FINANCIAL ASSET SECURITIES CORP., as Depositor WILMINGTON TRUST COMPANY, as Owner Trustee and JPMORGAN CHASE BANK, N.A., as Certificate Registrar and Certificate Paying Agent AMENDED AND RESTATED TRUST AGREEMENT Dated as of April 6, 2006 Trust...
FINANCIAL
ASSET SECURITIES CORP.,
as
Depositor
WILMINGTON
TRUST COMPANY,
as
Owner
Trustee
and
JPMORGAN
CHASE BANK, N.A.,
as
Certificate Registrar and Certificate Paying Agent
____________________________
AMENDED
AND RESTATED
Dated
as
of April 6, 2006
____________________________
Trust
Certificates,
Series
2006-1
Table
of Contents
Section
ARTICLE
I
Definitions
|
Section
1.01.
|
Definitions
|
|
Section
1.02.
|
Other
Definitional Provisions.
|
ARTICLE
II
Organization
|
Section
2.01.
|
Name
|
|
Section
2.02.
|
Office
|
|
Section
2.03.
|
Purposes
and Powers
|
|
Section
2.04.
|
Appointment
of Owner Trustee
|
|
Section
2.05.
|
Initial
Capital Contribution of Owner Trust Estate
|
|
Section
2.06.
|
Declaration
of Trust
|
|
Section
2.07.
|
Liability
of the Holders of the Certificates
|
|
Section
2.08.
|
Title
to Trust Property
|
|
Section
2.09.
|
Situs
of Trust
|
|
Section
2.10.
|
Representations
and Warranties of the Depositor
|
|
Section
2.11.
|
Payment
of Trust Fees
|
|
Section
2.12.
|
Investment
Company
|
|
Section
2.13.
|
Transfer
of Trust Estate to Owner Trustee
|
ARTICLE
III
Conveyance
of the Mortgage Loans; Certificates
|
Section
3.01.
|
Conveyance
of the Mortgage Loans
|
|
Section
3.02.
|
Initial
Ownership
|
|
Section
3.03.
|
The
Certificates
|
|
Section
3.04.
|
Authentication
of Certificates
|
|
Section
3.05.
|
Registration
of and Limitations on Transfer and Exchange of
Certificates
|
|
Section
3.06.
|
Mutilated,
Destroyed, Lost or Stolen Certificates.
|
|
Section
3.07.
|
Persons
Deemed Certificateholders
|
|
Section
3.08.
|
Access
to List of Certificateholders' Names and Addresses
|
|
Section
3.09.
|
Maintenance
of Office or Agency
|
|
Section
3.10.
|
Certificate
Paying Agent
|
ARTICLE
IV
Authority
and Duties of Owner Trustee
|
Section
4.01.
|
General
Authority
|
|
Section
4.02.
|
General
Duties
|
|
Section
4.03.
|
Action
upon Instruction
|
|
Section
4.04.
|
No
Duties Except as Specified under Specified Documents or in
Instructions
|
|
Section
4.05.
|
Restrictions
|
|
Section
4.06.
|
Prior
Notice to Certificateholders with Respect to Certain
Matters
|
|
Section
4.07.
|
Action
by Certificateholders with Respect to Certain Matters
|
|
Section
4.08.
|
Action
by Certificateholders with Respect to Bankruptcy
|
|
Section
4.09.
|
Restrictions
on Certificateholders' Power
|
|
Section
4.10.
|
Majority
Control..
|
ARTICLE
V
Application
of Trust Funds
|
Section
5.01.
|
Distributions
|
|
Section
5.02.
|
Method
of Payment
|
|
Section
5.03.
|
Tax
Returns
|
|
Section
5.04.
|
Statements
to Certificateholders
|
ARTICLE
VI
Concerning
the Owner Trustee
|
Section
6.01.
|
Acceptance
of Trusts and Duties
|
|
Section
6.02.
|
Furnishing
of Documents
|
|
Section
6.03.
|
Representations
and Warranties
|
|
Section
6.04.
|
Reliance;
Advice of Counsel
|
|
Section
6.05.
|
Not
Acting in Individual Capacity
|
|
Section
6.06.
|
Owner
Trustee Not Liable for Certificates or Related
Documents
|
|
Section
6.07.
|
Owner
Trustee May Own Certificates and Notes
|
|
Section
6.08.
|
Payments
from Owner Trust Estate
|
|
Section
6.09.
|
Doing
Business in Other Jurisdictions
|
|
Section
6.10.
|
Liability
of Certificate Registrar and Certificate Paying
Agent.
|
ARTICLE
VII
Compensation
of Owner Trustee
|
Section
7.01.
|
Owner
Trustee Fees and Expenses
|
|
Section
7.02.
|
Indemnification
|
ARTICLE
VIII
Termination
of Trust Agreement
|
Section
8.01.
|
Termination
of Trust Agreement
|
ARTICLE
IX
Successor
Owner Trustees and Additional Owner Trustees
|
Section
9.01.
|
Eligibility
Requirements for Owner Trustee
|
|
Section
9.02.
|
Replacement
of Owner Trustee
|
|
Section
9.03.
|
Successor
Owner Trustee
|
|
Section
9.04.
|
Merger
or Consolidation of Owner Trustee
|
|
Section
9.05.
|
Appointment
of Co-Trustee or Separate Trustee
|
ARTICLE
X
Miscellaneous
|
Section
10.01.
|
Amendments
|
|
Section
10.02.
|
No
Legal Title to Owner Trust Estate
|
|
Section
10.03.
|
Limitations
on Rights of Others
|
|
Section
10.04.
|
Notices
|
|
Section
10.05.
|
Severability
|
|
Section
10.06.
|
Separate
Counterparts
|
|
Section
10.07.
|
Successors
and Assigns
|
|
Section
10.08.
|
No
Petition
|
|
Section
10.09.
|
No
Recourse
|
|
Section
10.10.
|
Headings
|
|
Section
10.11.
|
GOVERNING
LAW
|
|
Section
10.12.
|
Integration
|
EXHIBITS
|
Exhibit
A - Form of Certificate
|
|
Exhibit
B - Certificate of Trust of New Century Home Equity Loan Trust
|
|
Exhibit
C - Form of Rule 144A Investment Representation
|
|
Exhibit
D - Form of Certificate of Non-Foreign Status
|
|
Exhibit
E - Form of Investment Letter
|
|
Exhibit
F - Form of Transferor Certificate
|
|
Exhibit
G - Form of ERISA Letter
|
|
Exhibit
H - Form of Transferee Certificate
|
This
Amended and Restated Trust Agreement, dated as of April 6, 2006 (as amended
from
time to time, this “Trust Agreement”), among Financial Asset Securities Corp., a
Delaware corporation, as depositor (the “Depositor”), Wilmington Trust Company,
a Delaware banking corporation, as owner trustee (the “Owner Trustee” and in its
individual capacity, the “Bank”), and JPMorgan Chase Bank, N.A., as certificate
registrar (in such capacity, the “Certificate Registrar”) and certificate paying
agent (in such capacity, the “Certificate Paying Agent”).
WITNESSETH
THAT:
In
consideration of the mutual agreements herein contained, the Depositor and
the
Owner Trustee agree as follows:
WHEREAS,
the Depositor and the Owner Trustee have previously entered into the Trust
Agreement dated as of April 4, 2006 (the “Trust Agreement”).
WHEREAS,
the parties hereto desire to amend the terms of and restate the Trust
Agreement.
In
consideration of the mutual agreements herein contained, the Depositor, the
Owner Trustee and JPMorgan Chase Bank, N.A., in its capacity as certificate
registrar and certificate paying agent, agree as follows:
ARTICLE
I
Definitions
Section
1.01. Definitions.
For all
purposes of this Trust Agreement, except as otherwise expressly provided herein
or unless the context otherwise requires, capitalized terms not otherwise
defined herein shall have the meanings assigned to such terms in Appendix A
to
the Indenture, dated April 6, 2006, between Newcastle Mortgage Securities Trust
2006-1, as Issuer, and JPMorgan Chase Bank, N.A., as Indenture Trustee, which
is
incorporated by reference herein. All other capitalized terms used herein shall
have the meanings specified herein.
Section
1.02. Other
Definitional Provisions.
(a) All
terms
defined in this Trust Agreement shall have the defined meanings when used in
any
certificate or other document made or delivered pursuant hereto unless otherwise
defined therein.
(b) As
used
in this Trust Agreement and in any certificate or other document made or
delivered pursuant hereto or thereto, accounting terms not defined in this
Trust
Agreement or in any such certificate or other document, and accounting terms
partly defined in this Trust Agreement or in any such certificate or other
document to the extent not defined, shall have the respective meanings given
to
them under generally accepted accounting principles. To the extent that the
definitions of accounting terms in this Trust Agreement or in any such
certificate or other document are inconsistent with the meanings of such terms
under generally accepted accounting principles, the definitions contained in
this Trust Agreement or in any such certificate or other document shall
control.
(c) The
words
“hereof,” “herein,” “hereunder” and words of similar import when used in this
Trust Agreement shall refer to this Trust Agreement as a whole and not to any
particular provision of this Trust Agreement; Article, Section and Exhibit
references contained in this Trust Agreement are references to Articles,
Sections and Exhibits in or to this Trust Agreement unless otherwise specified;
and the term “including” shall mean “including without limitation”.
(d) The
definitions contained in this Trust Agreement are applicable to the singular
as
well as the plural forms of such terms and to the masculine as well as to the
feminine and neuter genders of such terms.
(e) Any
agreement, instrument or statute defined or referred to herein or in any
instrument or certificate delivered in connection herewith means such agreement,
instrument or statute as from time to time amended, modified or supplemented
and
includes (in the case of agreements or instruments) references to all
attachments thereto and instruments incorporated therein; references to a Person
are also to its permitted successors and assigns.
ARTICLE
II
Organization
Section
2.01. Name.
The
trust created hereby (the “Trust”) shall be known as “Newcastle Mortgage
Securities Trust 2006-1”, in which name the Owner Trustee may conduct the
business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and ▇▇▇ and be sued.
Section
2.02. Office.
The
office of the Trust shall be in care of the Owner Trustee at the Corporate
Trust
Office or at such other address in Delaware as the Owner Trustee may designate
by written notice to the Certificateholders and the Depositor.
Section
2.03. Purposes
and Powers.
The
purpose of the Trust is to engage in the following activities and the Trust
shall have the power and authority:
(i) to
issue
the Notes pursuant to the Indenture and the Certificates pursuant to this Trust
Agreement and to sell the Notes and the Certificates;
(ii) to
pay
the organizational, start-up and transactional expenses of the
Trust;
(iii) to
assign, grant, transfer, pledge and convey the Mortgage Loans pursuant to the
Indenture and to hold, manage and distribute to the Certificateholder pursuant
to Section 5.01 herein, any portion of the Mortgage Loans released from the
Lien
of, and remitted to the Trust pursuant to the Indenture;
(iv) to
enter
into and perform its obligations under the Basic Documents to which it is to
be
a party;
(v) if
directed by holders of Certificates representing more than 50% of the beneficial
interests in the Trust, sell the Trust Estate subsequent to the discharge of
the
Indenture, all for the benefit of the holders of the Certificates;
(vi) to
engage
in those activities, including entering into agreements, that are necessary,
suitable or convenient to accomplish the foregoing or are incidental thereto
or
connected therewith;
(vii) subject
to compliance with the Basic Documents, to engage in such other activities
as
may be required in connection with conservation of the Owner Trust Estate and
the making of distributions to the Certificateholder and the Noteholders;
and
(viii) as
set
forth in the Indenture, at any time on or after the Closing Date, the Issuer
shall have the right to convey to the Trust Estate, solely for the benefit
of
the Holder of the Certificates, a derivative contract or comparable instrument.
Any such instrument shall constitute a fully prepaid agreement. All collections,
proceeds and other amounts in respect of such an instrument shall be distributed
to the Certificates on the Payment Date following receipt thereof by the
Indenture Trustee.
The
Trust
is hereby authorized to engage in the foregoing activities. The Trust shall
not
engage in any activity other than in connection with the foregoing or other
than
as required or authorized by the terms of this Trust Agreement or the Basic
Documents.
In
the
event the Interest Rate Swap Agreement is terminated as a result of the
designation by either party thereto of an Early Termination Date (as defined
therein), the Trust shall, at the direction of the Majority Certificateholder,
appoint a replacement counterparty to enter into a replacement swap agreement.
The Owner Trustee shall have no responsibility with regard to the selection
of a
replacement swap provider or the negotiation of a replacement swap agreement.
Any Swap Termination Payment received by the Owner Trustee shall be remitted
to
the Indenture Trustee for deposit in the Swap Account.
Section
2.04. Appointment
of Owner Trustee.
The
Depositor hereby appoints the Owner Trustee as trustee of the Trust effective
as
of the date hereof, to have all the rights, powers and duties set forth
herein.
Section
2.05. Initial
Capital Contribution of Owner Trust Estate.
The
Depositor hereby sells, assigns, transfers, conveys and sets over to the Trust,
as of the date hereof, the sum of $1. The Owner Trustee hereby acknowledges
receipt in trust from the Depositor, as of the date hereof, of the foregoing
contribution, which shall constitute the initial corpus of the Trust and shall
be deposited in the Certificate Distribution Account. The Owner Trustee also
acknowledges on behalf of the Trust the receipt in trust pursuant to Section
3.01 of the Mortgage Loans, the rights with respect to the Interest Rate Swap
Agreement and the rights with respect to the representations and warranties
made
by the Originator under the Master Agreement which shall constitute the Owner
Trust Estate.
Section
2.06. Declaration
of Trust.
The
Owner Trustee hereby declares that it shall hold the Owner Trust Estate in
trust
upon and subject to the conditions set forth herein for the use and benefit
of
the Certificateholders, subject to the obligations of the Trust under the Basic
Documents. It is the intention of the parties hereto that the Trust constitute
a
“statutory trust” under the Statutory Trust Statute and that this Trust
Agreement constitute the governing instrument of such statutory trust. It is
the
intention of the parties hereto that, for federal and state income and state
and
local franchise tax purposes, the Trust (A) shall not be treated as (i) an
association subject separately to taxation as a corporation or (ii) a “publicly
traded partnership” as defined in Treasury Regulation Section 1.7704-1, (B)
shall, at all times after the Closing Date, be disregarded as a separate entity,
and (C) that each Class of Notes shall be debt, and the provisions of this
Agreement shall be interpreted to further this intention. It is the intention
of
the parties hereto that, for federal, state and local tax purposes, the
Depositor shall at no time be treated as an owner of the Mortgage Loans or
as
the issuer of or obligor on indebtedness secured by the Mortgage Loans and
evidenced by the Notes, and the parties hereto mutually covenant to take all
pertinent tax reporting positions consistent with that intent. Except as
otherwise provided in this Trust Agreement, the rights of the Certificateholder
will be those of equity owners of the Trust. Effective as of the date hereof,
the Owner Trustee shall have all rights, powers and duties set forth herein
and
in the Statutory Trust Statute with respect to accomplishing the purposes of
the
Trust.
Section
2.07. Reserved.
Section
2.08. Title
to Trust Property.
Except
with respect to the Mortgage Loans, which will be assigned of record to the
Indenture Trustee pursuant to the Indenture, legal title to the Owner Trust
Estate shall be vested at all times in the Trust as a separate legal entity
except where applicable law in any jurisdiction requires title to any part
of
the Owner Trust Estate to be vested in a trustee or trustees, in which case
title shall be deemed to be vested in the Owner Trustee, a co-trustee and/or
a
separate trustee, as the case may be.
Section
2.09. Situs
of Trust.
The
Trust will be located and administered in the State of Delaware. All bank
accounts maintained by the Owner Trustee on behalf of the Trust shall be located
in the State of Delaware. The Trust shall not have any employees in any state
other than Delaware; provided, however, that nothing herein shall restrict
or
prohibit the Owner Trustee from having employees within or without the State
of
Delaware or taking actions outside the State of Delaware in order to comply
with
Section 2.03. Payments will be received by the Trust only in Delaware, New
York
or California, and payments will be made by the Trust only from Delaware, New
York or California. The only office of the Trust will be at the Corporate Trust
Office in Delaware.
Section
2.10. Representations
and Warranties of the Depositor.
The
Depositor hereby represents and warrants to the Owner Trustee that:
(i) The
Depositor is duly organized and validly existing as a corporation in good
standing under the laws of the State of Delaware, with power and authority
to
own its properties and to conduct its business as such properties are currently
owned and such business is presently conducted.
(ii) The
Depositor is duly qualified to do business as a foreign corporation in good
standing and has obtained all necessary licenses and approvals in all
jurisdictions in which the ownership or lease of its property or the conduct
of
its business shall require such qualifications and in which the failure to
so
qualify would have a material adverse effect on the business, properties, assets
or condition (financial or other) of the Depositor.
(iii) The
Depositor has the power and authority to execute and deliver this Trust
Agreement and to carry out its terms; the Depositor has full power and authority
to convey and assign the property to be conveyed and assigned to and deposited
with the Trust as part of the Owner Trust Estate and the Depositor has duly
authorized such conveyance and assignment and deposit to the Trust by all
necessary corporate action; and the execution, delivery and performance of
this
Trust Agreement have been duly authorized by the Depositor by all necessary
corporate action.
(iv) The
consummation of the transactions contemplated by this Trust Agreement and the
fulfillment of the terms hereof do not conflict with, result in any breach
of
any of the terms and provisions of, or constitute (with or without notice or
lapse of time) a default under, the certificate of incorporation or bylaws
of
the Depositor, or any indenture, agreement or other instrument to which the
Depositor is a party or by which it is bound; nor result in the creation or
imposition of any Lien upon any of its properties pursuant to the terms of
any
such indenture, agreement or other instrument (other than pursuant to the Basic
Documents); nor violate any law or, to the best of the Depositor's knowledge,
any order, rule or regulation applicable to the Depositor of any court or of
any
federal or state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Depositor or its
properties.
(v) The
Trust
is not required to register as an investment company under the Investment
Company Act and is not under the control of a Person required to so
register.
Section
2.11. Payment
of Trust Fees.
Pursuant to the terms of Section 6.07 of the Indenture, on each Payment Date,
the Indenture Trustee shall remit the Owner Trustee Fee (beginning on the
13th
Payment
Date) and any Expenses incurred by the Owner Trustee to the Owner Trustee and
shall pay the Trust's expenses incurred with respect to the performance of
the
Trust's duties under the Indenture, or, if such amounts are insufficient, the
Owner Trustee shall be paid pursuant to Section 7.01 hereof. The Sponsor shall
pay the initial and first-year annual fees and expenses owing to the Owner
Trustee on the Closing Date pursuant to a separate side agreement.
Section
2.12. Investment
Company.
Neither
the Depositor nor any holder of a Certificate shall take any action which would
cause the Trust to become an “investment company” which would be required to
register under the Investment Company Act.
Section
2.13. Transfer
of Trust Estate to Owner Trustee.
(a)
Effective as of the date hereof, the Depositor does hereby sell, assign,
transfer, and otherwise convey to, and deposit with, the Trust, until this
Agreement terminates pursuant to Section 8.01, the entire Trust Estate, such
conveyance to be made in exchange for the Notes and the Certificates. Such
sale
includes, without limitation, all amounts payable to and all rights of the
holder of the Collateral pursuant to this Agreement.
The
conveyance of the Collateral and all other assets constituting the Trust Estate
by the Depositor as contemplated hereby is absolute and is intended by the
parties to constitute a sale of the Collateral and all other assets constituting
the Trust Estate by the Depositor to the Trust. It is, further, not intended
that such conveyance be deemed a pledge of security for a loan. If such
conveyance is deemed to be a pledge of security for a loan, however, the
Depositor intends that the rights and obligations of the parties to such loan
shall be established pursuant to the terms of this Agreement. The Depositor
also
intends and agrees that, in such event:
(i) this
Agreement shall constitute a security agreement under applicable law and shall
be deemed to create valid and continuing security interest (as defined in the
applicable UCC) in the Trust Estate (including, without limitation, the
Collateral, the Certificate Distribution Account and any proceeds thereof)
in
favor of the Trust, which security interest is prior to all other Liens, and
is
enforceable as such as against creditors of and purchasers from the
Depositor;
(ii) other
than the security interest granted to the Trust pursuant to this Agreement,
Depositor has not pledged, assigned, sold, granted a security interest in,
or
otherwise conveyed any of the Trust Estate, has not authorized the filing of
and
is not aware of any financing statements against the Trust Estate that includes
a description of collateral covering the Trust Estate other than any financing
statements relating to the security interest granted to the Trust hereunder
or
that has been terminated. The Depositor is not aware of any judgment or tax
lien
filings against Depositor;
(iii) the
Depositor owns and has good and marketable title to the Trust Estate free and
clear of any Lien, claim or encumbrance of any Person;
(iv) the
Certificate Distribution Account constitutes a “deposit account” within the
meaning of the applicable UCC. The Depositor has directed the bank where the
Certificate Distribution Account is held to take all steps necessary to cause
the Certificate Paying Agent to become the account holder of the Certificate
Distribution Account. The Certificate Distribution Account is not in the name
of
any Person other than as provided in Section 3.10 of this Agreement. The
Depositor has not consented to the maintenance of the Certificate Distribution
Account in compliance with instructions of any Person other than the Certificate
Paying Agent;
(v) the
Trust
Estate (excluding the Certificate Distribution Account and any proceeds thereof)
constitutes “deposit accounts,” “general intangibles” and “instruments” within
the meaning of the applicable UCC). The Depositor has received all required
consents and approvals to the pledge of the portions of the Trust Estate
(excluding the Certificate Distribution Account and any proceeds thereof)
constituting payment intangibles;
(vi) the
Depositor has caused or will have caused, within ten days, the filing of all
appropriate financing statements in the appropriate filing offices under
applicable law in order to perfect the security interest in the Trust Estate
granted to the Trust hereunder. All financing statements filed or to be filed
against the Depositor in favor of the Trust (or any subsequent assignee,
including, without limitation, the Indenture Trustee) in connection herewith
describing the Trust Estate contain a statement to the following effect, “A
purchase of, or security interest in, any collateral described in this financing
statement will violate the rights of the secured party;” and
(vii) the
Depositor shall, to the extent consistent with this Agreement, take such
additional reasonable actions as may be necessary to ensure that, if this
Agreement were deemed to create a security interest in the Collateral and the
other assets of the Trust Estate, such security interest would be a perfected
security interest of first priority under applicable law and will be maintained
as such throughout the life of this Agreement. Notifications to, and
acknowledgments, receipts or confirmations from, Persons holding such property,
shall be deemed to be notifications to, or acknowledgments, receipts or
confirmations from, financial intermediaries, bailees or agents (as applicable)
of the Owner Trustee on behalf of the Trust (or any subsequent assignee,
including, without limitation, the Indenture Trustee) for the purpose of
perfecting such security interest under applicable law.
(b) The
Owner
Trustee declares that it holds and will hold the Trust Estate and such documents
and instruments and that it holds and will hold all other assets and documents
to be included in the Trust Estate, in trust for the exclusive use and benefit
of all present and future Certificateholders.
Except
as
expressly provided in Section 8.01, neither the Depositor nor any
Certificateholder shall be able to revoke the Trust established hereunder.
Except as provided in Sections 4.01, 4.02, 4.03, 5.01 and 8.01 hereof, the
Owner
Trustee or Certificate Paying Agent (as applicable) shall not assign, sell,
dispose of or transfer any interest in, nor may the Depositor or any
Certificateholder withdraw from the Trust, the Collateral or other asset
constituting the Trust Estate.
ARTICLE
III
Conveyance
of the Mortgage Loans;
Certificates
Section
3.01. Conveyance
of the Mortgage Loans.
The
Depositor, concurrently with the execution and delivery hereof, does hereby
sell, transfer, convey and assign to the Trust, on behalf of the Holders of
the
Notes and the Certificates, without recourse, all its right, title and interest
in and to the Mortgage Loans, including all interest and principal received
on
or with respect to the Collateral.
The
conveyance of the Mortgage Loans by the Depositor (on behalf of the Seller)
to
the Trust hereunder is intended to facilitate the simultaneous issuance of
the
Notes under the Indenture and issuance of the Certificates hereunder to the
Seller as Holder, and the Seller has no present intention of selling any of
the Certificates. Accordingly, at the time of the transaction set forth herein,
the Seller will retain without interruption, through the ownership of the
Certificates, the economic benefits associated with ownership of the Mortgage
Loans as well as the economic burdens associated with such ownership, subject
to
the lien of the Indenture and subject to this Agreement.
The
Depositor understands and agrees that it is not intended that any Mortgage
Loan
conveyed to the Trust pursuant to this Section 3.01 be 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.
Section
3.02. Initial
Ownership.
Upon
the formation of the Trust by the sale by the Depositor pursuant to Section
2.05
and until the sale of the Mortgage Loans pursuant to Section 3.01 and the
issuance of the Certificates, and thereafter except as otherwise permitted
hereunder, the Depositor shall be the sole beneficial owner.
Section
3.03. The
Certificates.
The
Certificates shall be issued in the form of three Certificates, each
representing a 100% Certificate Percentage Interest in such class. At initial
issuance, the Certificates shall be issued to and registered in the name of
NIC
OTC LLC. The Certificates shall be executed on behalf of the Trust by manual
or
facsimile signature of an authorized officer of the Owner Trustee and
authenticated in the manner provided in Section 3.04. Certificates bearing
the
manual or facsimile signatures of individuals who were, at the time when such
signatures shall have been affixed, authorized to sign on behalf of the Trust,
shall be validly issued and entitled to the benefit of this Trust Agreement,
notwithstanding that such individuals or any of them shall 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 authentication and delivery of such
Certificates. A Person shall become a Certificateholder and shall be entitled
to
the rights and subject to the obligations of a Certificateholder hereunder
upon
such Person's acceptance of a Certificate duly registered in such Person's
name,
pursuant to Section 3.05.
A
transferee of a Certificate shall become a Certificateholder and shall be
entitled to the rights and subject to the obligations of a Certificateholder
hereunder upon such transferee's acceptance of a Certificate duly registered
in
such transferee's name pursuant to and upon satisfaction of the conditions
set
forth in Section 3.05.
Section
3.04. Authentication
of Certificates.
The
Owner Trustee shall cause all Certificates issued hereunder to be executed
and
authenticated on behalf of the Trust, authenticated and delivered to or upon
the
written order of the Depositor, signed by its chairman of the board, its
president or any vice president, without further corporate action by the
Depositor, in authorized denominations. No Certificate shall entitle its holder
to any benefit under this Trust Agreement or be valid for any purpose unless
there shall appear on such Certificate a certificate of authentication
substantially in the form set forth in Exhibit A, executed by the Owner Trustee
or the Certificate Registrar by manual signature; such authentication shall
constitute conclusive evidence that such Certificate shall have been duly
authenticated and delivered hereunder. All Certificates shall be dated the
date
of their authentication.
Section
3.05. Registration
of and Limitations on Transfer and Exchange of Certificates.
The
Certificate Registrar shall keep or cause to be kept, 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. JPMorgan Chase
Bank,
N.A. shall be the initial Certificate Registrar. If the Certificate Registrar
resigns or is removed, the Majority Certificateholder, with the consent of
the
Owner Trustee, shall appoint a successor Certificate Registrar.
Subject
to satisfaction of the conditions set forth below with respect to the
Certificate, upon surrender for registration of transfer of any Certificate
at
the office or agency maintained pursuant to Section 3.09, the Owner Trustee
or
the Certificate Registrar shall execute, authenticate and deliver in the name
of
the designated transferee or transferees, one or more new Certificates in
authorized denominations of a like aggregate amount dated the date of
authentication by the Owner Trustee or the Certificate Registrar. At the option
of a Holder, Certificates may be exchanged for other Certificates of authorized
denominations of a like aggregate amount upon surrender of the Certificates
to
be exchanged at the office or agency maintained pursuant to Section
3.09.
Every
Certificate presented or surrendered for registration of transfer or exchange
shall be accompanied by a written instrument of transfer in form satisfactory
to
the Certificate Registrar duly executed by the Holder or such Holder's attorney
duly authorized in writing. Each Certificate surrendered for registration of
transfer or exchange shall be cancelled and subsequently disposed of by the
Certificate Registrar in accordance with its customary practice.
No
service charge shall be made for any registration of transfer or exchange of
Certificates, but the Owner Trustee or 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.
No
Certificates may be transferred (or re-transferred) unless 100% of all
Certificates are transferred (or re-transferred) to one Person for federal
income tax purposes, and no Person shall become a Certificateholder until it
shall establish its non-foreign status by submitting to the Certificate Paying
Agent an IRS Form W-9 and the Certificate of Non-Foreign Status set forth in
Exhibit D hereto.
No
person
shall become a Certificateholder until it shall establish its status as a REIT,
as a “qualified REIT subsidiary” or by an entity that is wholly-owned by a REIT
or a “qualified REIT subsidiary” and disregarded for federal income tax purposes
within the meaning of Section 856(a) or Section 856(i) of the Code,
respectively, by submitting to the Certificate Registrar and the Owner Trustee,
the Transferee Certificate set forth in Exhibit H hereto.
No
transfer, sale, pledge or other disposition of a Certificate shall be made
unless such transfer, sale, pledge or other disposition is exempt from the
registration requirements of the Securities Act and any applicable state
securities laws or is made in accordance with said Act and laws. In the event
of
any such transfer, the Certificate Registrar or the Depositor shall prior to
such transfer require the transferee to execute (A) either (i) (a) an investment
letter in substantially the form attached hereto as Exhibit C (or in such form
and substance reasonably satisfactory to the Certificate Registrar and the
Depositor) which investment letter shall not be an expense of the Trust, the
Owner Trustee, the Certificate Registrar, the Servicer or the Depositor and
which investment letter states that, among other things, such transferee (1)
is
a “qualified institutional buyer” as defined under Rule 144A, acting for its own
account or the accounts of other “qualified institutional buyers” as defined
under Rule 144A, and (2) is aware that the proposed transferor intends to rely
on the exemption from registration requirements under the Securities Act of
1933, as amended, provided by Rule 144A or (ii) (a) a written Opinion of Counsel
acceptable to and in form and substance satisfactory to the Certificate
Registrar, the Owner Trustee and the Depositor that such transfer may be made
pursuant to an exemption, describing the applicable exemption and the basis
therefor, from said Act and laws or is being made pursuant to said Act and
laws,
which Opinion of Counsel shall not be an expense of the Trust, the Owner
Trustee, the Certificate Registrar, the Servicer or the Depositor and (b) the
transferee executes a representation letter, substantially in the form of
Exhibit F hereto, and transferor executes a representation letter, substantially
in the form of Exhibit E hereto, each acceptable to and in form and substance
satisfactory to the Certificate Registrar, the Owner Trustee and the Depositor
certifying the facts surrounding such transfer, which representation letters
shall not be an expense of the Trust, the Owner Trustee, the Certificate
Registrar, the Servicer or the Depositor and (B) the Certificate of Non-Foreign
Status (in substantially the form attached hereto as Exhibit D) acceptable
to
and in form and substance reasonably satisfactory to the Certificate Registrar,
the Owner Trustee and the Depositor, which certificate shall not be an expense
of the Trust, the Owner Trustee, the Certificate Registrar or the Depositor.
The
Holder of a Certificate desiring to effect such transfer shall, and does hereby
agree to, indemnify the Trust, the Owner Trustee, the Certificate Registrar,
the
Servicer 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 Certificates or any interest therein shall be made to any Person
unless the Depositor, the Owner Trustee, the Certificate Registrar and the
Servicer are provided with an Opinion of Counsel which establishes to the
satisfaction of the Depositor, the Owner Trustee, the Certificate Registrar
and
the Servicer that the purchase of 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 Owner Trustee,
the Certificate Registrar or the Servicer 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 Owner Trustee, the Certificate
Registrar or the Servicer. In lieu of such Opinion of Counsel, a Person
acquiring such Certificates may provide a certification in the form of Exhibit
G
to this Agreement, which the Depositor, the Owner Trustee, the Certificate
Registrar and the Servicer may rely upon without further inquiry or
investigation. Neither an Opinion of Counsel nor a certification will be
required in connection with the initial transfer of any such Certificate by
the
Depositor to an affiliate of the Depositor (in which case, the Depositor or
any
affiliate thereof shall be deemed to have represented that such affiliate is
not
a Plan or a Person investing Plan Assets) and the Owner Trustee and the
Certificate Registrar shall be entitled to conclusively rely upon a
representation (which, upon the request of the Owner Trustee or the Certificate
Registrar, shall be a written representation) from the Depositor of the status
of such transferee as an affiliate of the Depositor.
No
offer,
sale, transfer, pledge, hypothecation or other disposition (including any
pledge, sale or transfer under a repurchase transaction or securities loan)
of
any Certificate shall be made to any transferee unless, prior to such
disposition, the proposed transferor delivers to the Owner Trustee and the
Certificate Registrar an Opinion of Counsel, rendered by a law firm generally
recognized to be qualified to opine concerning the tax aspects of asset
securitization, to the effect that such transfer (including any disposition
permitted following any default under any pledge or repurchase transaction)
will
not cause the Trust to be (i) treated as an association taxable as a corporation
for federal income tax and relevant state income and franchise tax purposes
or
(ii) taxable as a “publicly traded partnership” as defined in Treasury
Regulation section 1.7704-1 for federal income tax purposes and relevant state
franchise or income tax purposes. Notwithstanding the foregoing, the provisions
of this paragraph shall not apply to the initial transfer of the Certificates
to
the Depositor.
Section
3.06. Mutilated,
Destroyed, Lost or Stolen Certificates.
If (a)
any mutilated Certificate shall be surrendered to the Certificate Registrar,
or
if the Certificate Registrar shall receive evidence to its satisfaction of
the
destruction, loss or theft of any Certificate and (b) there shall be delivered
to the Certificate Registrar and the Owner Trustee such security or indemnity
as
may be required by them to save each of them harmless, then in the absence
of
notice to the Certificate Registrar or the Owner Trustee that such Certificate
has been acquired by a bona fide purchaser, the Owner Trustee shall execute
on
behalf of the Trust and the Owner Trustee or the Certificate Registrar, shall
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
denomination. In connection with the issuance of any new Certificate under
this
Section 3.06, the Owner Trustee or the Certificate Registrar may require the
payment of a sum sufficient to cover any expenses of the Owner Trustee or the
Certificate Registrar (including fees and expenses of counsel) and any tax
or
other governmental charge that may be imposed in connection therewith. Any
duplicate Certificate issued pursuant to this Section 3.06 shall constitute
conclusive 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
3.07. Persons
Deemed Certificateholders.
Prior
to due presentation of a Certificate for registration of transfer, the Owner
Trustee, the Certificate Registrar or any Certificate Paying Agent may treat
the
Person in whose name any Certificate is registered in the Certificate Register
as the owner of such Certificate for the purpose of receiving distributions
pursuant to Section 5.02 and for all other purposes whatsoever, and none of
the
Trust, the Owner Trustee, the Certificate Registrar or any Certificate Paying
Agent shall be bound by any notice to the contrary.
Section
3.08. Access
to List of Certificateholders' Names and Addresses.
The
Certificate Registrar shall furnish or cause to be furnished to the Depositor,
the Certificate Paying Agent or the Owner Trustee, within 15 days after receipt
by the Certificate Registrar of a written request therefor from the Depositor,
the Certificate Paying Agent or the Owner Trustee, a list, in such form as
the
Depositor, the Certificate Paying Agent or the Owner Trustee, as the case may
be, may reasonably require, of the names and addresses of the Certificateholders
as of the most recent Record Date. Each Holder, by receiving and holding a
Certificate, shall be deemed to have agreed not to hold any of the Trust, the
Depositor, the Certificate Paying Agent, the Certificate Registrar or the Owner
Trustee accountable by reason of the disclosure of its name and address,
regardless of the source from which such information was derived.
Section
3.09. Maintenance
of Office or Agency.
The
Owner Trustee on behalf of the Trust, shall maintain an office or offices or
agency or agencies where Certificates may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Owner Trustee
in respect of the Certificates may be served. The Owner Trustee initially
designates the office of the agent of the Indenture Trustee at ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: Transfer Dept., Newcastle Mortgage Securities
Trust 2006-1, for purposes of such surrender and the Corporate Trust Office
of
the Indenture Trustee as its office for service of notices or demands. The
Owner
Trustee shall give prompt written notice to the Depositor, the Certificate
Paying Agent, the Certificate Registrar and the Certificateholders of any change
in the location of the Certificate Register or any such office or
agency.
Section
3.10. Certificate
Paying Agent.
(a)
The
Certificate Paying Agent shall make distributions to Certificateholders from
the
Certificate Distribution Account on behalf of the Trust in accordance with
the
provisions of the Certificates and Section 5.01 hereof from payments remitted
to
the Certificate Paying Agent by the Indenture Trustee pursuant to Section 3.05
of the Indenture. The Trust hereby appoints JPMorgan Chase Bank, N.A. as
Certificate Paying Agent and JPMorgan Chase Bank, N.A. hereby accepts such
appointment and further agrees that it will be bound by the provisions of this
Trust Agreement relating to the Certificate Paying Agent and shall:
(i) hold
all
sums held by it for the payment of amounts due with respect to the Certificates
in trust for the benefit of the Persons entitled thereto until such sums shall
be paid to such Persons or otherwise disposed of as herein
provided;
(ii) give
the
Owner Trustee notice of any default by the Trust of which a Responsible Officer
of the Certificate Paying Agent has actual knowledge in the making of any
payment required to be made with respect to the Certificates;
(iii) at
any
time during the continuance of any such default, upon the written request of
the
Owner Trustee forthwith pay to the Owner Trustee on behalf of the Trust all
sums
so held in Trust by such Certificate Paying Agent;
(iv) not
resign from its position as Certificate Paying Agent so long as it is Indenture
Trustee except that it shall immediately resign as Certificate Paying Agent
and
forthwith pay to the Owner Trustee on behalf of the Trust all sums held by
it in
trust for the payment of Certificates if at any time it ceases to comply with
the requirements of this Section 3.10;
(v) comply
with all requirements of the Code with respect to the withholding from any
payments made by it on any Certificates of any applicable withholding taxes
imposed thereon and with respect to any applicable reporting requirements in
connection therewith; and
(vi) not
institute bankruptcy proceedings against the Issuer in connection with this
Trust Agreement.
(b) The
Trust
may revoke such power and remove the Certificate Paying Agent if it determines
in its sole discretion that the Certificate Paying Agent shall have failed
to
perform its obligations under this Trust Agreement in any material respect.
In
the event that JPMorgan Chase Bank, N.A. shall no longer be the Certificate
Paying Agent under this Trust Agreement and Paying Agent under the Indenture,
the Majority Certificateholder, with the consent of the Owner Trustee, shall
appoint a successor to act as Certificate Paying Agent (which shall be a bank
or
trust company) and which shall also be the successor Paying Agent under the
Indenture. The Owner Trustee shall cause such successor Certificate Paying
Agent
or any additional Certificate Paying Agent hereunder to execute and deliver
to
the Owner Trustee an instrument to the effect set forth in Section 3.10(a)
as it
relates to the Certificate Paying Agent. The Certificate Paying Agent shall
return all unclaimed funds to the Trust and upon removal of a Certificate Paying
Agent such Certificate Paying Agent shall also return all funds in its
possession to the Trust. The provisions of Sections 6.01, 6.04, 6.05, 6.06,
6.07, 6.08 and 7.01 shall apply to the Certificate Paying Agent to the extent
applicable. Any reference in this Agreement to the Certificate Paying Agent
shall include any co-paying agent unless the context requires
otherwise.
(c) The
Certificate Paying Agent shall establish and maintain with itself a trust
account (the “Certificate Distribution Account”) in which the Certificate Paying
Agent shall deposit, on the same day as it is received from the Indenture
Trustee, each remittance received by the Certificate Paying Agent with respect
to payments made pursuant to the Indenture. The Certificate Paying Agent shall
make all distributions to Certificates, from moneys on deposit in the
Certificate Distribution Account, in accordance with Section 5.01
hereof.
ARTICLE
IV
Authority
and Duties of Owner Trustee
Section
4.01. General
Authority.
The
Owner Trustee is authorized and directed to execute and deliver the Basic
Documents to which the Trust is to be a party and each certificate or other
document attached as an exhibit to or contemplated by the Basic Documents to
which the Trust is to be a party and any amendment or other agreement or
instrument described herein all as approved by the Depositor, as evidenced
conclusively by the Owner Trustee's execution thereof. In addition to the
foregoing, the Owner Trustee is authorized, but shall not be obligated, except
as otherwise provided in this Trust Agreement, to take all actions required
of
the Trust pursuant to the Basic Documents.
Section
4.02. General
Duties.
It
shall be the duty of the Owner Trustee to discharge (or cause to be discharged)
all of its responsibilities pursuant to the terms of this Trust Agreement and
the Basic Documents to which the Trust is a party and to administer the Trust
in
the interest of the Certificateholders, subject to the Basic Documents and
in
accordance with the provisions of this Trust Agreement.
Section
4.03. Action
upon Instruction.
(a)
Subject
to Article IV and in accordance with the terms of the Basic Documents, the
Certificateholders may by written instruction direct the Owner Trustee in the
management of the Trust. Such direction may be exercised at any time by written
instruction of the Certificateholders pursuant to Article IV.
(b) Notwithstanding
the foregoing, the Owner Trustee shall not be required to take any action
hereunder or under any Basic Document if the Owner Trustee shall have reasonably
determined, or shall have been advised by counsel, that such action is likely
to
result in liability on the part of the Owner Trustee or is contrary to the
terms
hereof or of any Basic Document or is otherwise contrary to law.
(c) Whenever
the Owner Trustee is required to decide between alternative courses of action
permitted or required by the terms of this Trust Agreement or under any Basic
Document, or in the event that the Owner Trustee is unsure as to the application
of any provision of this Trust Agreement or any Basic Document or any such
provision is ambiguous as to its application, or is, or appears to be, in
conflict with any other applicable provision, or in the event that this Trust
Agreement permits any determination by the Owner Trustee or is silent or is
incomplete as to the course of action that the Owner Trustee is required to
take
with respect to a particular set of facts, the Owner Trustee shall promptly
give
notice (in such form as shall be appropriate under the circumstances) to the
Certificateholders requesting instruction as to the course of action to be
adopted, and to the extent the Owner Trustee acts in good faith in accordance
with any written instruction of the Certificateholders, the Owner Trustee shall
not be liable on account of such action to any Person. If the Owner Trustee
shall not have received appropriate instruction within 10 days of such notice
(or within such shorter period of time as reasonably may be specified in such
notice or may be necessary under the circumstances) it may, but shall be under
no duty to, take or refrain from taking such action not inconsistent with this
Trust Agreement or the Basic Documents, as it shall deem to be in the best
interests of the Certificateholders, and the Owner Trustee shall have no
liability to any Person for such action or inaction.
Section
4.04. No
Duties Except as Specified under Specified Documents or in
Instructions.
The
Owner Trustee shall not have any duty or obligation to manage, make any payment
with respect to, register, record, sell, dispose of, or otherwise deal with
the
Owner Trust Estate, or to otherwise take or refrain from taking any action
under, or in connection with, any document contemplated hereby to which the
Owner Trustee is a party, except as expressly provided (i) in accordance with
the powers granted to and the authority conferred upon the Owner Trustee
pursuant to this Trust Agreement, (ii) in accordance with the Basic Documents
and (iii) in accordance with any document or instruction delivered to the Owner
Trustee pursuant to Section 4.03; and no implied duties or obligations shall
be
read into this Trust Agreement or any Basic Document against the Owner Trustee.
The Owner Trustee shall have no responsibility for filing any financing or
continuation statement in any public office at anytime or to otherwise perfect
or maintain the perfection of any security interest or lien granted to it
hereunder or to prepare or file any Securities and Exchange Commission filing
for the Trust or to record this Trust Agreement or any Basic Document.
Notwithstanding any provision herein or in any other Basic Document, the Owner
Trustee shall not be obligated to prepare, file or execute any documents or
certifications required to be filed by the Trust pursuant to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act of 2002, as amended. The Owner Trustee nevertheless agrees that it will,
at
its own cost and expense, promptly take all action as may be necessary to
discharge any liens on any part of the Owner Trust Estate that result from
actions by, or claims against, the Owner Trustee that are not related to the
ownership or the administration of the Owner Trust Estate.
Section
4.05. Restrictions.
(a)
The
Owner Trustee or the Depositor (or an Affiliate thereof) shall not take any
action (x) that is inconsistent with the purposes of the Trust set forth in
Section 2.03, (y) that, to the actual knowledge of the Owner Trustee based
on an
Opinion of Counsel rendered by a law firm generally recognized to be qualified
to opine concerning the tax aspects of asset securitization, would result in
the
Trust becoming taxable as a corporation for federal income tax purposes or
(z)
would result in the amendment or modification of this Trust Agreement. The
Certificateholders shall not direct the Owner Trustee to take action that would
violate the provisions of this Section 4.05.
(b) The
Owner
Trustee shall not convey or transfer any of the Trust's properties or assets,
including those included in the Trust Estate, to any person unless (a) it shall
have received an Opinion of Counsel rendered by a law firm generally recognized
to be qualified to opine concerning the tax aspects of asset securitization
to
the effect that such transaction will not have any material adverse tax
consequence to the Trust or any Certificateholder and (b) such conveyance or
transfer shall not violate the provisions of Section 3.16(b) of the
Indenture.
Section
4.06. Prior
Notice to Certificateholders with Respect to Certain Matters.
With
respect to the following matters, the Owner Trustee shall not take action unless
at least 10 days before the taking of such action, the Owner Trustee shall
have
notified the Certificateholders in writing of the proposed action and the
Certificateholders shall have notified the Owner Trustee in writing prior to
the
10th
day
after such notice is given that such Certificateholders have given their consent
or provided alternative direction:
(a) the
initiation of any claim or lawsuit by the Trust (except claims or lawsuits
brought in connection with the collection of cash distributions due and owing
under the Mortgage Loans) and the compromise of any action, claim or lawsuit
brought by or against the Trust (except with respect to the aforementioned
claims or lawsuits for collection of cash distributions due and owing under
the
Mortgage Loans);
(b) the
election by the Trust to file an amendment to the Certificate of Trust (unless
such amendment is required to be filed under the Statutory Trust
Statute);
(c) the
amendment of the Indenture by a supplemental indenture in circumstances where
the consent of any Noteholder is required;
(d) the
amendment of the Indenture by a supplemental indenture in circumstances where
the consent of any Noteholder is not required and such amendment materially
adversely affects the interest of the Certificateholders; and
(e) the
appointment pursuant to the Indenture of a successor Note Registrar, Paying
Agent or Indenture Trustee or pursuant to this Trust Agreement of a successor
Certificate Registrar or Certificate Paying Agent or the consent to the
assignment by the Note Registrar, Paying Agent, Indenture Trustee, Certificate
Registrar or Certificate Paying Agent of its obligations under the Indenture
or
this Trust Agreement, as applicable.
Section
4.07. Action
by Certificateholders with Respect to Certain Matters.
The
Owner Trustee shall not have the power, except upon the direction of the
Certificateholders to (a) remove the Servicer under the Sale and Servicing
Agreement pursuant to Sections 6.01 thereof or (b) except as expressly provided
in the Basic Documents, sell the Mortgage Loans after the termination of the
Indenture. The Owner Trustee shall take the actions referred to in the preceding
sentence only upon written instructions signed by the
Certificateholders.
Section
4.08. Action
by Certificateholders with Respect to Bankruptcy.
The
Owner Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy relating to the Trust without the unanimous prior approval of all
Certificateholders and the consent of the Noteholders and the Owner Trustee
and
the delivery to the Owner Trustee by each such Certificateholder of a
certificate certifying that such Certificateholder reasonably believes that
the
Trust is insolvent. This paragraph shall survive for one year following
termination of this Trust Agreement.
Section
4.09. Restrictions
on Certificateholders' Power.
The
Certificateholders shall not direct the Owner Trustee to take or to refrain
from
taking any action if such action or inaction would be contrary to any obligation
of the Trust or the Owner Trustee under this Trust Agreement or any of the
Basic
Documents or would be contrary to Section 2.03, nor shall the Owner Trustee
be
obligated to follow any such direction, if given.
Section
4.10. Majority
Control.
Except
as expressly provided herein, any action that may be taken by the
Certificateholders under this Trust Agreement may be taken by the Holders of
Certificates evidencing not less than a majority Percentage Interest of the
Certificates. Except as expressly provided herein, any written notice of the
Certificateholders delivered pursuant to this Trust Agreement shall be effective
if signed by Holders of Certificates evidencing not less than a majority
Percentage Interest of the Certificates at the time of the delivery of such
notice.
ARTICLE
V
Application
of Trust Funds
Section
5.01. Distributions.
(a)
On each
Payment Date, the Certificate Paying Agent shall distribute to the
Certificateholders, all funds remaining on deposit in the Certificate
Distribution Account and available therefor (as provided in Section 3.05 of
the
Indenture) for such Payment Date after payment of any amount owing to the Owner
Trustee hereunder and any Expenses of the Trust remaining unpaid in the
following order of priority:
(i) first,
to
the Class XS Certificates, on a pro
rata
basis
based on the aggregate notional principal amount of the Class XS Certificates
held by each Holder of the Class XS Certificates, the Class XS Certificate
Distribution Amount; and
(ii) second,
to the Class C Certificates, on a pro
rata
basis
based on the aggregate principal amount of Class C Certificates held by each
Holder of the Class C Certificates, the Class C Certificate Distribution Amount;
and
(iii) third,
to
the Class R Certificates, any remaining funds on deposit in the Certificate
Distribution Account.
(b) In
the
event that any withholding tax is imposed on the distributions (or allocations
of income) to a Certificateholder, such tax shall reduce the amount otherwise
distributable to the Certificateholder in accordance with this Section 5.01.
The
Certificate Paying Agent is hereby authorized and directed to retain or cause
to
be retained from amounts otherwise distributable to the Certificateholders
sufficient funds for the payment of any tax that is legally owed by the Trust
(but such authorization shall not prevent the Owner Trustee from contesting
any
such tax in appropriate proceedings, and withholding payment of such tax, if
permitted by law, pending the outcome of such proceedings). The amount of any
withholding tax imposed with respect to a Certificateholder shall be treated
as
cash distributed to such Certificateholder at the time it is withheld by the
Certificate Paying Agent and remitted to the appropriate taxing authority.
If
there is a possibility that withholding tax is payable with respect to a
distribution (such as a distribution to a non-U.S. Certificateholder), the
Certificate Paying Agent may in its sole discretion withhold such amounts in
accordance with this paragraph (b).
(c) Distributions
to Certificateholders shall be subordinated to the creditors of the Trust,
including the Noteholders.
Section
5.02. Method
of Payment.
Subject
to Section 8.01(c), distributions required to be made to Certificateholders
on
any Payment Date as provided in Section 5.01 shall be made to each
Certificateholder of record on the preceding Record Date by wire transfer,
in
immediately available funds, to the account of such Holder at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided to the Certificate Registrar appropriate written instructions
at
least five Business Days prior to such Payment Date or, if not, by check mailed
to such Certificateholder at the address of such Holder appearing in the
Certificate Register.
Section
5.03. Tax
Returns.
Pursuant to the Indenture, the Indenture Trustee has agreed that it shall (a)
maintain (or cause to be maintained) the books of the Trust on a calendar year
basis using the accrual method of accounting, (b) deliver (or cause to be
delivered) upon written request therefor to each Noteholder and
Certificateholder as may be required by the Code under
Sections 1461 and 6049
and
applicable Treasury Regulations, such information as may be required to enable
each Certificateholder to prepare its federal and state income tax returns,
(c)
prepare and file or cause to be prepared and filed such tax returns relating
to
the Trust as may be required by the Code under Sections 6012 or 6031 and
applicable Treasury Regulations (making such elections as may from time to
time
be required or appropriate under any applicable state or federal statutes,
rules
or regulations); provided, however, that a copy of any such tax return shall
be
delivered to the Sponsor at least 5 Business Days prior to filing; and (d)
collect or cause to be collected any withholding tax as described in and in
accordance with Section 5.01 of this Trust Agreement with respect to income
or
distributions to Certificateholders and prepare or cause to be prepared the
appropriate forms relating thereto; provided, however, that the Indenture
Trustee shall not be required to compute the Issuer's gross income except to
the
extent it can do so without unreasonable effort or expense based upon income
statements furnished to it and provided, further, that the Indenture Trustee
shall not be required to prepare and file partnership tax returns on behalf
of
the Issuer unless the Indenture Trustee receives an opinion of counsel
reasonably satisfactory to it (which shall not be at the Indenture Trustee's
expense, but shall be at the expense of the Depositor or other party furnishing
such opinion) as to the necessity of such filings. The Owner Trustee shall
sign
all tax and information returns prepared or caused to be prepared by the
Indenture Trustee pursuant to this Section 5.03 at the request of the Indenture
Trustee, and in doing so shall rely entirely upon, and shall have no liability
for information or calculations provided by, the Indenture Trustee.
Section
5.04. Statements
to Certificateholders.
On each
Payment Date, the Certificate Paying Agent shall make available to each
Certificateholder the statement or statements provided to the Owner Trustee
and
the Certificate Paying Agent by the Indenture Trustee pursuant to Section 7.05
of the Indenture with respect to such Payment Date; provided, however, that
in
the event that any monthly statement is no longer available, at the request
of
any Certificateholder, the Indenture Trustee will deliver such monthly statement
to such Certificateholder.
ARTICLE
VI
Concerning
the Owner Trustee
Section
6.01. Acceptance
of Trusts and Duties.
The
Owner Trustee accepts the trusts hereby created and agrees to perform its duties
hereunder with respect to such trusts but only upon the terms of this Trust
Agreement. The Owner Trustee and the Certificate Paying Agent also agree to
disburse all moneys actually received by it constituting part of the Owner
Trust
Estate upon the terms of the Basic Documents and this Trust Agreement. The
Owner
Trustee shall not be answerable or accountable hereunder or under any Basic
Document under any circumstances, except (i) for its own willful misconduct,
gross negligence or bad faith or grossly negligent failure to act or (ii) in
the
case of the inaccuracy of any representation or warranty contained in Section
6.03 expressly made by the Bank. In particular, but not by way of limitation
(and subject to the exceptions set forth in the preceding
sentence):
(a) The
Owner
Trustee shall not be liable with respect to any action taken or omitted to
be
taken by it in accordance with the instructions of the Certificateholders
permitted under this Trust Agreement;
(b) No
provision of this Trust Agreement or any Basic Document shall require the Owner
Trustee to expend or risk funds or otherwise incur any financial liability
in
the performance of any of its rights, duties or powers hereunder or under any
Basic Document if the Owner Trustee shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured or provided to it;
(c) Under
no
circumstances shall the Owner Trustee be liable for indebtedness evidenced
by or
arising under any of the Basic Documents, including the principal of and
interest on the Notes;
(d) The
Owner
Trustee shall not be responsible for or in respect of the validity or
sufficiency of this Trust Agreement or for the due execution hereof by the
Depositor or for the form, character, genuineness, sufficiency, value or
validity of any of the Owner Trust Estate, or for or in respect of the validity
or sufficiency of the Basic Documents, the Notes, the Certificates, other than
the certificate of authentication on the Certificates, if executed and
authenticated by the Owner Trustee and the Owner Trustee shall in no event
assume or incur any liability, duty, or obligation to any Noteholder or to
any
Certificateholder, other than as expressly provided for herein or expressly
agreed to in the Basic Documents;
(e) The
Owner
Trustee shall not be liable for the default or misconduct of the Depositor,
Indenture Trustee, Certificate Registrar or the Servicer under any of the Basic
Documents or otherwise and the Owner Trustee shall have no obligation or
liability to perform the obligations of the Trust under this Trust Agreement
or
the Basic Documents that are required to be performed by the Indenture Trustee
under the Indenture, the Servicer under the Sale and Servicing Agreement or
the
Seller under the Assignment Agreement.
(f) The
Owner
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it or duties imposed by this Trust Agreement, or to institute, conduct
or defend any litigation under this Trust Agreement or otherwise or in relation
to this Trust Agreement or any Basic Document, at the request, order or
direction of any of the Certificateholders, unless such Certificateholders
have
offered to the Owner Trustee security or indemnity satisfactory to it against
the costs, expenses and liabilities that may be incurred by the Owner Trustee
therein or thereby. The right of the Owner Trustee to perform any discretionary
act enumerated in this Trust Agreement or in any Basic Document shall not be
construed as a duty, and the Owner Trustee shall not be answerable for other
than its gross negligence or willful misconduct in the performance of any such
act.
Section
6.02. Furnishing
of Documents.
The
Owner Trustee shall furnish to the Noteholders, Beneficial Owners and
Certificateholders promptly upon receipt of a written reasonable request
therefor, duplicates or copies of all reports, notices, requests, demands,
certificates, financial statements and any other instruments furnished to the
Owner Trustee under the Basic Documents.
Section
6.03. Representations
and Warranties.
The
Bank hereby represents and warrants to the Depositor, for the benefit of the
Certificateholders, that:
(a) It
is a
banking corporation duly organized and validly existing in good standing under
the laws of the State of Delaware. It has all requisite corporate power and
authority to execute, deliver and perform its obligations under this Trust
Agreement;
(b) It
has
taken all corporate action necessary to authorize the execution and delivery
by
it of this Trust Agreement, and this Trust Agreement will be executed and
delivered by one of its officers who is duly authorized to execute and deliver
this Trust Agreement on its behalf;
(c) Neither
the execution nor the delivery by it of this Trust Agreement, nor the
consummation by it of the transactions contemplated hereby nor compliance by
it
with any of the terms or provisions hereof will contravene any federal or
Delaware law, governmental rule or regulation governing the banking or trust
powers of the Owner Trustee or any judgment or order binding on it, or
constitute any default under its charter documents or bylaws or any indenture,
mortgage, contract, agreement or instrument to which it is a party or by which
any of its properties may be bound;
(d) This
Trust Agreement assuming due authorization, execution and delivery by the Owner
Trustee and the Depositor, constitutes a valid, legal and binding obligation
of
the Owner Trustee, enforceable against it in accordance with the terms hereof
subject to applicable bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the enforcement of creditors' rights generally and to
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law;
(e) The
execution, delivery, authentication and performance by it of this Trust
Agreement will not require the authorization, consent or approval of, the giving
of notice to, the filing or registration with, or the taking of any other action
with respect to, any governmental authority or agency;
(f) The
Bank
is not in default with respect to any order or decree of any court or any order,
regulation or demand of any Federal, state, municipal or governmental agency,
which default might have consequences that would materially and adversely affect
the condition (financial or other) or operations of the Bank or its properties
or might have consequences that would materially adversely affect its
performance hereunder; and
(g) No
litigation is pending or, to the best of the Bank's knowledge, threatened
against the Bank which would prohibit its entering into this Trust Agreement
or
performing its obligations under this Trust Agreement.
Section
6.04. Reliance;
Advice of Counsel.
(a)
The
Owner Trustee shall incur no liability to anyone in acting upon any signature,
instrument, notice, resolution, request, consent, order, certificate, report,
opinion, note, or other document or paper believed by it to be genuine and
believed by it to be signed by the proper party or parties. The Owner Trustee
may accept a certified copy of a resolution of the board of directors or other
governing body of any corporate party as conclusive evidence that such
resolution has been duly adopted by such body and that the same is in full
force
and effect. As to any fact or matter the method of determination of which is
not
specifically prescribed herein, the Owner Trustee may for all purposes hereof
rely on a certificate, signed by the president or any vice president or by
the
treasurer or other authorized officers of the relevant party, as to such fact or
matter and such certificate shall constitute full protection to the Owner
Trustee for any action taken or omitted to be taken by it in good faith in
reliance thereon.
(b) In
the
exercise or administration of the Trust hereunder and in the performance of
its
duties and obligations under this Trust Agreement or the Basic Documents, the
Owner Trustee (i) may act directly or through its agents, attorneys, custodians
or nominees (including persons acting under a power of attorney) pursuant to
agreements entered into with any of them, and the Owner Trustee shall not be
liable for the conduct or misconduct of such agents, attorneys, custodians
or
nominees (including persons acting under a power of attorney) if such persons
have been selected by the Owner Trustee with reasonable care, and (ii) may
consult with counsel, accountants and other skilled persons to be selected
with
reasonable care and employed by it. The Owner Trustee shall not be liable for
anything done, suffered or omitted in good faith by it in accordance with the
opinion or advice of any such counsel, accountants or other such Persons and
not
contrary to this Trust Agreement or any Basic Document.
Section
6.05. Not
Acting in Individual Capacity.
Except
as provided in this Article VI, in accepting the trusts hereby created
Wilmington Trust Company acts solely as Owner Trustee hereunder and not in
its
individual capacity, and all Persons having any claim against the Owner Trustee
by reason of the transactions contemplated by this Trust Agreement or any Basic
Document shall look only to the Owner Trust Estate for payment or satisfaction
thereof.
Section
6.06. Owner
Trustee Not Liable for Certificates or Related Documents.
The
recitals contained herein and in the Certificates (other than the signatures
of
the Owner Trustee on the Certificates) shall be taken as the statements of
the
Depositor, and the Owner Trustee assumes no responsibility for the correctness
thereof. The Owner Trustee makes no representations as to the validity or
sufficiency of this Trust Agreement, of any Basic Document or of the
Certificates (other than the signatures of the Owner Trustee on the
Certificates) or the Notes, or of any Related Documents. The Owner Trustee
shall
at no time have any responsibility or liability with respect to the sufficiency
of the Owner Trust Estate or its ability to generate the payments to be
distributed to Certificateholders under this Trust Agreement or the Noteholders
under the Indenture, including compliance by the Depositor or the Seller with
any warranty or representation made under any Basic Document or in any related
document or the accuracy of any such warranty or representation, or any action
of the Certificate Paying Agent, the Certificate Registrar or the Indenture
Trustee taken in the name of the Owner Trustee.
Section
6.07. Owner
Trustee May Own Certificates and Notes.
The
Owner Trustee in its individual or any other capacity may, subject to Section
3.05, become the owner or pledgee of Certificates or Notes and may deal with
the
Depositor, the Seller, the Certificate Paying Agent, the Certificate Registrar
and the Indenture Trustee in transactions with the same rights as it would
have
if it were not Owner Trustee.
Section
6.08. Payments
from Owner Trust Estate.
All
payments to be made by the Owner Trustee under this Trust Agreement or any
of
the Basic Documents to which the Owner Trustee is a party shall be made only
from the income and proceeds of the Owner Trust Estate or from other amounts
required to be provided by the Certificateholders and only to the extent that
the Owner Trust shall have received income or proceeds from the Owner Trust
Estate or the Certificateholders to make such payments in accordance with the
terms hereof. Wilmington Trust Company, in its individual capacity, shall not
be
liable for any amounts payable under this Trust Agreement or any of the Basic
Documents to which the Owner Trustee is a party.
Section
6.09. Doing
Business in Other Jurisdictions.
Notwithstanding anything contained herein to the contrary, neither Wilmington
Trust Company nor the Owner Trustee shall be required to take any action in
any
jurisdiction other than in the State of Delaware if the taking of such action
will, even after the appointment of a co-trustee or separate trustee in
accordance with Section 9.05 hereof, (i) require the consent or approval or
authorization or order of or the giving of notice to, or the registration with
or the taking of any other action in respect of, any state or other governmental
authority or agency of any jurisdiction other than the State of Delaware; (ii)
result in any fee, tax or other governmental charge under the laws of the State
of Delaware becoming payable by Wilmington Trust Company; or (iii) subject
Wilmington Trust Company to personal jurisdiction in any jurisdiction other
than
the State of Delaware for causes of action arising from acts unrelated to the
consummation of the transactions by Wilmington Trust Company or the Owner
Trustee, as the case may be, contemplated hereby.
Section
6.10. Liability
of Certificate Registrar and Certificate Paying Agent.
All
provisions affording protection or rights to or limiting the liability of the
Owner Trustee, including the provisions of this Agreement permitting the Owner
Trustee to resign, merge or consolidate, shall inure as well to the Certificate
Registrar and Certificate Paying Agent. In addition, JPMorgan Chase Bank, N.A.,
in its capacities as Certificate Registrar and Certificate Paying Agent
hereunder shall be afforded all the rights, protections, immunities and
indemnities afforded to it in its capacity as Indenture Trustee under the
Indenture as if specifically set forth herein.
ARTICLE
VII
Compensation
of Owner Trustee
Section
7.01. Owner
Trustee Fees and Expenses.
The
Owner Trustee shall receive as compensation for its services hereunder the
Owner
Trustee Fee (beginning on the Closing Date in accordance with the definition
of
the Owner Trustee Fee), and the Owner Trustee shall be reimbursed pursuant
to
Section 6.07 of the Indenture for its reasonable expenses hereunder and under
the Basic Documents, including the reasonable compensation, expenses and
disbursements of such agents, representatives, experts and counsel as the Owner
Trustee may reasonably employ in connection with the exercise and performance
of
its rights and its duties hereunder and under the Basic Documents. Any amounts
owing to the Owner Trustee hereunder in excess of such amounts shall be paid
pursuant to a separate side agreement or as provided in Section 5.01
hereof.
Section
7.02. Indemnification.
The
Sponsor shall indemnify, defend and hold harmless the Owner Trustee, the
Certificate Registrar and the Certificate Paying Agent, solely in its capacity
as Certificate Paying Agent, and their respective successors, assigns, agents
and servants (collectively, the “Indemnified Parties”) from and against, any and
all liabilities, obligations, losses, damages, taxes, claims, actions and suits,
and any and all reasonable costs, expenses and disbursements (including
reasonable legal fees and expenses) of any kind and nature whatsoever
(collectively, “Expenses”) which may at any time be imposed on, incurred by, or
asserted against any Indemnified Party in any way relating to or arising out
of
this Trust Agreement, the Basic Documents, the Owner Trust Estate, the
administration of the Owner Trust Estate or the action or inaction of the Owner
Trustee, the Certificate Registrar and the Certificate Paying Agent, solely
in
its capacity as Certificate Paying Agent, hereunder, provided,
that:
(i) the
Sponsor shall not be liable for or required to indemnify an Indemnified Party
from and against Expenses arising or resulting from the Owner Trustee's, the
Certificate Registrar's or the Certificate Paying Agent's willful misconduct,
gross negligence or bad faith or as a result of any inaccuracy of a
representation or warranty of the Owner Trustee contained in Section 6.03
expressly made by the Owner Trustee;
(ii) with
respect to any such claim, the Indemnified Party shall have given the Sponsor
written notice thereof promptly after the Indemnified Party shall have actual
knowledge thereof; provided that failure to deliver such notice shall not affect
an Indemnified Party’s right to indemnification hereunder,
(iii) while
maintaining control over its own defense, the Sponsor shall consult with the
Indemnified Party in preparing such defense; and
(iv) notwithstanding
anything in this Agreement to the contrary, the Sponsor shall not be liable
for
settlement of any claim by an Indemnified Party entered into without the prior
consent of the Sponsor which consent shall not be unreasonably
withheld.
The
indemnities contained in this Section shall survive the resignation or
termination of the Owner Trustee, the Certificate Registrar or the Certificate
Paying Agent or the termination of this Trust Agreement. In the event of any
claim, action or proceeding for which indemnity will be sought pursuant to
this
Section 7.02, the Owner Trustee's, the Certificate Registrar's or the
Certificate Paying Agent's choice of legal counsel, if other than the legal
counsel retained by the Owner Trustee, the Certificate Registrar or the
Certificate Paying Agent in connection with the execution and delivery of this
Trust Agreement, shall be subject to the approval of the Sponsor, which approval
shall not be unreasonably withheld. In addition, upon written notice to the
Owner Trustee, the Certificate Registrar or the Certificate Paying Agent and
with the consent of the Owner Trustee, the Certificate Registrar or the
Certificate Paying Agent, as applicable, which consent shall not be unreasonably
withheld, the Sponsor has the right to assume the defense of any claim, action
or proceeding against the Owner Trustee, the Certificate Registrar or the
Certificate Paying Agent, with counsel reasonably satisfactory to the Owner
Trustee, the Certificate Registrar or the Certificate Paying Agent, as
applicable.
ARTICLE
VIII
Termination
of Trust Agreement
Section
8.01. Termination
of Trust Agreement.
(a)
This
Trust Agreement (other than Article VII) and the Trust shall terminate and
be of
no further force or effect upon the earliest of (i) the final distribution
of
all moneys or other property or proceeds of the Owner Trust Estate in accordance
with the terms of the Indenture and this Trust Agreement, (ii) the distribution
of all of the assets of the Owner Trust Estate, in accordance with written
instructions provided to the Owner Trustee by the Majority Certificateholder,
following the optional redemption of the Notes by the Issuer pursuant to Section
8.07 of the Indenture; provided in each case that all amounts owing to the
Noteholders to the extent payable from the Owner Trust Estate or proceeds
thereof have been paid in full and that all obligations under the Indenture
have
been discharged. The bankruptcy, liquidation, dissolution, death or incapacity
of any Certificateholder shall not (x) operate to terminate this Trust Agreement
or the Trust or (y) 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 all or any part of the Trust or the Owner
Trust
Estate or (z) otherwise affect the rights, obligations and liabilities of the
parties hereto.
(b) Except
as
provided in Section 8.01(a), neither the Depositor nor any Certificateholder
shall be entitled to revoke or terminate the Trust.
(c) Notice
of
any termination of the Trust, specifying the Payment Date upon which
Certificateholders shall surrender their Certificates to the Certificate Paying
Agent for payment of the final distribution and cancellation, shall be given
by
the Certificate Paying Agent by letter to Certificateholders mailed within
five
Business Days of receipt of notice of the final payment on the Notes from the
Indenture Trustee, stating (i) the Payment Date upon or with respect to which
final payment of the Certificates shall be made upon presentation and surrender
of the Certificates at the office of the Certificate Paying Agent therein
designated, (ii) the amount of any such final payment and (iii) that the Record
Date otherwise applicable to such Payment Date is not applicable, payments
being
made only upon presentation and surrender of the Certificates at the office
of
the Certificate Payment Agent therein specified. The Certificate Paying Agent
shall give such notice to the Owner Trustee and the Certificate Registrar at
the
time such notice is given to Certificateholders. Upon presentation and surrender
of the Certificates, the Certificate Paying Agent shall cause to be distributed
to Certificateholders amounts distributable on such Payment Date pursuant to
Section 5.01.
In
the
event that all of the Certificateholders shall not surrender their Certificates
for cancellation within six months after the date specified in the above
mentioned written notice, the Certificate Paying Agent shall give a second
written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. Subject to applicable laws with respect to escheat of funds, if within
one year following the Payment Date on which final payment of the Certificates
was to have been made pursuant to Section 3.03 of the Indenture, all the
Certificates shall not have been surrendered for cancellation, the Certificate
Paying Agent may take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Certificates, and the cost thereof shall be paid out of
the
funds and other assets that shall remain subject to this Trust Agreement. Any
funds remaining in the Certificate Distribution Account after exhaustion of
such
remedies shall be distributed by the Certificate Paying Agent to the
Depositor.
(d) Upon
the
winding up of the Trust and its termination, and notice thereof by the Majority
Certificateholder, the Owner Trustee shall cause the Certificate of Trust to
be
cancelled by filing a certificate of cancellation with the Secretary of State
in
accordance with the provisions of Section 3810(c) of the Statutory Trust
Statute.
ARTICLE
IX
Successor Owner Trustees and Additional Owner Trustees
Section
9.01. Eligibility
Requirements for Owner Trustee.
The
Owner Trustee shall at all times be a corporation satisfying the provisions
of
Section 3807(a) of the Statutory Trust Statute; authorized 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 authorities; and
having (or having a parent that has) a rating of at least Baa3 by Moody's or
is
otherwise acceptable to the Rating Agencies. If such corporation shall publish
reports of condition at least annually pursuant to law or to the requirements
of
the aforesaid supervising or examining authority, then for the purpose of this
Section, the combined capital and surplus of such corporation shall be deemed
to
be its combined capital and surplus as set forth in its most recent report
of
condition so published. In case at any time the Owner Trustee shall cease to
be
eligible in accordance with the provisions of this Section 9.01, the Owner
Trustee shall resign immediately in the manner and with the effect specified
in
Section 9.02.
Section
9.02. Replacement
of Owner Trustee.
The
Owner Trustee may at any time resign and be discharged from the trusts hereby
created by giving 30 days prior written notice thereof to the Depositor and
the
Majority Certificateholder. Upon receiving such notice of resignation, the
Majority Certificateholder shall promptly appoint a successor Owner Trustee
by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning Owner Trustee and to the successor Owner Trustee.
If
no successor Owner Trustee shall have been so appointed and have accepted
appointment within 30 days after the giving of such notice of resignation,
the
resigning Owner Trustee may petition any court of competent jurisdiction for
the
appointment of a successor Owner Trustee.
The
Majority Certificateholder may at any time remove the Owner Trustee and appoint
a successor Owner Trustee meeting the requirements of Section 9.01 by written
instrument, in duplicate, one copy of which instrument shall be delivered to
the
resigning Owner Trustee and to the successor Owner Trustee and the Indenture
Trustee.
If
at any
time the Owner Trustee shall cease to be eligible in accordance with the
provisions of Section 9.01 and shall fail to resign after written request
therefor by the Majority Certificateholder, or if at any time the Owner Trustee
shall be legally unable to act, or shall be adjudged bankrupt or insolvent,
or a
receiver of the Owner Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Owner Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Majority Certificateholder may remove the Owner
Trustee.
Any
resignation or removal of the Owner Trustee and appointment of a successor
Owner
Trustee pursuant to any of the provisions of this Section shall not become
effective until acceptance of appointment by the successor Owner Trustee
pursuant to Section 9.03 and payment of all fees and expenses owed to the
outgoing Owner Trustee. The Servicer shall provide notice of such resignation
or
removal of the Owner Trustee to each of the Rating Agencies.
Section
9.03. Successor
Owner Trustee.
Any
successor Owner Trustee appointed pursuant to Section 9.02 shall execute,
acknowledge and deliver to the Indenture Trustee and to its predecessor Owner
Trustee an instrument accepting such appointment under this Trust Agreement,
and
thereupon the resignation or removal of the predecessor Owner Trustee shall
become effective, and such successor Owner Trustee, without any further act,
deed or conveyance, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor under this Trust Agreement, with
like
effect as if originally named as Owner Trustee. The predecessor Owner Trustee
shall upon payment of its fees and expenses deliver to the successor Owner
Trustee all documents and statements and monies held by it under this Trust
Agreement; and the predecessor Owner 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 Owner Trustee all such rights,
powers, duties and obligations.
No
successor Owner Trustee shall accept appointment as provided in this Section
9.03 unless at the time of such acceptance such successor Owner Trustee shall
be
eligible pursuant to Section 9.01.
Upon
acceptance of appointment by a successor Owner Trustee pursuant to this Section
9.03, the Owner Trustee shall mail notice thereof to all Certificateholders,
the
Indenture Trustee, the Noteholders and the Rating Agencies.
Section
9.04. Merger
or Consolidation of Owner Trustee.
Any
Person into which the Owner Trustee may be merged or converted or with which
it
may be consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any Person
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder, without
the execution or filing of any instrument or any further act on the part of
any
of the parties hereto, anything herein to the contrary notwithstanding;
provided, that such Person shall be eligible pursuant to Section 9.01 and,
provided, further, that the Owner Trustee shall mail notice of such merger
or
consolidation to the Rating Agencies.
Section
9.05. Appointment
of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Trust Agreement, at any time,
for
the purpose of meeting any legal requirements of any jurisdiction in which
any
part of the Owner Trust Estate may at the time be located, the Owner Trustee
shall have the power and shall execute and deliver all instruments to appoint
one or more Persons to act as co-trustee, jointly with the Owner Trustee, or
as
separate trustee or trustees, of all or any part of the Owner Trust Estate,
and
to vest in such Person, in such capacity, such title to the Trust or any part
thereof and, subject to the other provisions of this Section, such powers,
duties, obligations, rights and trusts as the Owner Trustee may consider
necessary or desirable. No co-trustee or separate trustee under this Trust
Agreement shall be required to meet the terms of eligibility as a successor
Owner Trustee pursuant to Section 9.01 and no notice of the appointment of
any
co-trustee or separate trustee shall be required pursuant to Section
9.03.
Each
separate trustee and co-trustee shall, to the extent permitted by law, be
appointed and act subject to the following provisions and
conditions:
(a) All
rights, powers, duties and obligations conferred or imposed upon the Owner
Trustee shall be conferred upon and exercised or performed by the Owner 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
Owner 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, the
Owner 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 Owner Trust Estate 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 Owner Trustee;
(b) No
trustee under this Trust Agreement shall be personally liable by reason of
any
act or omission of any other trustee under this Trust Agreement;
and
(c) The
Owner
Trustee may at any time accept the resignation of or remove any separate trustee
or co-trustee.
Any
notice, request or other writing given to the Owner 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 Trust Agreement and the
conditions of this Article. 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 Owner
Trustee or separately, as may be provided therein, subject to all the provisions
of this Trust Agreement, specifically including every provision of this Trust
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Owner Trustee. Each such instrument shall be filed with
the
Owner Trustee.
Any
separate trustee or co-trustee may at any time appoint the Owner Trustee as
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 Trust
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
Owner Trustee, to the extent permitted by law, without the appointment of a
new
or successor co-trustee or separate trustee.
ARTICLE
X
Miscellaneous
Section
10.01. Amendments.
(a)
This
Trust Agreement may be amended from time to time by the parties hereto as
specified in this Section, provided that any amendment, except as provided
in
subparagraph (e) below, be accompanied by (a) an Opinion of Counsel addressed
to
the Owner Trustee, the Certificate Registrar and the Certificate Paying Agent
and obtained by the Servicer to the effect that such amendment (i) complies
with
the provisions of this Section and (ii) if NIC OTC LLC is not the Majority
Certificateholder, would not cause the Trust to be subject to an entity level
tax for federal income tax purposes and (b) an Officer’s Certificate of the
Sponsor that such amendment shall not cause the Trust to fail to qualify as
a
“qualified special purpose entity” under Financial Accounting Standard
140.
(b) If
the
purpose of the amendment (as detailed therein) is to correct any mistake,
eliminate any inconsistency, cure any ambiguity or deal with any matter not
covered (i.e. to give effect to the intent of the parties and, if applicable,
to
the expectations of the Holders), it shall not be necessary to obtain the
consent of any Holders, but the Owner Trustee, the Certificate Registrar and
the
Certificate Paying Agent shall be furnished with (A) a letter from the Rating
Agencies that the amendment will not result in the downgrading or withdrawal
of
the rating then assigned to any Note or the rating then assigned to any Note
or
(B) an Opinion of Counsel obtained by the Servicer to the effect that such
action will not adversely affect in any material respect the interests of any
Holders.
(c) If
the
purpose of the amendment is to prevent the imposition of any federal or state
taxes at any time that any Security is outstanding, it shall not be necessary
to
obtain the consent of any Holder, but the Owner Trustee, the Certificate
Registrar and the Certificate Paying Agent shall be furnished with an Opinion
of
Counsel obtained by the Servicer that such amendment is necessary or helpful
to
prevent the imposition of such taxes and is not materially adverse to any
Holder.
(d) If
the
purpose of the amendment is to add or eliminate or change any provision of
the
Trust Agreement other than as contemplated in (b) and (c) above, the amendment
shall require (A) an Opinion of Counsel obtained by the Servicer to the effect
that such action will not adversely affect in any material respect the interests
of any Holders of the Notes and Certificates and (B) either (a) a letter from
the Rating Agency that the amendment will not result in the downgrading or
withdrawal of the rating then assigned to any Note or the rating then assigned
to any Note or (b) the consent of Holders of Certificates evidencing a majority
Percentage Interest of the Certificates and the Indenture Trustee; provided,
however, that no such amendment shall (i) reduce in any manner the amount of,
or
delay the timing of, payments received that are required to be distributed
on
any Certificate without the consent of the related Certificateholder, or (ii)
reduce the aforesaid percentage of Certificates the Holders of which are
required to consent to any such amendment, without the consent of the Holders
of
all such Certificates then outstanding.
(e) If
the
purpose of the amendment is to provide for the holding of any of the
Certificates in book-entry form, it shall require the consent of Holders of
all
such Certificates then outstanding; provided, that the Opinion of Counsel
specified in subparagraph (a) above shall not be required.
(f) If
the
purpose of the amendment is to provide for the issuance of additional
certificates representing an interest in the Trust, it shall not be necessary
to
obtain the consent of any Holder, but the Owner Trustee and the Indenture
Trustee shall be furnished with (A) an Opinion of Counsel obtained by the
Servicer to the effect that such action will not adversely affect in any
material respect the interests of any Holders, (B) an Opinion of Counsel
obtained by the Servicer to the effect that such action will not cause the
Trust
to be (i) treated as an association taxable as a corporation for federal income
tax and relevant state income and franchise tax purposes or (ii) taxable as
a
“publicly traded partnership” as defined in Treasury Regulation section 1.7704-1
for federal income tax purposes and relevant state franchise or income tax
purposes and (C) a letter from the Rating Agencies that the amendment will
not
result in the downgrading or withdrawal of the rating then assigned to any
Notes
or the rating then assigned to the Notes.
(g) Promptly
after the execution of any such amendment or consent, the Servicer shall furnish
written notification of the substance of such amendment or consent to each
Certificateholder, the Indenture Trustee and each of the Rating Agencies. It
shall not be necessary for the consent of Certificateholders or the Indenture
Trustee pursuant to this Section 10.01 to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof. The manner of obtaining such consents (and any
other consents of Certificateholders provided for in this Trust Agreement or
in
any other Basic Document) and of evidencing the authorization of the execution
thereof by Certificateholders shall be subject to such reasonable requirements
as the Owner Trustee may prescribe.
(h) In
connection with the execution of any amendment to any agreement to which the
Trust is a party, other than this Trust Agreement, the Owner Trustee shall
be
entitled to receive and conclusively rely upon an Opinion of Counsel to the
effect that such amendment is authorized or permitted by the documents subject
to such amendment and that all conditions precedent in the Basic Documents
for
the execution and delivery thereof by the Trust or the Owner Trustee, as the
case may be, have been satisfied.
(i) No
amendment or agreement affecting the rights or duties of the Owner Trustee,
the
Certificate Registrar or the Certificate Paying Agent may be entered into
without the consent of the affected party.
Promptly
after the execution of any amendment to the Certificate of Trust, the Owner
Trustee shall cause the filing of such amendment with the Secretary of State
of
the State of Delaware.
Section
10.02. No
Legal Title to Owner Trust Estate.
The
Certificateholders shall not have legal title to any part of the Owner Trust
Estate solely by virtue of their status as a Certificateholder. The
Certificateholders shall be entitled to receive distributions with respect
to
their undivided beneficial interest therein only in accordance with Articles
V
and VIII. No transfer, by operation of law or otherwise, of any right, title
or
interest of the Certificateholders to and in their ownership interest in the
Owner Trust Estate shall operate to terminate this Trust Agreement or the trusts
hereunder or entitle any transferee to an accounting or to the transfer to
it of
legal title to any part of the Owner Trust Estate.
Section
10.03. Limitations
on Rights of Others.
Except
for Section 2.07, the provisions of this Trust Agreement are solely for the
benefit of the Owner Trustee, the Depositor, the Certificateholders and, to
the
extent expressly provided herein, the Indenture Trustee and the Noteholders,
and
nothing in this Trust Agreement (other than Section 2.07), whether express
or
implied, shall be construed to give to any other Person any legal or equitable
right, remedy or claim in the Owner Trust Estate or under or in respect of
this
Trust Agreement or any covenants, conditions or provisions contained
herein.
Section
10.04. Notices.
(a)
Unless
otherwise expressly specified or permitted by the terms hereof, all notices
shall be in writing and shall be deemed given upon receipt, to the Owner Trustee
at: Wilmington Trust Company, ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇; Attention: Corporate Trust Administration; to the
Depositor at: Financial Asset Securities Corp., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Legal, with a copy to Newcastle Investment Corp.,
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇;
to
the Indenture Trustee, the Certificate Registrar and the Certificate Paying
Agent at the Corporate Trust Office of the Indenture Trustee; to ▇▇▇▇▇'▇ at:
▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; Attention: Residential Mortgage
Monitoring Unit; to S&P at: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; and
to Fitch at: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; or, as to each
party, at such other address as shall be designated by such party in a written
notice to each other party.
(b) Any
notice required or permitted to be given to a Certificateholder shall be given
by first-class mail, postage prepaid, at the address of such Holder as shown
in
the Certificate Register. Any notice so mailed within the time prescribed in
this Trust Agreement shall be conclusively presumed to have been duly given,
whether or not the Certificateholder receives such notice.
(c) A
copy of
any notice delivered to the Owner Trustee or the Trust shall also be delivered
to the Depositor.
Section
10.05. Severability.
Any
provision of this Trust Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in
any
other jurisdiction.
Section
10.06. Separate
Counterparts.
This
Trust Agreement may be executed by the parties hereto in separate counterparts,
each of which when so executed and delivered shall be an original, but all
such
counterparts shall together constitute but one and the same
instrument.
Section
10.07. Successors
and Assigns.
All
representations, warranties, covenants and agreements contained herein shall
be
binding upon, and inure to the benefit of, each of the Depositor, the Owner
Trustee and its successors, and each Certificateholder and its successors and
permitted assigns, all as herein provided. Any request, notice, direction,
consent, waiver or other instrument or action by a Certificateholder shall
bind
the successors and assigns of such Certificateholder.
Section
10.08. No
Petition.
The
Owner Trustee, by entering into this Trust Agreement and each Certificateholder,
by accepting a Certificate, hereby covenant and agree that they will not at
any
time institute against the Depositor or the Trust, or join in any institution
against the Depositor or the Trust of, any bankruptcy proceedings under any
United States federal or state bankruptcy or similar law in connection with
any
obligations to the Certificates, the Notes, this Trust Agreement or any of
the
Basic Documents. This Section shall survive for one year following the
termination of this Trust Agreement.
Section
10.09. No
Recourse.
Each
Certificateholder by accepting a Certificate acknowledges that such
Certificateholder's Certificates represent beneficial interests in the Trust
only and do not represent interests in or obligations of the Depositor, the
Seller, the Owner Trustee, the Indenture Trustee, the Certificate Registrar,
the
Certificate Paying Agent or any Affiliate thereof and no recourse may be had
against such parties or their assets, except as may be expressly set forth
or
contemplated in this Trust Agreement, the Certificates or the Basic
Documents.
Section
10.10. Headings.
The
headings of the various Articles and Sections herein are for convenience of
reference only and shall not define or limit any of the terms or provisions
hereof.
Section
10.11. GOVERNING
LAW.
THIS
TRUST AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF
DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED
IN
ACCORDANCE WITH SUCH LAWS.
Section
10.12. Integration.
This
Trust Agreement constitutes the entire agreement among the parties hereto
pertaining to the subject matter hereof and supersedes all prior agreements
and
understandings pertaining thereto.
IN
WITNESS WHEREOF, the
Depositor, the Certificate Paying Agent, the Certificate Registrar and the
Owner
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/
▇▇▇▇▇▇▇ ▇▇▇
|
|||||||||||||
|
Name:
|
▇▇▇▇▇▇▇
▇▇▇
|
|||||||||||||
|
Title:
|
Vice
President
|
|||||||||||||
|
WILMINGTON
TRUST COMPANY, as Owner Trustee
|
||||||||||||||
|
By:
|
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|||||||||||||
|
Name:
|
▇▇▇▇▇
▇. ▇▇▇▇▇▇
|
|||||||||||||
|
Title:
|
Assistant
Vice President
|
|||||||||||||
|
JPMORGAN
CHASE BANK, N.A., as Certificate Registrar and Certificate Paying
Agent
|
||||||||||||||
|
By:
|
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
|
|||||||||||||
|
Name:
|
▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
|
|||||||||||||
|
Title:
|
Assistant
Vice President
|
|||||||||||||
|
For
purposes of Sections 7.02 and 9.02:
|
||||||||||||||
|
NEWCASTLE
INVESTMENT CORP., as Sponsor
|
||||||||||||||
|
By:
|
/s/
▇▇▇ ▇▇▇▇
|
|||||||||||||
|
Name:
|
▇▇▇
▇▇▇▇
|
|||||||||||||
|
Title:
|
President
|
|||||||||||||
EXHIBIT
A
FORM
OF TRUST CERTIFICATE
[FACE]
THIS
CERTIFICATE IS SUBORDINATE TO THE NOTES AS DESCRIBED IN THE
INDENTURE.
NO
TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE CERTIFICATE REGISTRAR
SHALL HAVE RECEIVED A CERTIFICATE OF NON-FOREIGN STATUS CERTIFYING AS TO THE
TRANSFEREE'S STATUS AS A U.S. PERSON OR CORPORATION UNDER U.S.
LAW.
NO
TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE CERTIFICATE REGISTRAR
HAS
RECEIVED PROOF OF THE TRANSFEREE'S STATUS AS A REIT, A QUALIFIED REIT SUBSIDIARY
OR
BY AN ENTITY THAT IS WHOLLY-OWNED BY A REIT OR A QUALIFIED REIT SUBSIDIARY
AND
DISREGARDED FOR FEDERAL INCOME TAX PURPOSES,
WITHIN THE MEANING OF SECTION 856(a) OR SECTION 856(i) OF THE
CODE.
THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT
OF
1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE RESOLD
OR
TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND LAWS OR IS SOLD
OR
TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM REGISTRATION UNDER SUCH ACT
AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 3.05 OF THE TRUST AGREEMENT REFERRED TO
HEREIN.
NO
TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE CERTIFICATE REGISTRAR
SHALL HAVE RECEIVED EITHER (i) A REPRESENTATION LETTER FROM THE TRANSFEREE
OF
THIS CERTIFICATE TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT
PLAN OR OTHER PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE “CODE”), OR A PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
USING THE ASSETS OF ANY SUCH PLAN, OR (ii) IF THIS CERTIFICATE IS PRESENTED
FOR
REGISTRATION IN THE NAME OF A PLAN SUBJECT TO ERISA, OR SECTION 4975 OF THE
CODE
(OR COMPARABLE PROVISIONS OF ANY SUBSEQUENT ENACTMENTS), OR A TRUSTEE OF ANY
SUCH PLAN, OR ANY OTHER PERSON WHO IS USING THE ASSETS OF ANY SUCH PLAN TO
EFFECT SUCH ACQUISITION, AN OPINION OF COUNSEL TO THE EFFECT THAT THE PURCHASE
OF 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 OWNER TRUSTEE, THE CERTIFICATE REGISTRAR
OR
THE SERVICER TO ANY OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR
LIABILITIES UNDER ERISA OR SECTION 4975 OF THE CODE) IN ADDITION TO THOSE
UNDERTAKEN IN THE TRUST AGREEMENT, WHICH OPINION OF COUNSEL SHALL NOT BE AN
EXPENSE OF THE DEPOSITOR, THE OWNER TRUSTEE, THE CERTIFICATE REGISTRAR OR THE
SERVICER.
THIS
CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF
THE
SELLER,
THE CERTIFICATE REGISTRAR, THE CERTIFICATE PAYING AGENT, THE DEPOSITOR, THE
SERVICER, THE INDENTURE TRUSTEE, OR THE OWNER TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES, EXCEPT AS EXPRESSLY PROVIDED IN THE TRUST AGREEMENT OR THE BASIC
DOCUMENTS.
|
Certificate
No.
|
Certificate
Percentage Interest of this Certificate: ______%
|
|
Cut-off
Date: March 1, 2006
|
Class:
[C][XS][R]
|
|
Date
of Amended and Restated Trust Agreement: April 6, 2006
|
First
Payment Date:
April
[25], 2006
|
|
Servicer:
Centex Home Equity Company, LLC
|
Certificate
Interest Rate: Variable
|
NEWCASTLE
MORTGAGE SECURITIES TRUST 2006-1
Evidencing
a fractional undivided beneficial interest in the Owner Trust Estate, the
property of which consists primarily of the Mortgage Loans in Newcastle Mortgage
Securities Trust 2006-1 (the “Trust”), a Delaware statutory trust formed by
Financial Asset Securities Corp., as depositor, pursuant to the Trust Agreement
referred to below.
This
certifies that ________________
is the
registered owner of the Percentage Interest represented hereby.
The
Trust
was created pursuant to a Trust Agreement, dated as of March____, 2006, between
the Depositor and Wilmington Trust Company, as owner trustee (the “Owner
Trustee”, which term includes any successor entity under the Trust Agreement)
(the “Short Form Trust Agreement”) as amended and restated by the Amended and
Restated Trust Agreement dated as of April 6, 2006 (as amended and supplemented
from time to time, together with the Short Form Trust Agreement, the “Trust
Agreement”) among the Depositor, the Owner Trustee and JPMorgan Chase Bank,
N.A., as certificate registrar and certificate paying agent, a summary of
certain of the pertinent provisions of which is set forth hereinafter. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Trust Agreement, to which Trust Agreement the Holder of this
Certificate by virtue of the acceptance hereof assents and by which such Holder
is bound.
This
Certificate is one of a duly authorized issue of Trust Certificates, Series
2006-1 (herein called the “Certificates”) issued under the Trust Agreement to
which reference is hereby made for a statement of the respective rights
thereunder of the Depositor, the Owner Trustee and the Holders of the
Certificates and the terms upon which the Certificates are executed and
delivered. All terms used in this Certificate which are defined in the Trust
Agreement shall have the meanings assigned to them in the Trust Agreement.
The
Owner Trust Estate consists of the Mortgage Loans in the Newcastle Mortgage
Securities Trust 2006-1. The rights of the Holders of the Certificates are
subordinated to the rights of the Holders of the Notes, as set forth in the
Indenture.
There
will be distributed on the 25th
day of
each month or, if such 25th
day is
not a Business Day, the next Business Day (each, a “Payment Date”), commencing
on April [25], 2006, to the Person in whose name this Certificate is registered
at the close of business on the last Business Day of the month immediately
preceding such Payment Date (the “Record Date”), such Certificateholder's
Percentage Interest in the amount to be distributed to Certificateholders on
such Payment Date.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Payment Account that have been
released from the Lien of the Indenture for payment hereunder and that neither
the Owner Trustee in its individual capacity nor the Depositor is personally
liable to the Certificateholders for any amount payable under this Certificate
or the Trust Agreement or, except as expressly provided in the Trust Agreement,
subject to any liability under the Trust Agreement.
The
Holder of this Certificate acknowledges and agrees that its rights to receive
distributions in respect of this Certificate are subordinated to the rights
of
the Noteholders as described in the Indenture, dated as of April 6, 2006,
between the Trust and JPMorgan Chase Bank, N.A., as Indenture Trustee (the
“Indenture”).
The
Depositor and each Certificateholder, by acceptance of a Certificate, agree
to
treat, and to take no action inconsistent with the treatment of, the
Certificates for federal, state and local income tax purposes as an equity
interest in the Trust.
Each
Certificateholder, by its acceptance of a Certificate, covenants and agrees
that
such Certificateholder will not at any time institute against the Depositor,
or
join in any institution against the Depositor or the Trust of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States federal or state bankruptcy or similar
law
in connection with any obligations relating to the Certificates, the Notes,
the
Trust Agreement or any of the Basic Documents.
Distributions
on this Certificate will be made as provided in the Trust Agreement by the
Certificate Paying Agent by wire transfer or check mailed to the
Certificateholder of record in the Certificate Register without the presentation
or surrender of this Certificate or the making of any notation hereon. Except
as
otherwise provided in the Trust Agreement and notwithstanding the above, the
final distribution on this Certificate will be made after due notice by the
Certificate Paying Agent of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency
maintained by the Certificate Registrar for that purpose by the Trust, as
provided in Section 3.09 of the Trust Agreement.
Notwithstanding
the above, the final distribution on this Certificate will be made after due
notice of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency specified in such
notice.
No
transfer, sale, pledge or other disposition of a Certificate shall be made
unless such transfer, sale, pledge or other disposition is exempt from the
registration requirements of the Securities Act and any applicable state
securities laws or is made in accordance with said Act and laws. In the event
of
any such transfer, the Certificate Registrar or the Depositor shall prior to
such transfer require the transferee to execute (A) either (i) (a) an investment
letter in substantially the form attached to the Trust Agreement as Exhibit
C
(or in such form and substance reasonably satisfactory to the Certificate
Registrar and the Depositor) which investment letter shall not be an expense
of
the Trust, the Owner Trustee, the Certificate Registrar, the Servicer or the
Depositor and which investment letter states that, among other things, such
transferee (1) is a “qualified institutional buyer” as defined under Rule 144A,
acting for its own account or the accounts of other “qualified institutional
buyers” as defined under Rule 144A, and (2) is aware that the proposed
transferor intends to rely on the exemption from registration requirements
under
the Securities Act of 1933, as amended, provided by Rule 144A or (ii) (a) a
written Opinion of Counsel acceptable to and in form and substance satisfactory
to the Certificate Registrar and the Depositor that such transfer may be made
pursuant to an exemption, describing the applicable exemption and the basis
therefor, from said Act and laws or is being made pursuant to said Act and
laws,
which Opinion of Counsel shall not be an expense of the Trust, the Owner
Trustee, the Certificate Registrar, the Servicer or the Depositor and (b) the
transferee executes a representation letter, substantially in the form of
Exhibit D to the Trust Agreement, and the transferor executes a representation
letter, substantially in the form of Exhibit E to the Trust Agreement, each
acceptable to and in form and substance satisfactory to the Certificate
Registrar and the Depositor certifying the facts surrounding such transfer,
which representation letters shall not be an expense of the Trust, the Owner
Trustee, the Certificate Registrar, the Servicer or the Depositor and (B) the
Certificate of Non-Foreign Status (in substantially the form attached to the
Trust Agreement as Exhibit D) acceptable to and in form and substance reasonably
satisfactory to the Certificate Registrar and the Depositor, which certificate
shall not be an expense of the Trust, the Owner Trustee, the Certificate
Registrar or the Depositor. The Holder of a Certificate desiring to effect
such
transfer shall, and does hereby agree to, indemnify the Trust, the Owner
Trustee, the Indenture Trustee, the Certificate Paying Agent, the Certificate
Registrar, the Servicer 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 Certificates or any interest therein shall be made to any Person
unless the Depositor, the Owner Trustee, the Certificate Registrar and the
Servicer are provided with an Opinion of Counsel which establishes to the
satisfaction of the Depositor, the Owner Trustee, the Certificate Registrar
and
the Servicer that the purchase of 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 Owner Trustee,
the Certificate Registrar or the Servicer to any obligation or liability
(including obligations or liabilities under ERISA or Section 4975 of the Code)
in addition to those undertaken in the Trust Agreement, which Opinion of Counsel
shall not be an expense of the Depositor, the Owner Trustee, the Certificate
Registrar or the Servicer. In lieu of such Opinion of Counsel, a Person may
provide a certification in the form of Exhibit G to the Trust Agreement, which
the Depositor, the Owner Trustee, the Certificate Registrar and the Servicer
may
rely upon without further inquiry or investigation. Neither an Opinion of
Counsel nor a certification will be required in connection with the initial
transfer of any such Certificate by the Depositor to 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 Owner Trustee shall be entitled to conclusively
rely upon a representation (which, upon the request of the Owner Trustee, shall
be a written representation) from the Depositor of the status of such transferee
as an affiliate of the Depositor.
No
offer,
sale, transfer, pledge, hypothecation or other disposition (including any
pledge, sale or transfer under a repurchase transaction or securities loan)
of
any Certificate shall be made to any transferee unless, prior to such
disposition, the proposed transferor delivers to the Owner Trustee an Opinion
of
Counsel, rendered by a law firm generally recognized to be qualified to opine
concerning the tax aspects of asset securitization, to the effect that such
transfer (including any disposition permitted following any default under any
pledge or repurchase transaction) will not cause the Trust to be (i) treated
as
an association taxable as a corporation for federal income tax and relevant
state income and franchise tax purposes or (ii) taxable as a “publicly traded
partnership” as defined in Treasury Regulation section 1.7704-1 for federal
income tax purposes and relevant state franchise or income tax
purposes.
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.
Unless
the certificate of authentication hereon shall have been executed by an
authorized officer of the Owner Trustee, or an authenticating agent by manual
signature, this Certificate shall not entitle the Holder hereof to any benefit
under the Trust Agreement or be valid for any purpose.
THIS
CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED
IN
ACCORDANCE WITH SUCH LAWS.
IN
WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in its
individual capacity, has caused this Certificate to be duly
executed.
|
NEWCASTLE
MORTGAGE SECURITIES TRUST 2006-1
By:
WILMINGTON TRUST COMPANY,
not
in its individual capacity
but
solely as Owner Trustee
|
|||||||||||||
|
Dated:
March ____, 2006
|
By:
|
||||||||||||
|
Authorized
Signatory
|
|||||||||||||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within mentioned
Agreement.
NEWCASTLE
MORTGAGE SECURITIES TRUST 2006-1
By:
WILMINGTON TRUST COMPANY,
not
in
its individual capacity
but
solely as Owner Trustee
By:
____________________________________
Authorized
Signatory
or
_____________________________________,
as
Authenticating Agent of the Trust
By:
____________________________________
Authorized
Signatory
[REVERSE
OF CERTIFICATE]
The
Certificates do not represent an obligation of, or an interest in, the
Depositor, the Seller, the Servicer, the Indenture Trustee, the Certificate
Paying Agent, the Certificate Registrar, the Owner Trustee or any Affiliates
of
any of them and no recourse may be had against such parties or their assets,
except as expressly set forth or contemplated herein or in the Trust Agreement
or the Basic Documents. In addition, this Certificate is not guaranteed by
any
governmental agency or instrumentality and is limited in right of payment to
certain collections and recoveries with respect to the Mortgage Loans, all
as
more specifically set forth herein and in the Trust Agreement. A copy of the
Trust Agreement may be examined by any Certificateholder upon written request
during normal business hours at the principal office of the Depositor and at
such other places, if any, designated by the Depositor.
The
Trust
Agreement permits the amendment thereof as specified below, provided that any
amendment be accompanied by an Opinion of Counsel to the Owner Trustee to the
effect that such amendment complies with the provisions of the Trust Agreement
and, if [_______________] was not the Majority Certificateholder, would not
cause the Trust to be subject to an entity level tax. If the purpose of the
amendment is to correct any mistake, eliminate any inconsistency, cure any
ambiguity or deal with any matter not covered, it shall not be necessary to
obtain the consent of any Holder, but the Owner Trustee shall be furnished
with
a letter from the Rating Agencies that the amendment will not result in the
downgrading or withdrawal of the rating then assigned to any Note or the rating
then assigned to any Note. If the purpose of the amendment is to prevent the
imposition of any federal or state taxes at any time that any Security is
outstanding, it shall not be necessary to obtain the consent of the any Holder,
but the Owner Trustee shall be furnished with an Opinion of Counsel that such
amendment is necessary or helpful to prevent the imposition of such taxes and
is
not materially adverse to any Holder. If the purpose of the amendment is to
add
or eliminate or change any provision of the Trust Agreement, other than as
specified in the preceding two sentences, the amendment shall require either
(a)
a letter from the Rating Agencies that the amendment will not result in the
downgrading or withdrawal of the rating then assigned to any Note or the rating
then assigned to any Note or (b) the consent of Holders of the Certificates
evidencing a majority of the Percentage Interests of the Certificates and the
Indenture Trustee; provided,
however,
that no
such amendment shall (i) reduce in any manner the amount of, or delay the time
of, payments received that are required to be distributed on any Certificate
without the consent of the related Certificateholder, or (ii) reduce the
aforesaid percentage of Certificates the Holders of which are required to
consent to any such amendment without the consent of the Holders of all such
Certificates then outstanding.
As
provided in the Trust Agreement and subject to certain limitations therein
set
forth, the transfer of this Certificate is registerable in the Certificate
Register upon surrender of this Certificate for registration of transfer at
the
offices or agencies of the Certificate Registrar maintained by the Trust, as
provided in the Trust Agreement, accompanied by a written instrument of transfer
in form satisfactory to 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 authorized denominations evidencing the same
aggregate interest in the Trust will be issued to the designated transferee.
The
initial Certificate Registrar appointed under the Trust Agreement is JPMorgan
Chase Bank, N.A..
Except
as
provided in the Trust Agreement, the Certificates are issuable only in a minimum
Certificate Percentage Interest of 10%. As provided in the Trust Agreement
and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of authorized denominations evidencing the same aggregate
denomination, as requested by the Holder surrendering the same. No service
charge will be made for any such registration of transfer or exchange, but
the
Owner Trustee or the Certificate Registrar may require payment of a sum
sufficient to cover any tax or governmental charge payable in connection
therewith.
The
Owner
Trustee, the Certificate Paying Agent, the Certificate Registrar and any agent
of the Owner Trustee, the Certificate Paying Agent, or the Certificate Registrar
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Owner Trustee, the Certificate Paying
Agent, the Certificate Registrar or any such agent shall be affected by any
notice to the contrary.
The
obligations and responsibilities created by the Trust Agreement and the Trust
created thereby shall terminate as and when provided in accordance with the
terms of the Trust Agreement.
ASSIGNMENT
FOR
VALUE
RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE
INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
(Please
print or type name and address, including postal zip code, of
assignee)
the
within Certificate, and all rights thereunder, hereby irrevocably constituting
and appointing
to
transfer said Certificate on the books of the Certificate Registrar, with full
power of substitution in the premises.
Dated:
____________________________________*/
Signature
Guaranteed:
__________________________*/
______________________
*/
NOTICE:
The signature to this assignment must correspond with the name as it appears
upon the face of the within Certificate in every particular, without alteration,
enlargement or any change whatever. Such signature must be guaranteed by a
member firm of the New York Stock Exchange or a commercial bank or trust
company.
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for the information of the Certificate
Paying Agent:
|
Distributions
shall be made, by wire transfer in immediately available funds
to
|
||||
|
for
the account of
|
||||
|
account
number
|
or,
if mailed by check, to
|
|||
|
Applicable
statements should be mailed to
|
||||
___________________________________
Signature
of assignee or agent
(for
authorization of wire
transfer
only)
EXHIBIT
B
CERTIFICATE
OF TRUST OF
NEWCASTLE
MORTGAGE SECURITIES TRUST 2006-1
THIS
Certificate of Trust of Newcastle Mortgage Securities Trust 2006-1 (the
“Trust”), dated March ___, 2006, is being duly executed and filed by Wilmington
Trust Company, a Delaware banking corporation, as trustee, to form a statutory
trust under the Delaware Statutory Trust Act (12 Del.
Code,
§
3801
et
seq.).
1.
Name.
The
name of the statutory trust formed hereby is Newcastle Mortgage Securities
Trust
2006-1.
2.
Delaware
Trustee.
The
name and business address of the trustee of the Trust in the State of Delaware
is Wilmington Trust Company, ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
IN
WITNESS WHEREOF, the undersigned, being the sole trustee of the Trust,
has
executed
this Certificate of Trust as of the date first above written.
March
___, 2006
|
Wilmington
Trust Company,
not
in its individual capacity but solely as owner trustee under a Trust
Agreement dated as of
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
EXHIBIT
C
[FORM
OF
RULE 144A INVESTMENT REPRESENTATION]
Description
of Rule 144A Securities, including numbers:
The
undersigned seller, as registered holder (the “Seller”), intends to transfer the
Rule 144A Securities described above to the undersigned buyer (the
“Buyer”).
1.
In
connection with such transfer and in accordance with the agreements pursuant
to
which the Rule 144A Securities were issued, the Seller hereby certifies the
following facts: Neither the Seller nor anyone acting on its behalf has offered,
transferred, pledged, sold or otherwise disposed of the Rule 144A Securities,
any interest in the Rule 144A Securities or any other similar security to,
or
solicited any offer to buy or accept a transfer, pledge or other disposition
of
the Rule 144A Securities, any interest in the Rule 144A Securities or any other
similar security from, or otherwise approached or negotiated with respect to
the
Rule 144A Securities, any interest in the Rule 144A Securities 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 Rule 144A
Securities under the Securities Act of 1933, as amended (the “1933 Act”), or
that would render the disposition of the Rule 144A Securities a violation of
Section 5 of the 1933 Act or require registration pursuant thereto, and that
the
Seller has not offered the Rule 144A Securities to any person other than the
Buyer or another “qualified institutional buyer” as defined in Rule 144A under
the ▇▇▇▇ ▇▇▇.
2.
The
Buyer warrants and represents to, and covenants with, the Owner Trustee and
the
Depositor (as defined in the Amended and Restated Trust Agreement (the
“Agreement”), dated as of April 6, 2006, among Financial Asset Securities Corp.,
as Depositor, Wilmington Trust Company, as Owner Trustee, and JPMorgan Chase
Bank, N.A., as Certificate Registrar and Certificate Paying Agent) pursuant
to
Section 3.05 of the Agreement and JPMorgan Chase Bank, N.A., as indenture
trustee, as follows:
a.
The
Buyer understands that the Rule 144A Securities have not been registered under
the 1933 Act or the securities laws of any state.
b.
The
Buyer considers itself a substantial, sophisticated institutional investor
having such knowledge and experience in financial and business matters that
it
is capable of evaluating the merits and risks of investment in the Rule 144A
Securities.
c.
The
Buyer has been furnished with all information regarding the Rule 144A Securities
that it has requested from the Seller, the Indenture Trustee, the Owner Trustee
or the Servicer.
d.
Neither the Buyer nor anyone acting on its behalf has offered, transferred,
pledged, sold or otherwise disposed of the Rule 144A Securities, any interest
in
the Rule 144A Securities or any other similar security to, or solicited any
offer to buy or accept a transfer, pledge or other disposition of the Rule
144A
Securities, any interest in the Rule 144A Securities or any other similar
security from, or otherwise approached or negotiated with respect to the Rule
144A Securities, any interest in the Rule 144A Securities 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 Rule 144A Securities under the
1933
Act or that would render the disposition of the Rule 144A Securities a violation
of Section 5 of the 1933 Act or require registration pursuant thereto, nor
will
it act, nor has it authorized or will it authorize any person to act, in such
manner with respect to the Rule 144A Securities.
e.
The
Buyer is a “qualified institutional buyer” as that term is defined in Rule 144A
under the 1933 Act and has completed either of the forms of certification to
that effect attached hereto as Annex 1 or Annex 2. The Buyer is aware that
the
sale to it is being made in reliance on Rule 144A. The Buyer is acquiring the
Rule 144A Securities for its own account or the accounts of other qualified
institutional buyers, understands that such Rule 144A Securities may be resold,
pledged or transferred only (i) to a person reasonably believed to be a
qualified institutional buyer that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (ii)
pursuant to another exemption from registration under the 1933 Act.
3.
The
Buyer warrants and represents to, and covenants with, the Certificate Registrar,
the Owner Trustee, the Servicer and the Depositor that either (1) the Buyer
is
(A) not an employee benefit plan (within the meaning of Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), or a
plan (within the meaning of Section 4975(e)(1) of the Internal Revenue Code
of
1986 (“Code”)), which (in either case) is subject to ERISA or Section 4975 of
the Code (both a “Plan”), and (B) is not directly or indirectly purchasing the
Rule 144A Securities on behalf of, as investment manager of, as named fiduciary
of, as trustee of, or with “plan assets” of a Plan, or (2) the Buyer understands
that registration of transfer of any Rule 144A Securities to any Plan, or to
any
Person acting on behalf of any Plan, will not be made unless such Plan delivers
an opinion of its counsel, addressed and satisfactory to the Certificate
Registrar, the Owner Trustee, the Servicer and the Depositor, to the effect
that
the purchase and holding of the Rule 144A Securities by, on behalf of or with
“plan assets” of any Plan is permissible under applicable law, would not
constitute or result in a prohibited transaction under ERISA or Section 4975
of
the Code, and would not subject the Depositor, the Owner Trustee, the
Certificate Registrar or the Servicer to any obligation or liability (including
liabilities under ERISA or Section 4975 of the Code) in addition to those
undertaken in the Agreement, which Opinion of Counsel shall not be an expense
of
the Depositor, the Owner Trustee, the Certificate Registrar or the
Servicer.
4.
This
document may be executed in one or more counterparts and by the different
parties hereto on separate counterparts, each of which, when so executed, shall
be deemed to be an original; such counterparts, together, shall constitute
one
and the same document.
IN
WITNESS WHEREOF, each of the parties has executed this document as of the date
set forth below.
|
Print
Name of Seller
|
Print
Name of Buyer
|
||
|
By:
|
By:
|
||
|
Name:
|
Name:
|
||
|
Title:
|
Title:
|
||
|
Taxpayer
Identification:
|
Taxpayer
Identification:
|
||
|
No:
|
No:
|
||
|
Date:
|
Date:
|
||
ANNEX
1 TO EXHIBIT C
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR
BUYERS OTHER THAN REGISTERED INVESTMENT COMPANIES]
The
undersigned hereby certifies as follows in connection with the Rule 144A
Investment Representation to which this Certification is attached:
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
(“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.
|
|
___
|
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.
|
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.
|
___
|
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.
|
|
___
|
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
or
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
Adviser.
The Buyer is an investment adviser registered under the Investment
Advisers Act of 1940.
|
|
___
|
SBIC.
The 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.
The Buyer is a business development company as defined in Section
202(a)(22) of the Investment Advisers Act of 1940.
|
|
___
|
Trust
Fund.
The Buyer is a trust fund whose trustee is a bank or trust company
and
whose participants are exclusively (a) plans 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,
or (b) employee benefit plans within the meaning of Title I of the
Employee Retirement Income Security Act of 1974, but is not a trust
fund
that includes as participants individual retirement accounts or H.R.
10
plans.
|
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) 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.
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. 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.
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.
|
Will
the Buyer be purchasing the Rule 144A
|
||||
|
Yes
|
No
|
Securities
only for the Buyer's own account?
|
6.
If the
answer to the foregoing question is “no”, the Buyer agrees that, in connection
with any purchase of securities sold to the Buyer for the account of a third
party (including any separate account) in reliance on Rule 144A, the Buyer
will
only purchase for the account of a third party that at the time is a “qualified
institutional buyer” within the meaning of Rule 144A. In addition, the Buyer
agrees that the Buyer will not purchase securities for a third party unless
the
Buyer has obtained a current representation letter from such third party or
taken other appropriate steps contemplated by Rule 144A to conclude that such
third party independently meets the definition of “qualified institutional
buyer” set forth in Rule 144A.
7.
The
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 Rule 144A Securities will constitute a reaffirmation
of
this certification as of the date of such purchase.
________________________________________
Print
Name of Buyer
|
By:
|
________________________________
|
Name:
Title:
Date:
__________________________________
ANNEX
2 TO EXHIBIT C
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[FOR
BUYERS THAT ARE REGISTERED INVESTMENT COMPANIES]
The
undersigned hereby certifies as follows in connection with the Rule 144A
Investment Representation to which this Certification is attached:
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 (“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, 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.
|
____
|
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) bank
deposit Notes and certificates of deposit, (iii) loan participations, (iv)
repurchase agreements, (v) securities owned but subject to a repurchase
agreement and (vi) currency, interest rate and commodity swaps.
5.
The
Buyer is familiar with Rule 144A and understands that each of the parties to
which this certification is made 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.
The
undersigned will notify each of the parties to which this certification is
made
of any changes in the information and conclusions herein. Until such notice,
the
Buyer's purchase of Rule 144A Securities will constitute a reaffirmation of
this
certification by the undersigned as of the date of such purchase.
|
___________________________________________
|
||
|
Print
Name of Buyer
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
IF
AN ADVISER:
|
||
|
Print
Name of Buyer
|
||
|
Date:
|
||
EXHIBIT
D
CERTIFICATE
OF NON-FOREIGN STATUS
This
Certificate of Non-Foreign Status (“certificate”) is delivered pursuant to
Section 3.03 of the Amended and Restated Trust Agreement, dated as of April
6,
2006 (the “Trust Agreement”), among Financial Asset Securities Corp., as
Depositor, Wilmington Trust Company, as Owner Trustee and JPMorgan Chase Bank,
N.A., as Certificate Registrar and Certificate Paying Agent, in connection
with
the acquisition of, transfer to or possession by the undersigned, whether as
beneficial owner for U.S. federal income tax purposes (the “Beneficial Owner”),
or nominee on behalf of the Beneficial Owner of the Certificates, Series 2006-1
(the “Certificate”). Capitalized terms used but not defined in this certificate
have the respective meanings given them in the Trust Agreement.
Each
holder must complete Part I, Part II (if the holder is a nominee), and in all
cases sign and otherwise complete Part III.
In
addition, each holder shall submit with the Certificate an IRS Form W-9 relating
to such holder.
To
confirm to the Trust that the provisions of Sections 871, 881 or 1446 of the
Internal Revenue Code (relating to withholding tax on foreign partners) do
not
apply in respect of the Certificate held by the undersigned, the undersigned
hereby certifies:
|
Part
I -
|
Complete
Either A or B
|
|
A.
|
Individual
as Beneficial Owner
|
|
1.
|
I
am (The Beneficial Owner is ) not a non-resident alien for purposes
of
U.S. income taxation;
|
|
2.
|
My
(The Beneficial Owner's) name and home address
are:
|
;
and
|
3.
|
My
(The Beneficial Owner's) U.S. taxpayer identification number (Social
Security Number) is
|
B. Corporate,
Partnership or Other Entity as Beneficial Owner
|
1.
|
(Name of the Beneficial Owner) is not a foreign corporation, foreign
partnership, foreign trust or foreign estate (as those terms are
defined
in the Code and Treasury
Regulations;
|
|
2.
|
The
Beneficial Owner's office address and place of incorporation (if
applicable) is
|
;
and
|
3.
|
The
Beneficial Owner's U.S. employer identification number is
.
|
Part
II
- Nominees
If
the
undersigned is the nominee for the Beneficial Owner, the undersigned certifies
that this certificate has been made in reliance upon information contained
in:
an
IRS
Form W-9
a
form
such as this or substantially similar
provided
to the undersigned by an appropriate person and (i) the undersigned agrees
to
notify the Trust at least thirty (30) days prior to the date that the form
relied upon becomes obsolete, and (ii) in connection with change in Beneficial
Owners, the undersigned agrees to submit a new Certificate of Non-Foreign Status
to the Trust promptly after such change.
Part
III
- Declaration
The
undersigned, as the Beneficial Owner or a nominee thereof, agrees to notify
the
Trust within sixty (60) days of the date that the Beneficial Owner becomes
a
foreign person. The undersigned understands that this certificate may be
disclosed to the Internal Revenue Service by the Trust and any false statement
contained therein could be punishable by fines, imprisonment or
both.
Under
penalties of perjury, I declare that I have examined this certificate and to
the
best of my knowledge and belief it is true, correct and complete and will
further declare that I will inform the Trust of any change in the information
provided above, and, if applicable, I further declare that I have the authority*
to sign this document.
______________________________
Name
______________________________
Title
(if
applicable)
______________________________
Signature
and Date
*Note:
If
signed pursuant to a power of attorney, the power of attorney must accompany
this certificate.
EXHIBIT
E
FORM
OF
INVESTMENT LETTER [NON-RULE 144A]
[DATE]
Wilmington
Trust Company, as Owner Trustee
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▇▇▇▇▇▇▇▇▇▇,
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JPMorgan
Chase Bank, N.A.
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Re:
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Newcastle
Mortgage Securities Trust 2006-1 Trust Certificates,
Series
2006-1 (the “Certificates”)
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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 (the “Code”), 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 Trust Agreement.
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Very
truly yours,
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[TRANSFEREE]
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By:
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Authorized
Officer
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EXHIBIT
F
TRANSFEROR
CERTIFICATE
Wilmington
Trust Company, as Owner Trustee
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▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
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JPMorgan
Chase Bank, N.A.
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▇▇▇▇ ▇▇▇▇▇, ▇▇▇
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Re:
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Proposed
Transfer of Trust Certificates,
Newcastle
Mortgage Securities Trust ▇▇▇▇-▇
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▇▇▇▇▇▇▇▇▇:
This
certification is being made by ____________________ (the “Transferor”) in
connection with the proposed Transfer to _____________________ (the
“Transferee”) of a trust certificate (the “Trust Certificate”) representing ___%
fractional undivided interest in Newcastle Mortgage Securities Trust 2006-1
(the
“Trust”) created pursuant to a Trust Agreement, dated as of March ___, 2006
(such agreement, as amended by the Amended and Restated Trust Agreement dated
April 6, 2006, being referred to herein as the “Trust Agreement”) among
Financial Asset Securities Corp. (the “Company”), Wilmington Trust Company, as
Owner Trustee (the “Owner Trustee”) and JPMorgan Chase Bank, N.A., as
certificate registrar and certificate paying agent (the “Certificate
Registrar”). Initially capitalized terms used but not defined herein have the
meanings assigned to them in the Deposit Trust Agreement. The Transferor hereby
certifies, represents and warrants to, and covenants with, the Company, the
Owner Trustee and the Certificate Registrar that:
Neither
the Transferor nor anyone acting on its behalf has (a) offered, pledged, sold,
disposed of or otherwise transferred any Trust Certificate, any interest in
any
Trust Certificate or any other similar security to any person in any manner,
(b)
has solicited any offer to buy or to accept a pledge, disposition or other
transfer of any Trust Certificate, any interest in any Trust Certificate or
any
other similar security from any person in any manner, (c) has otherwise
approached or negotiated with respect to any Trust Certificate, any interest
in
any Trust Certificate or any other similar security with any person in any
manner, (d) has made any general solicitation by means of general advertising
or
in any other manner, or (e) has taken any other action, that (as to any of
(a)
through (e) above) would constitute a distribution of the Trust Certificates
under the Securities Act of 1933 (the “Act”), that would render the disposition
of any Trust Certificate a violation of Section 5 of the Act or any state
securities law, or that would require registration or qualification pursuant
thereto. The Transferor will not act in any manner set forth in the foregoing
sentence with respect to any Trust Certificate. The Transferor has not and
will
not sell or otherwise transfer any of the Trust Certificates, except in
compliance with the provisions of the Trust Agreement.
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Date:
________________________________
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___________________________________________
Name
of Transferor
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___________________________________________
Signature
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___________________________________________
Name
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___________________________________________
Title
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EXHIBIT
G
[DATE]
Wilmington
Trust Company, as Owner Trustee
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▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
JPMorgan
Chase Bank, N.A.
▇
▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
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Re:
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Proposed
Transfer of Trust Certificates,
Newcastle
Mortgage Securities Trust 2006-1 (the
“Certificates”)
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Gentlemen:
This
certification is being made by _______________
(the
“Transferee”) in connection with the proposed Transfer by ______________
(the
“Transferor”) of a trust certificate (the “Trust Certificate”) representing __%
fractional undivided interest in Newcastle Mortgage Securities Trust 2006-1
(the
“Trust”) created pursuant to a Trust Agreement, dated as of March ___, 2006
(such agreement, as amended by the Amended and Restated Trust Agreement dated
April 6, 2006, being referred to herein as the “Trust Agreement”) among
Financial Asset Securities Corp. (the “Company”), Wilmington Trust Company, as
Owner Trustee (the “Owner Trustee”) and JPMorgan Chase Bank, N.A., as
certificate registrar and certificate paying agent (the “Certificate
Registrar”). Initially capitalized terms used but not defined herein have the
meanings assigned to them in the Trust Agreement. The Transferee hereby
certifies, represents and warrants to, and covenants with, the Company, the
Owner Trustee and the Certificate Registrar that:
(i) either
(a) or (b) is satisfied, as marked below:
___ a. The
Transferee is not any employee benefit plan or other arrangement 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”) (each, a “Plan”),
a Person acting, directly or indirectly, on behalf of a 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;
or
___ b. The
Transferee is a Person acting, directly or indirectly, on behalf of a 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 and will provide the Depositor, the Owner Trustee, the Certificate
Registrar and the Servicer with an Opinion of Counsel, satisfactory to the
Depositor, the Owner Trustee, the Certificate Registrar and the Servicer, to
the
effect that the purchase and holding of a Certificate by or on behalf of the
Transferee is permissible under applicable law, will not constitute or result
in
a prohibited transaction under Section 406 of ERISA or Section 4975 of the
Code
(or comparable provisions of any subsequent enactments) and will not subject
the
Depositor, the Owner Trustee, the Certificate Registrar or the Servicer to
any
obligation or liability (including liabilities under ERISA or Section 4975
of
the Code) in addition to those undertaken in the Trust Agreement, which opinion
of counsel shall not be an expense of the Depositor, the Owner Trustee, the
Certificate Registrar or the Servicer; and
(ii) the
Transferee is familiar with the prohibited transaction restrictions and
fiduciary responsibility requirements of Sections 406 and 407 of ERISA and
Section 4975 of the Code and understands that each of the parties to which
this
certification is made is relying and will continue to rely on the statements
made in this paragraph.
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Very
truly yours,
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||||||||
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By:
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||||||||
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Name:
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||||||||
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Title:
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||||||||
EXHIBIT
H
FORM
OF TRANSFEREE CERTIFICATE
Wilmington
Trust Company, as Owner Trustee
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▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
JPMorgan
Chase Bank, N.A.
▇
▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
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Re:
|
Proposed
Transfer of Trust Certificates,
Newcastle
Mortgage Securities Trust ▇▇▇▇-▇
|
▇▇▇▇▇▇▇▇▇:
This
certification is being made by ____________________ (the “Transferee”) in
connection with the proposed Transfer of a trust certificate (the “Trust
Certificate”) representing ___% fractional undivided interest in Newcastle
Mortgage Securities Trust 2006-1 (the “Trust”) created pursuant to a Trust
Agreement, dated as of March ___, 2006 (such agreement, as amended by the
Amended and Restated Trust Agreement dated April 6, 2006, being referred to
herein as the “Trust Agreement”) among Financial Asset Securities Corp. (the
“Company”), Wilmington Trust Company, as Owner Trustee (the “Owner Trustee”) and
JPMorgan Chase Bank, N.A., as certificate registrar and certificate paying
agent
(the “Certificate Registrar”). Initially capitalized terms used but not defined
herein have the meanings assigned to them in the Deposit Trust Agreement. The
Transferee hereby certifies, represents and warrants to, and covenants with,
the
Company, the Owner Trustee and the Certificate Registrar that:
The
Transferee (i) is a REIT, a Qualified REIT Subsidiary or an entity that is
wholly-owned by a REIT or a Qualified REIT Subsidiary and disregarded for
federal income tax purposes within the meaning of Section 856(a) or Section
856(i) of the Code, (ii) shall maintain such status at all times that it is
the
beneficial owner of the Trust Certificates, (iii) shall remain the beneficial
owner of a 100% undivided interest in the Trust Certificates until it transfers
such Trust Certificates and (iv) shall transfer the Trust Certificates only
in
compliance with the Trust Agreement.
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Date:
_______________________________
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___________________________________________
Name
of
Transferee
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___________________________________________
Signature
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___________________________________________
Name
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___________________________________________
Title
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