicable to the pool assets and the asset-backed
securities, as applicable. Consider providing interest rate information
for pool assets in appropriate distributional groups or incremental
ranges.
|
4.02
statement
|
||
|
(6)
Beginning and ending balances of transaction accounts, such as reserve
accounts, and material account activity during the period.
|
4.02
statement
|
||
|
(7)
Any amounts drawn on any credit enhancement or other support identified
in
Item 1114 of Regulation AB, as applicable, and the amount of coverage
remaining under any such enhancement, if known and
applicable.
|
4.02
statement
|
||
|
(8)
Number and amount of pool assets at the beginning and ending of each
period, and updated pool composition information, such as weighted
average
coupon, weighted average life, weighted average remaining term, pool
factors and prepayment amounts.
|
4.02
statement
Updated
pool composition information fields to be as specified by Depositor
from
time to time
|
||
|
(9)
Delinquency and loss information for the period.
In
addition, describe any material changes to the information specified
in
Item 1100(b)(5) of Regulation AB regarding the pool
assets.
|
4.02
statement.
Form
10-D report: Depositor
|
||
|
(10)
Information on the amount, terms and general purpose of any advances
made
or reimbursed during the period, including the general use of funds
advanced and the general source of funds for
reimbursements.
|
4.02
statement
|
||
|
(11)
Any material modifications, extensions or waivers to pool asset terms,
fees, penalties or payments during the distribution period or that
have
cumulatively become material over time.
|
Form
10-D report; Servicer
|
||
|
(12)
Material breaches of pool asset representations or warranties or
transaction covenants.
|
Form
10-D report: Servicer
|
||
|
(13)
Information on ratio, coverage or other tests used for determining
any
early amortization, liquidation or other performance trigger and
whether
the trigger was met.
|
4.02
statement
|
||
|
(14)
Information regarding any new issuance of asset-backed securities
backed
by the same asset pool,
[information
regarding] any pool asset changes (other than in connection with
a pool
asset converting into cash in accordance with its terms), such as
additions or removals in connection with a prefunding or revolving
period
and pool asset substitutions and repurchases (and purchase rates,
if
applicable), and cash flows available for future purchases, such
as the
balances of any prefunding or revolving accounts, if
applicable.
Disclose
any material changes in the solicitation, credit-granting, underwriting,
origination, acquisition or pool selection criteria or procedures,
as
applicable, used to originate, acquire or select the new pool
assets.
|
Form
10-D report: Depositor
Form
10-D report: Depositor
Form
10-D report: Depositor
|
||
|
Item
1121(b) - Pre-Funding or Revolving Period Information
Updated
pool information as required under Item 1121(b).
|
Depositor
|
||
|
2
|
Legal
Proceedings
|
||
|
Item
1117 - Legal proceedings pending against the following entities,
or their
respective property, that is material to Certificateholders, including
proceedings known to be contemplated by governmental
authorities:
Seller
Depositor
Trustee
Issuing
entity
Servicer
Originator
Custodian
|
Seller
Depositor
Trustee
Depositor
Servicer
Originator
Custodian
|
||
|
3
|
Sales
of Securities and Use of Proceeds
|
||
|
Information
from Item 2(a) of Part II of Form 10-Q:
With
respect to any sale of securities by the sponsor, depositor or issuing
entity, that are backed by the same asset pool or are otherwise issued
by
the issuing entity, whether or not registered, provide the sales
and use
of proceeds information in Item 701 of Regulation S-K. Pricing information
can be omitted if securities were not registered.
|
Depositor
|
||
|
4
|
Defaults
Upon Senior Securities
|
||
|
Information
from Item 3 of Part II of Form 10-Q:
Report
the occurrence of any Event of Default (after expiration of any grace
period and provision of any required notice)
|
N/A
|
||
|
5
|
Submission
of Matters to a Vote of Security Holders
|
||
|
Information
from Item 4 of Part II of Form 10-Q
|
Trustee
|
||
|
6
|
Significant
Obligors of Pool Assets
|
||
|
Item
1112(b) - Significant
Obligor Financial Information*
|
N/A
|
||
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Item.
|
|||
|
7
|
Significant
Enhancement Provider Information
|
||
|
Item
1114(b)(2) - Credit Enhancement Provider Financial
Information*
Determining
applicable disclosure threshold
Obtaining
required financial information or effecting incorporation by
reference
|
N/A
N/A
|
||
|
Item
1115(b) - Derivative Counterparty Financial Information*
Determining
current maximum probable exposure
Determining
current significance percentage
Obtaining
required financial information or effecting incorporation by
reference
|
[TBD]
[TBD]
Depositor
|
||
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|||
|
8
|
Other
Information
|
||
|
Disclose
any information required to be reported on Form 8-K during the period
covered by the Form 10-D but not reported
|
The
Responsible Party for the applicable Form 8-K item as indicated
below
|
||
|
9
|
Exhibits
|
||
|
Distribution
report
|
Trustee
|
||
|
Exhibits
required by Item 601 of Regulation S-K, such as material
agreements
|
Depositor
|
||
|
8-K
|
Must
be filed within four business days of an event reportable on Form
8-K.
|
||
|
1.01
|
Entry
into a Material Definitive Agreement
|
||
|
Disclosure
is required regarding entry into or amendment of any definitive agreement
that is material to the securitization, even if depositor is not
a party.
Examples:
servicing agreement, custodial agreement.
Note:
disclosure not required as to definitive agreements that are fully
disclosed in the prospectus
|
Depositor
|
||
|
1.02
|
Termination
of a Material Definitive Agreement
|
||
|
Disclosure
is required regarding termination of any definitive agreement that
is
material to the securitization (other than expiration in accordance
with
its terms), even if depositor is not a party.
Examples:
servicing agreement, custodial agreement.
|
Depositor
|
||
|
1.03
|
Bankruptcy
or Receivership
|
||
|
Disclosure
is required regarding the bankruptcy or receivership, if known to
the
Depositor, Servicer or Trustee, with respect to any of the following:
Sponsor
(Seller), Depositor, Servicer, Trustee, Swap Provider, Cap Provider,
Custodian
|
Depositor/Servicer/Trustee
|
||
|
2.04
|
Triggering
Events that Accelerate or Increase a Direct Financial Obligation
or an
Obligation under an Off-Balance Sheet Arrangement
|
||
|
Includes
an early amortization, performance trigger or other event, including
event
of default, that would materially alter the payment priority/distribution
of cash flows/amortization schedule.
Disclosure
will be made of events other than waterfall triggers which are disclosed
in the 4.02 statement
|
N/A
|
||
|
3.03
|
Material
Modification to Rights of Security Holders
|
||
|
Disclosure
is required of any material modification to documents defining the
rights
of Certificateholders, including the Pooling and Servicing
Agreement
|
Party
requesting material modification
|
||
|
5.03
|
Amendments
to Articles of Incorporation or Bylaws; Change in Fiscal
Year
|
||
|
Disclosure
is required of any amendment “to the governing documents of the issuing
entity”
|
Depositor
|
||
|
5.06
|
Change
in Shell Company Status
|
||
|
[Not
applicable to ABS issuers]
|
Depositor
|
||
|
6.01
|
ABS
Informational and Computational Material
|
||
|
[Not
included in reports to be filed under Section 4.07]
|
Depositor
|
||
|
6.02
|
Change
of Servicer or Trustee
|
||
|
Requires
disclosure of any removal, replacement, substitution or addition
of any
servicer, affiliated servicer, other servicer servicing 10% or more
of
pool assets at time of report, other material servicers, certificate
administrator or trustee. Reg AB disclosure about any new servicer
or
trustee is also required.
|
Trustee
or Servicer
|
||
|
6.03
|
Change
in Credit Enhancement or Other External Support
|
||
|
Covers
termination of any enhancement in manner other than by its terms,
the
addition of an enhancement, or a material change in the enhancement
provided. Applies to external credit enhancements as well as derivatives.
Reg AB disclosure about any new enhancement provider is also
required.
|
Depositor
|
||
|
6.04
|
Failure
to Make a Required Distribution
|
Trustee
|
|
|
6.05
|
Securities
Act Updating Disclosure
|
||
|
If
any material pool characteristic differs by 5% or more at the time
of
issuance of the securities from the description in the final prospectus,
provide updated Reg AB disclosure about the actual asset
pool.
|
Depositor
|
||
|
If
there are any new servicers or originators required to be disclosed
under
Regulation AB as a result of the foregoing, provide the information
called
for in Items 1108 and 1110 respectively.
|
Depositor
|
||
|
7.01
|
Regulation
FD Disclosure
|
Depositor
|
|
|
8.01
|
Other
Events
|
||
|
Any
event, with respect to which information is not otherwise called
for in
Form 8-K, that the registrant deems of importance to security
holders.
|
Depositor
|
||
|
9.01
|
Financial
Statements and Exhibits
|
The
Responsible Party applicable to reportable event
|
|
|
10-K
|
Must
be filed within 90 days of the fiscal year end for the
registrant.
|
||
|
9B
|
Other
Information
|
||
|
Disclose
any information required to be reported on Form 8-K during the fourth
quarter covered by the Form 10-K but not reported
|
The
Responsible Party for the applicable Form 8-K item as indicated
above
|
||
|
15
|
Exhibits
and Financial Statement Schedules
|
|
|
|
Item
1112(b) - Significant
Obligor Financial Information
|
N/A
|
||
|
Item
1114(b)(2) - Credit Enhancement Provider Financial
Information
Determining
applicable disclosure threshold
Obtaining
required financial information or effecting incorporation by
reference
|
N/A
N/A
|
||
|
Item
1115(b) - Derivative Counterparty Financial Information
Determining
current maximum probable exposure
Determining
current significance percentage
Obtaining
required financial information or effecting incorporation by
reference
|
[TBD]
[TBD]
Depositor
|
||
|
Seller
Depositor
Trustee
Issuing
entity
Servicer
Originator
Custodian
|
Seller
Depositor
Trustee
Issuing
entity
Servicer
Originator
Custodian
|
||
|
Item
1119 - Affiliations and relationships between the following entities,
or
their respective affiliates, that are material to
Certificateholders:
Seller
Depositor
Trustee
Issuing
entity
Servicer
Originator
Custodian
Credit
Enhancer/Support Provider, if any
Significant
Obligor, if any
|
Seller
Depositor
Trustee
(only
with respect to affiliations and relationships with the sponsor,
depositor
or issuing entity)
Issuing
entity
Servicer
Originator
Custodian
Depositor
Depositor
|
||
|
Item
1122 - Assessment of Compliance with Servicing
Criteria
|
Each
Party participating in the servicing function
|
||
|
Item
1123 -Servicer Compliance Statement
|
Servicer
|
||
SCHEDULE
I
PREPAYMENT
CHARGE SCHEDULE
Available
Upon Request
SCHEDULE
II
SWAP
PAYMENT SCHEDULE
Available
Upon Request
